By Anne Hedges
In early April, a Yellowstone County judge ruled that the Montana Department of Environmental Quality (DEQ) had failed to comply with the law when it conducted a cursory environmental analysis of the impacts of a methane gas-fired power plant near Laurel. At issue was DEQ’s air pollution permit for NorthWestern Energy’s proposed 175-megawatt gas plant on the banks of the Yellowstone River. DEQ was required to disclose the impacts of the project so the public could understand and comment on impacts to air quality, water, climate, the river corridor, neighboring landowners, public safety, and more. Unfortunately, DEQ ignored public concerns and failed to properly analyze a number of impacts the plant will have on the neighboring community and the environment.
In his decision, the judge found that DEQ ignored very significant impacts that the plant would have on the climate and neighboring landowners. As required by previous Montana Supreme Court decisions, when a state agency fails to analyze and disclose such impacts to the public, the permit is voided until the agency conducts a proper analysis and allows the public to provide the agency with feedback regarding the impacts.
The people who live near the proposed power plant – many of whom are part of the Thiel Road Coalition – are rightfully concerned about how it will impact their lives, health, businesses, property, and the Yellowstone River. The power plant will be extremely loud, light up the night sky along the banks of the river, pump toxic pollutants into the air, and add 770,000 tons of greenhouse gases annually to an already-saturated atmosphere (an amount equivalent to the annual emissions of 167,327 vehicles). Yet, DEQ refused to analyze them or disclose the impacts that will occur. Montana’s summers are already becoming hotter and drier, harming agriculture, resulting in catastrophic wildfires that impair public health and ruin tourist economies, and destroying habitat and fisheries. DEQ’s failure to consider these significant impacts results in real world harm.
The judge issued a very narrow decision. He ruled that the 2011 amendments to the Montana Environmental Policy Act (MEPA) did not prohibit the state from considering climate impacts within Montana’s borders as the agency had argued. Instead he said the plain language of MEPA still required the state to analyze climate impacts when conducting environmental analyses, but it limited those analyses to those impacts that are happening within the state. He said that he did not need to determine whether the 2011 amendments were constitutional since climate change needed to be considered according to the plain language of the statute.
NorthWestern appealed the decision, but DEQ has not yet. Both appear to be waiting for legislation to pass that is intended to exempt DEQ from having to consider climate as a part of the environment (see article). The only thing that is certain is that the court will need to determine whether our right to a clean and healthful environment includes a right to a healthy climate. It’s hard to fathom a reasonable argument in which the climate is not considered to be a part of our environment and thereby protected under Montana’s Constitution.
This article was published in the June 2023 issue of Down To Earth.