The Montana Department of Environmental Quality and Environmental Quality Council might soon analyze climate impacts from energy projects in order to uphold Montanans’ constitutional right to a clean and healthful environment, according to draft recommendations from a workgroup.

The group of 20 people that are looking into ways to clarify and update the Montana Environmental Policy Act was convened in January by the Department of Environmental Quality and consists of lawmakers, energy industry representatives, environmental and conservation groups, tribes, environmental studies experts, and private citizens.

MEPA is a statute passed by Montana lawmakers in 1971 to ensure the legislature is fully considering the environmental impacts of state actions, and is passing laws that uphold the Montana Constitution’s protections of a clean and healthful environment and that the public is informed of them.

The work group’s task is to review how, and if, MEPA should be updated to clarify its role in both protecting the environment and permitting decisions, as well as to try to kickstart methods by which the DEQ can analyze greenhouse gas emissions and climate impacts from projects while the Held v. Montana appeal is decided by the Montana Supreme Court this summer.

Last August, Judge Kathy Seeley found a legislative “limitation” to MEPA, which prohibited the state from considering greenhouse gas emissions or climate impacts when permitting energy and mining projects, was unconstitutional because it violated Montanans’ rights to a clean and healthful environment.

The DEQ released the working group’s 40-page draft report last week, and the full group met Wednesday in what was its second-to-last meeting to discuss the recommendations, voice any dissent, and suggest any final tweaks as the department finalizes the report next week. The full group is set to meet one final time on June 27 to sign off on the report.

“I think we’ve landed on a set of recommendations that really reflected the challenges that I feel in MEPA,” said DEQ Director Chris Dorrington. “I don’t agree with all the recommendations as they all come out, I’m just going to be honest. I think there are still things that are very challenging for the agency to both view and implement, and I think that’s fair, too.”

How the report will be utilized

The meeting showed some hardened divides – especially between conservation groups and energy groups – remain about MEPA’s role in the permitting process, how the courts have interpreted challenges under MEPA, how to best analyze emissions and climate impacts, whether the legislature is fulfilling its duties to the constitution and the environment, and what might become reality out from the recommendations.

The working group was divided into three subgroups — climate analysis, MEPA process and applicability, and public engagement and education. Each group developed a list of challenges that needed to be addressed and multiple recommendations on how to do so, which are compiled in the final report.

Subgroup recommends outline to perform climate analyses

MEPA and its underlying permitting statutes are key in determining whether some of the most controversial projects — including mines, power plants like the one NorthWestern Energy is building in Laurel, gravel pits, and wastewater pools — receive permits from the state based on their expected impacts to the environment and nearby residents.

The climate analysis subgroup’s challenge was finding a way for DEQ and other agencies to develop a short-term outline of how they could perform climate analyses in the MEPA process while the Held appeal is still pending and before the legislature convenes next January. The Supreme Court will hear oral arguments in the case on July 10.

The subgroup came up with two recommendations. The first says the DEQ should draft an interim study bill asking the Environmental Quality Council to look at different models to analyze climate impacts and a statutory framework that will hold up regardless of how the court rules in Held.

“While the Legislature will likely contemplate other MEPA legislation in 2025, this interim study can encourage legislators from both sides of the aisle to have an open mind and thoughtfully weigh the pros and cons to certain approaches on climate analysis,” the draft report says.

The second says DEQ should consider “the reasonably foreseeable (greenhouse gas) emissions of a proposed action” alongside a no-action alternative and “any reasonable alternatives.”

The draft report says the DEQ should assume that either part or all of Seeley’s decision in Held will be upheld by the Supreme Court and should take the time before the decision comes down to estimate costs of those analyses, how many employees it might need to perform them, and to study how other states or municipalities perform climate analyses.

But the report also notes there is disagreement about what type of climate analyses should be used by the state, a risk of litigation over which are chosen, and that the Republican-supermajority legislature – which strengthened the prohibition on climate analysis during last year’s session ahead of the Held trial – has “strong feelings” about climate analyses. 

There was some disagreement about what the DEQ could do on its own without guidance from the legislature next year, and whether an interim study would be effective. 

“I think we’re going to still be talking about climate analysis in two years, in four years, in 10 years. That doesn’t mean there won’t be action, but this won’t be decided on one point and then never discussed again,” Bennion said.

Report recommends more clarity on MEPA process for public

The public engagement, education and outreach subgroup found the department needed to better clarify for the public what type of public meetings should be held  for various types of projects to cut down on confusion and set expectations from the beginning.

It also found that over the years, the legislature has not funded the EQC adequately enough to continue internal education and training on MEPA, nor updated resources for the public about how the process works. The group recommended adding at least one full-time staffer who could perform such work.

The group also recommended clarifying what type of comments the DEQ is asking for when it comes to the public review process and suggested building a clearinghouse of educational materials on MEPA on the DEQ’s website to make the laws more readily understandable.

The MEPA process and applicability subgroup found there needs to be a better public understanding of the types of actions, assessments, and reviews are required under MEPA.

Recommendation to re-organize MEPA statutes met with contention by some

But another subgroup also recommended the legislature re-organize the MEPA statutes “to clarify the legislative intent that MEPA is procedural, and distinctly different from the substantive statutes that regulate environmental impacts.” 

For years conservation and environmental groups have argued whether MEPA has been about the procedures for permitting projects or meant to outline environmental policy. 

“MEPA, neither in its original construction nor through amendment was ever intended to provide the substantive protections guaranteed in the Constitution; but rather to provide a transparent public process in which to analyze and disclose potential threats to the human environment,” the draft report says.

The subgroup also recommended that the legislature change the language of MEPA so it “clearly limits the ability of procedural challenges to hold up permits that could otherwise be issued.” It also recommends changing  MEPA analyses so that they include “a balanced view of social, economic, and environmental impacts” – a nod to impacts businesses might face as permits are held up or denied.

The report notes some of the subgroup members disagreed about whether the legislature needed to re-write the laws, but Darryl James, a consultant for energy companies who co-led the subgroup, said the act should merely specify the procedures the agency must follow.

The Montana Environmental Information Center’s Anne Hedges told him the group would write a strong dissent to the recommendation and that she believed the group was attempting to re-write 25 years of case law and “trying to pretend those (court) decisions didn’t happen.”

Montana Trout Unlimited’s Clayton Elliott broke up the back-and-forth between the two by suggesting the work group should consider more public outreach before moving to have the legislature reorganize or re-write the laws.

“When I read your recommendation, it sort of seems like we’re pursuing the most aggressive treatment for the problem rather than starting with aspirin,” Elliott said.

James said he agreed more outreach should be the first step before putting pen to paper on those plans.

The work group will have to send their written dissents and opinions to DEQ by the end of the week for those to go into the final report, which will likely be released to the public by the end of next week.

The public comment portal for the draft report will remain open until June 17 for people to submit their own thoughts on the proposals, and the group is set to meet at 4 p.m. on June 27 to sign off on the report.

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