ALAN OLSON

HELENA — Wednesday in Helena, advocates made their case on whether the state correctly granted NorthWestern Energy a permit for their planned power plant near Laurel.

The Montana Supreme Court met before a full audience Wednesday morning, to hear oral arguments in a case that centers on whether the Montana Department of Environmental Quality did sufficient environmental analysis when approving an air quality permit for the Yellowstone County Generation Station – a 175-megawatt natural-gas-fired plant.

Last year, a state district judge in Billings vacated the permit. It came after environmental groups challenged DEQ’s decision, saying the agency hadn’t taken the required “hard look” at issues like the plant’s greenhouse gas emissions and the impact of its lighting and noise on nearby residents.

During Wednesday’s arguments, DEQ and NorthWestern defended the permitting decision and called on the Supreme Court to reverse the district court ruling.

Shannon Heim, NorthWestern’s general counsel and vice president of federal government affairs, said greenhouse gases aren’t regulated the same way as other pollutants, so DEQ didn’t have authority to regulate them. Therefore, she argued the permit can’t be vacated simply because the department didn’t review their impacts.

“The DEQ could not, in the exercise of its lawful authority, deny the permit based on greenhouse gas emissions, because there are no legal standards for greenhouse gas emissions,” she said.

Jonathon Ambarian

Jenny Harbine, an attorney for Earthjustice, represented the plaintiffs – Montana Environmental Information Center and the Sierra Club. She argued DEQ is required to look more broadly at the possible impacts of a project, and that the emissions from the Laurel plant had to be considered in the context of the potential effects of climate change in Montana.

“Plaintiffs here are not criticizing the analysis that DEQ did do,” she said. “Our point is that there’s analysis that DEQ omitted.”

Harbine said plaintiffs are also concerned that, because the district court put a stay on its decision and NorthWestern was able to resume construction, they could begin operations without having had the full review plaintiffs believe is necessary.

Both sides in this case noted that the issues raised here overlap with those in Held v. Montana, the prominent climate change lawsuit that is also now before the Montana Supreme Court. In Held, a state district judge ruled that a law preventing regulators from considering greenhouse gas emissions in environmental reviews was unconstitutional. The 2023 Montana Legislature passed that law in response to the judge’s decision that vacated the permit for the Laurel plant.

Jonathon Ambarian

Jeremiah Langston, an attorney for DEQ, said the department had been planning to update its review in light of that law when it was blocked. He encouraged the Supreme Court to make its decision in Held and this case at the same time or somehow tie them together.

“It would be immensely helpful to DEQ to know what laws apply to its MEPA analysis for a project,” he said.

Harbine said Held gave an example of the broad impacts of the state’s policies on climate reviews, and this case provided a specific example.

“I would just urge that whether the issue is resolved in this case or in Held – or in both, which we think is most appropriate – that it be done in a manner that prevents the constitutional infringement that would be caused when that plant begins operating and emitting greenhouse gas emissions before those emissions have been studied by DEQ,” she said.

The Supreme Court generally takes no immediate action after an oral argument, and that was again the case Wednesday.

Jonathon Ambarian

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After the hearing, the conservation group Northern Plains Resource Council held a rally at the State Capitol, saying the possible impacts of the Laurel plant’s emissions need to be taken into account.

Those in attendance chanted “Clean and healthful; it’s our right!” – referring to the Montana Constitution’s guarantee of a “clean and healthful environment.”

Mary Fitzpatrick, a Northern Plains member, said people in Laurel and downwind of the plant in Billings have concerns about the potential health effects. MTN asked her what she thought would have changed if DEQ had taken a closer look at the plant’s greenhouse gas emissions.

“It’s hard to say – you know, just listening to the arguments, I got the impression that, possibly, nothing – except that we would know,” she said. “You can’t manage or change what you don’t measure.”

John Hines, NorthWestern’s vice president of supply and Montana government affairs, said the company sees the capacity of the Yellowstone County Generating Station as critical to make sure they can keep serving customers when other resources aren’t available. He said solar and wind production tends to be more unreliable during extreme weather, and that the company will be forced to pay more to purchase power on the open market if it doesn’t have a on-demand generation facility like this.

“The bottom line is we have to have enough electrons and enough gas on our system to meet our customers’ needs when it’s critical weather – and, you know, we saw that in January when it was -45,” he said. “That’s our first obligation. And none of the groups who are throwing out alternative proposals have that responsibility.”

Hines said, if YCGS had been in operation during the January cold snap, it could have saved customers about $12 million over six days. He said renewables are a significant part of NorthWestern’s portfolio, and that it’s unfair for opponents to accuse the company of building the plant for profit because they could make more profit by building the same capacity in renewable projects.

Hines said YCGS could be fully operational within the next month and a half. He said NorthWestern has taken steps to address some of the concerns neighbors have raised about lighting and noise.

“We’ve been operating Yellowstone now in a test mode for quite some time, and local people have been asking us when are we going to start the engines,” he said. “So obviously the noise issue has been abated.”

The Spanish Peaks Mountain Club has requested a permit from the Montana DEQ.

By Justin Franz MONTANA FREE PRESS

The Spanish Peaks Mountain Club in Big Sky has asked for a permit from the Montana Department of Environmental Quality to let it turn wastewater into snow for skiing and snowboarding. The private club is the second Montana ski area to try and implement snowmaking technology that proponents say is good for the environment and skiers amid a warming climate. 

More than a dozen ski areas in eight states, plus some in Canada, Switzerland and Australia, use wastewater to make powder. This past winter, the Yellowstone Club near Big Sky became the first in Montana to turn what was once sewage into snow. The Spanish Peaks Mountain Club and Yellowstone Club share a common parent company, CrossHarbor Capital Partners, but they operate as separate businesses. The Spanish Peaks terrain is operated by Big Sky Resort and accessible to the public. 

If approved, Spanish Peaks Mountain Club would use the treated water to make snow on approximately 44.5 acres of groomed runs on Spirit Mountain and the Spanish Creek base area and about 40.7 acres in the Southern Comfort ski area. The ski area would mostly use the treated snow in November and December to build a base during the early season. 

The project would be built out in two phases. During phase one, the ski area would use 23 million gallons of treated water per year to make about 18 to 24 inches of snow. During phase two, that would increase to 44 million gallons of water annually. 

DEQ has prepared a draft environmental assessment and is accepting comments on the plan through June 6. 

In an emailed statement to Montana Free Press, Spanish Peaks’ Vice President of Environmental Operations Richard Chandler wrote, “We are very excited about this effort and appreciate the Department of Environmental Quality’s careful review. The conservation community in Montana has embraced the concept of turning reclaimed water into base layer snow to reuse our precious resources, recharge the aquifer and extend cold water flow into our rivers in the late summer months. Projects like these will help add resiliency to the Gallatin River, especially during drought years.”

Chandler, who also oversees the Yellowstone Club’s environmental operations, has previously said that turning recycled water into snow is better for the environment than just releasing it into a river, which normally is what happens. By shooting it through the snowmaking equipment (it’s essentially misted onto the slopes as snow) the wastewater is treated again. Then, as it melts in the spring and enters the ground, it’s filtered a third time. Because of that, groups like the Gallatin River Task Force, Trout Unlimited, American Rivers, Great Yellowstone Coalition and the Association of Gallatin Agricultural Irrigators all supported the Yellowstone Club project.

The effort to turn wastewater into snow in Big Sky dates back more than a decade. In 2011, the Gallatin River Task Force, Yellowstone Club and DEQ teamed up to study the concept. The idea was that as climate change made the region’s snowpack more unpredictable, they could serve skiers and the watershed by making snow from treated water that is traditionally just put into rivers and other bodies of water. That winter they successfully turned a half-million gallons of wastewater into two acres of snow about 18 inches deep. 

In 2020, the Yellowstone Club applied for a permit from DEQ to expand that pilot program into a permanent snowmaking operation on Eglise Mountain. The following year, the state issued a permit allowing the Yellowstone Club to turn 25 million gallons of wastewater into snow annually. Two years and $12 million later, the new system began making snow last November. 

Under the current plan, 80% of the recycled water comes from the Big Sky community, and 20% comes from the Yellowstone Club. For the Spanish Peaks project, all of the water will come from the Big Sky County Water and Sewer District wastewater treatment facility.