Montana Environmental Policy Act
Protecting Public Health, Fish and Wildlife by Restoring Balance to the Montana Environmental Policy Act
The 2001 legislature amended the Montana Environmental Protection Act (MEPA) to restrict state agencies from conditioning permits to protect public and environmental health based on information gathered during the environmental review.
Consequently, agencies must now grant permits even if they know communities, fish and wildlife may be put in jeopardy. The legislature needs to restore the ability of state agencies to use information gathered in the permitting review process to protect public health and safety and our environment.
Background
Since 1971, MEPA has been Montana's bedrock environmental law. MEPA requires state agencies to consider the environmental, social, cultural and economic impacts of proposals like mines, power plants, subdivisions, and timber sales before the project is approved. The purpose of MEPA is to foster informed state government decisions. Described as a "look before you leap" law, MEPA has resulted in state agencies making better decisions based on community concerns for over 30 years.
A 2000 study done by the Montana Environmental Quality Council at the request of the 1999 legislature found that MEPA has resulted in state agencies making ultimately better and legally defensible decisions. The study noted that state agencies have rarely used MEPA ‘substantively,’ i.e., to set permitting requirements not specifically covered by the state’s public health and environmental protection laws. Examples where agencies used the law substantively – but still allowed projects to go forward - include mitigations to alleviate traffic problems, minimize fish and wildlife impacts, protect public safety, and provide for management of noxious weeds.
Specific examples include:
• Lewis and Clark County landfill: The public was concerned about high traffic on a narrow road, dust on dirt roads and an historic cabin site on the landfill. Although not required to under state law, the state and county agreed to pave the road, require all garbage to be dropped off at the transfer station in town, and to protect the historic cabin site.
• Stillwater mine: The community was concerned about the traffic volume going to the mine. The State conditioned the permit to require carpooling or bussing to cut down on traffic. The State also required mitigation measures for wildlife habitat impacts.
• Yellowstone Pipeline: DEQ decided to al low the Yellowstone Pipeline to cut an open trench across the Clark Fork River. As a result of the envi ronmental as sessment , DEQ put restrictions on the timing of the project to avoid periods when various species of trout were spawning. It also included a laundry list of best management practices for sediment handling and erosion control to minimize sediment and heavy metals impact to water quality.
Despite the EQC study findings, in 2001 the legislature amended MEPA to prevent state agencies from conditioning or denying a permit to protect communities, wildlife and fisheries based on information gathered during the MEPA process unless a specific permitting law allows such conditions. Unfortunately, there are no permitting laws that give agencies the power to generally protect public health, safety, fish or wildlife. This sets up conflicts with our constitutional right to a clean and healthful environment.
Warnings that the change in law would substantially decrease environmental safeguards are proving true. In specific state permitting decisions since then, state agencies have been unable to place conditions on permits to protect fish and wildlife from identified harm associated with a natural gas pipeline under a riverbed, or from a Hutterite colony irrigation permit; to protect public health and safety from gunfire at a shooting range near a school and several public roads, or from excess industrial traffic, noise, and pollution; or to minimize grizzly bear mortalities.
Examples of areas in which state agencies do not have statutory authority to mitigate health, safety and environmental impacts:
• Asbestos - There is no ambient air quality standard at the state or federal level for asbestos or for tremolite asbestos, the type of asbestos found in Libby. Montana Department of Environmental Quality (DEQ) can regulate on-site but not off-site asbestos.
• Community Traffic and Safety - Outside of incorporated areas, there is no statute that allows communities to control hours of operation, traffic issues, school safety issues, etc. According to a 2001 memo from John North, chief legal council for DEQ: “DEQ has no authority [to] regulate traffic, school safety, and public road maintenance” for any of its permits.
• Fish and Wildlife Protection - There are no statutory protections for wildlife calving areas, spawning areas, winter ranges, sites important for waterfowl protection, or other sensitive wildlife locations. Fish can be protected only indirectly through water quality laws. According to the same memo from John North: “DEQ cannot deny or condition a mine permit to protect wildlife...” The only "conditioning of a permit" DEQ can do for wildlife is to require revegetation of land that is being reclaimed, but it can't require operators to avoid sensitive wildlife areas.
Both the 2003 and 2005 legislatures defeated measures to restore Montana’s ability to condition permits for major industrial projects in order to protect public health and safety, fish and wildlife. In 2005, the bill - SB 281 (Carol Williams, D-Missoula) – failed to pass on a tie vote.
Recommendations for the Future
The 2007 legislature must restore Montana’s ability to prevent undue harm to our families and wildlife when permitting major projects with potentially significant impacts. Agencies must be allowed to use information gathered through an environmental review to make permitting decisions that will protect public health, safety, fish and wildlife.
Statutory Reference
Specific Montana Statutory References (Montana Code Annotated 2005) can be found at www.data.opi.state.mt.us/ bills/mca_toc/index.htm: Montana Environmental Policy Act: Title 75, Chapter 1, Part 1
