Montana’s Major Facility Siting Act
The Montana Legislature passed the Major Facility Siting Act (MFSA) 30 years ago to regulate the siting of most large energy producing, conversion and transporting facilities in Montana.
The MFSA reflected the legislatures’ recognition that the development of such facilities affects the environment, communities, and the health and welfare of Montanans. The purposes of the MFSA were to ensure protection of the state’s environmental resources and consideration of socioeconomic impacts, while providing for a coordinated and efficient authorization process that allowed the public a voice in the siting of such facilities.
Actions by recent legislatures, however, have rendered the MFSA an empty shell of what it once was, leaving Montana communities and citizens with no voice in the face of large industrial energy developments. Given the current high level of interest in additional energy generation and transmission facilities in Montana, spurred by the impacts of energy deregulation and high energy prices, the 2007 Legislature should restore provisions of the MFSA to ensure that industrial energy developments are environmentally compatible, and in the public interest.
Background
Thirty years ago, the legislature passed the Major Facility Siting Act when confronted with the prospects of Montana becoming the ‘boiler room’ for the rest of the nation: there was considerable pressure to develop the state’s low-cost energy resources for out-of-state energy consumers. The statute (75-20-102, MCA) details the legislature’s policy in passing the Act, namely, its constitutional obligations under Article II, section 3, and Article IX of the Montana Constitution to maintain and improve a clean and healthful environment for present and future generations, protect the environmental life support system from degradation, and prevent unreasonable depletion and degradation of natural resources.
When first passed, the MFSA required power plants, energy pipelines and transmission lines to show that they served the public interest, convenience and necessity, and were environmentally compatible. It established a review process that allowed for expedited consideration of such facilities, and allowed for waivers in certain conditions (immediate need, sudden largescale unemployment). In short, it was a statute designed to implement the Montana Constitution and prevent unnecessary environmental degradation.
Over the years, legislatures slowly dismantled the Act by exempting certain types of energy facilities from MFSA regulation: refineries, qualified “innovative energy” projects, smaller and shorter pipelines, and certain lower capacity transmission lines and power plants. Legislatures also changed and shortened the review process.
In 1997, legislators dealt the MFSA a major blow when they voted to eliminate the requirement that developers demonstrate the need for energy generation plants and show that a project is in the public interest.
A second major blow came in 2001 when legislators removed power plants outright from any review under the MFSA, again shortening review timelines and exempting additional facilities, including most pipelines.
The MFSA sustained more weakening amendments in 2003 and 2005. Some amendments were proposed to benefit specific projects, such as the Roundup Power Plant or Express Pipeline’s Canada-Alberta petroleum pipeline. As a result of all these changes, the MFSA currently does little to protect Montanans faced with the development of large-scale industrial facilities. All power plants and most transmission lines and pipelines are exempt from review under the MFSA. The shortened review time and the reduced fees severely limit the ability for any meaningful state review.
In 2003, the Montana Environmental Information Center filed a lawsuit against the state for permitting the Bull Mountain coal facility, arguing in part that the legislature’s exemption of power plants from the Major Facility Siting Act was essentially unconstitutional. MEIC contends that the Legislature arbitrarily excluded the construction and operation of power plants – including therefore the Bull Mountain project - from Siting Act review without regard to the plants’ nature or volume of the environmental impacts, which is unconstitutional. This case is now before the Montana Supreme Court.
Recommendations for the Future
Once again, Montana faces the very real prospect of becoming the ‘boiler room’ for energy consumers in California and elsewhere. The Major Facility Siting Act can help guide responsible energy development. It can ensure that socioeconomic and environmental impacts are considered when an industrial energy facility is proposed in Montana. In the absence of such consideration, communities and citizens will be hurt and lawsuits will surely result.
The 2007 legislature should restore provisions of the MFSA so that it once again covers power plants, additional energy pipelines and transmission lines. Developers should be required to show that the development of such facilities are in the public interest and are environmentally compatible. Reviewing agencies must be given the time and resources to appropriately review these projects in an efficient and timely manner.
Constitutional Reference
Montana Constitution can be found at leg.state.mt.us/css/mtcode_const/ const.asp: Section 3 - Declaration of Rights: Inalienable Rights; and Article IX – Environment and Natural Resources.
Statutory Reference
Specific Montana Statutory References (Montana Code Annotated 2003, can be found at http://data.opi.state.mt.us/bills/ mca_toc/index.htm): Major Facility Siting - Title 75, Chapter 20
