MEIC Wins Round Three in Roundup Power Project Lawsuit Number One

On April 19th, 2005, the Montana Supreme Court ruled in favor of MEIC in one of its cases involving the Roundup Power Project (RPP). A unanimous five-judge panel said that the Board of Environmental Review applied the wrong standard when it considered MEIC’s appeal of RPP’s first air quality permit.

MEIC appealed the permit in February 2003 because DEQ did not require the plant to use the best pollution control technology available. In addition, federal law prohibits DEQ from approving a project if it adversely impacts visibility in Class I airsheds (areas where the air is more pristine, such as national parks and wilderness areas). DEQ’s environmental studies clearly showed that there would be adverse impacts to many Class I areas including the Northern Cheyenne Reservation, Yellowstone National Park, UL Bend Wildlife Refuge, and the Absaroka Wilderness area. DEQ asserted that only federal land managers could protect Class I airsheds.

The Board of Environmental Review heard this case in 2003 and ruled in favor of DEQ and RPP on nearly every count. MEIC then appealed to the district court, which also rejected MEIC’s claims. But the Montana Supreme Court agreed with MEIC. It ruled that the Board used an incorrect standard of review when it decided the case in the first place. The Board’s entire decision is therefore flawed and must be reconsidered. The court also found that the State does have an obligation to consider the impact on visibility in Class I airsheds, and that the State’s obligation is in addition to that of the federal land managers.

This legal challenge will now return to the Board of Environmental Review. Governor Schweitzer recently appointed four of the seven members of the Board. That means that the majority of the Board was not involved in the 2003 hearing. The Board will have to decide at its June 2005 meeting how it will reconsider the case in light of the Supreme Court’s opinion, and the fact that most of its members are unfamiliar with the facts of the case.

MEIC has two other legal challenges involving RPP. One involves the air quality permit for hazardous air pollutants such as mercury. The other argues that DEQ failed to comply with the Montana Environmental Policy Act and to protect the Montana Constitutional right to a clean and healthful environment.

The recent decision by the Supreme Court has implications for the case involving hazardous air pollutants, because the Board also used an inappropriate standard of review in deciding MEIC’s appeal.

MEIC looks forward to taking one or both of these cases back to the Board. This Board seems far more willing to weigh all of the facts when deciding issues, rather than merely rubber-stamping what DEQ recommends.