IN THE NEWS:

MEIC Challenges Air Quality Permit for Roundup Power Project

MEIC has filed two lawsuits in State district court challenging the proposal to build a massive 780-megawatt coal-fired power plant near Roundup, Montana. Because of shenanigans by the last two legislatures that make it harder for citizens to challenge air and water quality permits, MEIC was forced to file two separate lawsuits. Both relate to the Montana Department of Environmental Quality’s decision to issue an air quality permit to the Roundup Power Project. The first lawsuit alleges violations of Montana clean air laws in the issuance of the permit. The second questions the sufficiency of the analysis under the Montana Environmental Policy Act, and the constitutionality of the permit itself.

Air Permit Appeal

Montana law requires someone challenging an air quality permit to first file an administrative appeal with the Board of Environmental Review before going to district court. After DEQ issued the permit to the Roundup Project in January, MEIC and Environmental Defense filed an administrative appeal with the Board, which is attached to DEQ and whose members are appointed by the Governor.

When the Board granted the developer’s request in March for an extremely expedited hearing schedule, it seemed unlikely that the Board would give thoughtful consideration to our concerns. So we focused on hiring expert witnesses and building a factual and legal record that would provide a district court judge, and possibly the Montana Supreme Court, with the information necessary to more thoroughly consider the environmental impacts of the project and the violations of law.

Specifically, we argued that DEQ failed to comply with Montana’s Clean Air Act by ignoring the best pollution control technology for the plant. Other concerns included the allowance of high emissions of sulfur dioxide, nitrogen oxides, particulates, and mercury, and the visibility impacts to the Northern Cheyenne Reservation, Yellowstone National Park, UL Bend Wildlife Refuge, and the Absaroka Wilderness area (all so-called Class I areas). We were also concerned that the developer and DEQ did little to limit the greenhouse gas emissions that result from the burning of coal.

The result of the Board hearing in June was predictable. The board said that although DEQ had not followed its own protocol for analyzing the permit and pollution control technologies, and although DEQ needed to write rules so that in the future it would be required to follow that protocol, in this instance it was acceptable that the department had ignored its own procedures. The Board then approved the permit. MEIC has appealed that decision to district court.

Another short-sighted law passed by the 2003 legislature required MEIC to sue DEQ over this permit in district court in Roundup. The bill’s supporters hoped that local political pressure would influence judges’ decisions. MEIC, on the contrary, expects all judges will be guided by the law and decide cases on their merits.

MEPA and the Constitution

In 2001, the Montana legislature changed the law to require all appeals of State agency decisions involving the Montana Environmental Policy Act to be filed within 60 days in district court. Of course the law did not account for the possible delay that would occur when a permit is administratively appealed to the Board. The result of this legislative oversight is that citizens are forced to go to court to challenge a MEPA decision before the Board has a chance to review a permit and possibly make changes. This required MEIC to file a separate MEPA lawsuit in Helena on the Roundup Project prior to the Board issuing a final air quality permit.

So in March, MEIC filed a suit against DEQ for failing to comply with MEPA and failing to protect the Montana constitutional right to a clean and healthful environment. The two main focuses of the suit are that the environmental impact statement for the project completely ignored concerns about mercury emissions, and that the project would lead to an unnecessary and substantial increase of greenhouse gas emissions.

By DEQ’s own estimate, this project would single-handedly increase statewide greenhouse gas emissions by a staggering 27%. DEQ, claiming that the Montana Clean Air Act does not require it to control greenhouse gas emissions, required no control measures. MEIC believes that the State Constitution’s provision that says “the state and each person shall maintain and improve a clean and healthful environment” obligates the State to at least consider alternatives to reduce these emissions.

In the case of mercury, instead of analyzing mercury emissions and control technologies during the MEPA process, the department said it would go through a separate process at some future date to determine what the mercury emissions should be. (The agency is just now beginning that process.) Unfortunately, the process will not require DEQ to analyze the environmental, social, or economic impacts of mercury emissions. Only MEPA requires that level of analysis. But mercury is a potent neurotoxin. Coal-fired power plants are the leading source of mercury releases in the country. MEIC believes the impacts of mercury emissions and control measures must be closely studied before the plant can be permitted.

RECENT DEVELOPMENTS

• DEQ Flip-Flops on Roundup Permit (November 2005)
• (April 20, 2005) Review of air permit ordered (Associated Press) HELENA - The Montana Supreme Court on Tuesday ordered the state Board of Environmental Review to take another look at its decision upholding the issuance of an air-quality permit for a coal-fired power plant planned near Roundup. Read story.
• MEIC Wins Round Three in Roundup Power Project Lawsuit Number One