Montana Environmental Information Center v. Montana Department of Environmental Quality

A Montana District Court granted NorthWestern Energy’s motion to stay the court’s April 2023 order vacating a permit for the Laurel Generating Station, a new gas-fired power plant. In the April order, the court found that the Montana Department of Environmental Quality’s Montana Environmental Policy Act (MEPA) review should have considered impacts from lighting and the effect of the power plant’s carbon dioxide emissions within Montana’s borders. In its order granting the stay, the court noted that “much changed in the legal landscape” in the two months since the court vacated the permit, including amendments to the MEPA language on which the court relied and a Montana Supreme Court decision clarifying the remedies that are available when a court finds than an agency failed to take a hard look at environmental impacts. The court described the MEPA amendments as “eliminat[ing] the requirement that agencies look at the impacts of carbon dioxide emissions within the boundaries of the state of Montana as part of an environmental assessment.” Regarding the Supreme Court decision, the district court said the decision clarified that vacatur was an improper remedy under MEPA’s current remedial provisions. The court said the MEPA amendments were likely to be challenged as unconstitutional but concluded that it had no jurisdiction to address the constitutional issues given that a notice of appeal had already been filed. [Editor’s note: In June 2023 a court in Montana <a href="https://climatecasechart.com/case/11091/">held</a> a trial on the constitutionality of the MEPA restrictions on consideration of climate change.] The court found that three of the four factors for determining whether to grant a stay weighed in favor of the defendants. First, they made a strong showing that they were likely to succeed on the merits given the changed legal landscape. Two, they would be irreparably injured absent a stay given the cost increase that would result from a construction delay. Three, a stay pending appeal would not change the remedies available to the plaintiffs or affect their ability to properly raise the constitutional questions presented by the MEPA amendment. With respect to the fourth factor—“where the public interest lies”—the court found that there was “no objective legal answer.” The court said the stay would remain in effect during the pendency of the appeal to the Supreme Court.

A Montana District Court vacated a permit granted by the Montana Department of Environmental Quality (DEQ) for construction and operation of a gas-fired power plant on the Yellowstone River in eastern Montana. The court found that DEQ violated the Montana Environmental Policy Act (MEPA) by excluding the analysis of greenhouse gas emissions from their environmental review. The court held that DEQ based its decision to exclude this analysis on a misinterpretation of a 2011 statute that provides that an environmental review conducted pursuant to MEPA “may not include a review of actual or potential impacts beyond Montana’s borders” or “actual or potential impacts that are regional, national, or global in nature.” The court found that this provision “does not absolve DEQ of its MEPA obligation to evaluate a project’s environmental impacts within Montana” and that DEQ “must take a hard look at the greenhouse gas effects of this project as it relates to impacts within the Montana borders.” The court also found that DEQ failed to take a hard look at lighting impacts. The permit applicant <a href="https://www.northwesternenergy.com/about-us/news-articles-events/2023/04/07/northwestern-energy-will-appeal-district-court-order-vacating-air-quality-permit-for-yellowstone-county-generating-station">said</a> it would appeal the decision and seek a stay.