Numerous bills look to streamline permits for energy projects

The bills coming under fire

HELENA - A bevy of bills aimed at limiting appeals and litigation of environmental permits for major energy projects are making headway in the Legislature.

Those bills have some environmentalists concerned that the 2009 session could end up being one of the worst in recent memory for environmental protection.

On Saturday, four bills that would revamp environmental permitting laws advanced in the House and Senate.

A bill by Sen. Keith Bales, R-Otter, gained Senate approval and moves on to the House, and three bills by Rep. Llew Jones, R-Conrad, cleared the House Federal Relations, Energy and Telecommunications committee, and head to the floor for a vote later this week (see accompanying list for bill details).

Streamlining the environmental permitting process has been a top legislative priority of Republicans for the past several sessions. Supporters of energy production say the public's ability to file "endless appeals" kills projects, stymies economic growth and prevents the creation of well-paying jobs in Montana.

In the past, Democrats managed to block the most ambitious efforts to rewrite the state's bedrock environmental laws, but this session Republicans control the Senate and have a 50-50 tie in the House, with some Democrats appearing poised to support GOP efforts to limit environmental appeals of major energy projects.

House Speaker Bob Bergren, a Democrat from Havre, said Friday that he might be willing to support bills that make it easier for responsible projects to move forward.

"It shouldn't be a never-ending appeals process," Bergren said. "There has to be some happy medium in the mix. Some of the bills, in their current form, are they something I could support? I can't say that."

The future of these bills may ultimately come down to Gov. Brian Schweitzer, a Democrat, who must sign any piece of legislation before it becomes law.

"We'll find out how the governor really feels about environmental protection and citizens' rights when these bills get to his desk," said Anne Hedges of the Montana Environmental Information Center.

Hedges said supporters of the bills have a new catalyst this session: the failed plan for a coal-fired power plant near Great Falls.

Hedges said Southern Montana Electric Generation and Transmission Co.'s decision earlier this month to pull the plug on plans for the coal-fired Highwood Generating Station and instead use a smaller, natural-gas-fired plant has given new ammunition to supporters of rolling back some of the state's environmental laws.

"The problem is that perception is more important than reality up here," Hedges said. "Legislators hear the rhetoric and they don't want to be seen as part of the problem, and so they vote in ways that are not based on facts."

Hedges said the original Highwood plant failed because funding for coal-fired plants dried up throughout the nation because of economic uncertainty, rapidly escalating costs and anticipation of new federal carbon regulation - not because of appeals or litigation in Montana.

However, many Republican lawmakers say a series of "endless appeals," over the Highwood plant's air-quality permit created regulatory uncertainty that led to the plant's financial troubles.

While much of the committee and floor testimony has centered on SME's failed coal-fired plant, Republicans say the problem is bigger than one project.

"This is not just about Highwood," Jones said. "What's happened from transmission lines to other projects is that we're beginning to get a reputation as a state where 'yes' doesn't mean yes. DEQ (the Department of Environmental Quality) does its job and gets the permits out, but then these companies can't do anything because of these suits. We get a reputation that this is not a good place to invest."

Jones is pushing bills that would make it easier for major energy projects to clear the permitting process; Republicans in the Senate are backing bills aimed at the same target.

On Saturday the Senate passed Bales' bill to restrict citizen appeals of state-approved projects. Senate Bill 387 would limit the timeframe in which appeals could be filed to 15 days from when the permit is issued by the state. Additionally, bill would limit citizen-initiated appeals to matters originally considered by environmental regulators. In other words, if the issue wasn't addressed by the agency, it can't be appealed by the public.

The permittee can appeal for any reason, under the bill.

SB 287 is nearly identical to Jones' House Bill 483, which faces a full House vote this week.

Hedges said those bills make it almost impossible for citizens to appeal projects that could violate private property rights or have serious public health consequences.

"We're going to be at the mercy of state agencies to do the right thing, and these bills will be followed by endless litigation," Hedges said. "There will be no citizen oversight of bad agency decisions. Agencies would be able to ignore the law and the citizens would not be able to appeal."

Hedges said that only a small fraction of environmental permits are ever appealed. She noted that of the 4,273 air- and water-quality permits issued by the DEQ in the past three years, only three were appealed by the public, while nine were appealed by the permit applicants.

Schweitzer's office is working with Jones on HB 483. On Friday, Jones met with Evan Barrett, the governor's chief economic development adviser, to hash out amendments to the measure.

To Hedges' point, Barrett said the percentage of permits that are appealed is not the issue.

"The issue isn't the permits. The issue is the appeals," Barrett said. "So when you go to measure it, you need to measure it against what happens with appeals, even if there aren't that many of them. The procedures that are in place now allow appeals to go on and on and on. So if we can do something that does not restrict people's ability to go in and protect themselves in court, but at the same time we streamline the processes, then we're doing a favor for everybody."

Hedges said that if lawmakers are looking to avoid appeals and litigation, then they're on the wrong track with Bales' and Jones' bills.

"These bills violate the constitution, and they violate federal law," Hedges said. "Many of these bills are going straight to court."