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Energy bills face huge test; Proposals would make it harder to fight projects

What may be the most significant environmental-policy/energy bills of the session face a crucial vote today in the Montana House - a vote that could go a long way toward getting the bills through the Legislature. The bills sponsored by Rep. Llew Jones, R-Conrad, would restrict how citizens and citizen groups can appeal permits for energy projects such as power plants and transmission lines.

HELENA - What may be the most significant environmental-policy/energy bills of the session face a crucial vote today in the Montana House - a vote that could go a long way toward getting the bills through the Legislature.

The bills sponsored by Rep. Llew Jones, R-Conrad, would restrict how citizens and citizen groups can appeal permits for energy projects such as power plants and transmission lines.

If the measures get approval from the House, which is split 50-50 between Democrats and Republicans, they have a good chance to sail through the Republican-controlled Senate, supporters and opponents of the bills acknowledge.

On the eve of this vote, the Gazette State Bureau takes a closer look at how these bills would change the current appeals and environmental-review process for energy projects: Any changes in who can appeal a project's air-quality permit? Yes. Now, anyone who is "jointly or severally" affected by a potential plant can appeal. House Bill 483 changes it so only those "directly" affected can appeal.

How soon must you file an appeal? Current law allows appeals within 30 days of a permit being issue. HB483 reduces that window to just 15 days.

Does it change... more [truncated due to possible copyright]  

HELENA - What may be the most significant environmental-policy/energy bills of the session face a crucial vote today in the Montana House - a vote that could go a long way toward getting the bills through the Legislature.

The bills sponsored by Rep. Llew Jones, R-Conrad, would restrict how citizens and citizen groups can appeal permits for energy projects such as power plants and transmission lines.

If the measures get approval from the House, which is split 50-50 between Democrats and Republicans, they have a good chance to sail through the Republican-controlled Senate, supporters and opponents of the bills acknowledge.

On the eve of this vote, the Gazette State Bureau takes a closer look at how these bills would change the current appeals and environmental-review process for energy projects: Any changes in who can appeal a project's air-quality permit? Yes. Now, anyone who is "jointly or severally" affected by a potential plant can appeal. House Bill 483 changes it so only those "directly" affected can appeal.

How soon must you file an appeal? Current law allows appeals within 30 days of a permit being issue. HB483 reduces that window to just 15 days.

Does it change where the appeal is filed? Now, an air-quality permit is appealed to the state Board of Environmental Review, which is appointed by the governor. Under HB483, if an appeal is filed, the developer can make the appeal go directly to District Court in the same county where the project is proposed.

Does it change time limits on deciding an appeal? Yes. Appeals before the Board of Environmental Review currently can be decided 90 days after a hearing is held, but that time limit be extended fairly easily. Under HB483, the board must decide any appeal within 150 days of receiving an appeal - unless both parties agree to an extension.

Does it limit what can be appealed? Yes. Currently, those appealing permits can bring up new information and additional issues that might not have been reviewed by the state before issuing the permit.

Under HB483, neither party can bring up legal issues that weren't first presented to the agency issuing the permit. However, some new evidence could be presented, if there is a change in federal law or a judicial decision after the initial review.

Does it limit what the court can consider on the appeal? Yes. HB483 says a District Court also cannot consider new issues, except under the exception regarding changes in federal law or from another judicial decision.

Does it require those who appeal to post a bond? Generally, yes. Existing law allows the Board of Environmental Review to make the appellants post a bond that would cover any damages resulting from delaying the project, if the appellant loses the appeal

HB483 requires anyone appealing to post the bond, unless the person is indigent.

Does it tighten the evidence standards for proving the company isn't mitigating its environmental impacts? Yes, regarding whether the "best available control technology" is adequate for not causing environmental damage. Now, appellants can use a "preponderance of evidence" to show that the technology isn't doing the job. Under HB483, that standard is increased to "clear and convincing evidence," which is much tougher to meet.

Does it give developers more time to start the project, before a permit expires? Yes. Right now, permits usually give the developer one year to three years to begin construction. HB483 says that time can be extended up to 12 months while the permit is appealed. Construction is forbidden during that extension.

Any other significant changes on court challenges and permits? Yes. Under current law, if a court is deciding whether the state properly reviewed the project, the court can halt or delay the permitting process until it decides - or until the state corrects the error.

Under HB566, sponsored by Jones, the court cannot delay the permitting process. The state can continue to process the permit and even issue it, while the court considers whether the environmental review is adequate.


Source: http://www.billingsgazette....

FEB 25 2009
http://www.windaction.org/posts/19264-energy-bills-face-huge-test-proposals-would-make-it-harder-to-fight-projects
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