Montana Viewpoint


February 18, 2001

Those who want to change the two major pieces of Montana´s environmental and sociological impact laws are using the current (sorry) electrical crisis as compelling justification. Changing the Montana Constitution is on the agenda as well. The two laws, the Montana Environmental Policy Act (MEPA) and the Major Facilities Siting Act (MFSA) were created early in the 1970s to address, well, major problems in Montana. MEPA was enacted in 1971 by a Republican House of Representatives, a Democratic Senate, and a Democratic Governor. It was introduced by Representative George Darrow, a Billings Republican, was passed by the Legislature with one dissenting vote, and was supported by the Montana Wood Products Association, the Montana Stockgrowers Association, the Montana Council of Churches, and GASP (Gals Against Smog and Pollution) among others. Darrow claimed that MEPA "legislated foreknowledge" of the effects of projects on Montana´s environment. One supporter said it was needed to "achieve needed development and use of our natural resources while concurrently protecting …our environment." Just what most people claim to want to do today.

The next year, the Montana Constitutional Convention met to write the 1972 Constitution. Into Montana´s version of the Bill of Rights was written: "All persons are born free and equal and have certain inalienable rights. They include the right to a clean and healthful environment…" (Article II section 3). This is the constitutional provision being challenged. The amendment would let the Legislature decide what "clean and healthful" mean. It´s worth pointing out that it would also give the Legislature the ability to decide what another part of the same section, "…defending their lives and liberties…" means.

MFSA got its origin in the days when the huge coal-fired electrical generating facilities in Colstrip were being built. Simply put, MEPA and MFSA are designed to study the possible effects of major and minor projects on Montana´s people and environment. Recently, resource dependent industries and organizations have come to feel that these acts are inhibiting economic growth in that sector of the economy because of the time needed to study projects. Most prominently, the permitting —rather, the lack of permitting—of the ASARCO Rock Creek mine near Noxon and the Seven-up Pete mine near Lincoln have served as reasons why MEPA should be changed.

Do these acts hamper development? Supporters of MFSA point out that MFSA has never significantly delayed a project, and point to a 500 Megawatt gas-fired generation plant being built in Butte. The plant and its gas transmission lines are subject to MFSA review, and Continental Energy, the builders, say they have no problem with it. There are projects delayed by MEPA, but supporters claim that the delays are more due to the complexities of the project than bureaucratic delay. The permitting process for the Rock Creek mine began in the mid–1980s, and isnÕt done yet. MEPA supporters argue that the company itself has asked for time delays and has submitted incomplete documents to the permitting agencies. Most importantly the federal version of MEPA (NEPA) is the controlling factor, and there have been significant delays there. Interestingly enough, the Montanore mine, which is just over the Cabinet Divide from Rock Creek and in the adjoining ore body was permitted in 36 months. Exclusive of four projects, the average time of permitting a metal mine under MEPA is 15 months.

The 1999 Legislature created a committee to study MEPA with regard to timeliness and effectiveness and to report its findings to the 2001 Legislature. The committee consisted of equal numbers of Republican and Democratic legislators and four members of the public. Their recommendations have been put into bill form, and are currently proceeding through the Legislature. The Western Environmental Trades Council (WETA) feels the recommendations don´t go far enough, and have also introduced bills to address the problem. The words used by the opposing factions are "fix" and "gut" depending on how you feel.

Meanwhile, the energy crisis caused by deregulation is being used as a rallying cry by WETA and their allies as good reason to relax MEPA and MFSA so power plants can be built—and quickly! As well, they feel the Constitution is a hindrance to economic development, and want to put a Constitutional Initiative on the ballot this May to remove the "clean and healthful environment" language. Last fall, I asked a fellow who was putting in a large post and pole plant in Superior how hard it was to please the governmental agencies he had to deal with, considering the potential for chemical pollution of the nearby river. I often think of his answer. "It´s simple," he said, "find out what they want you to do, and then do twice as much. What can they do to you?"

Jim Elliott
Phone: 406-444-1556
Mail: State Senate Helena, MT 59620