Natural Disaster 

Republican legislators wage war on Montana's environmental laws

Anne Hedges has lobbied the Montana Legislature on behalf of the Montana Environmental Information Center (MEIC) since the early 1990s, and only on a few occasions has she found herself as exasperated as she was two weeks ago.

The Senate Natural Resources Committee held a hearing on Joint Resolution No. 10, a measure brought forward by freshman Sen. Jason Priest, R-Red Lodge, that urges the U.S. Congress to prevent the Environmental Protection Agency (EPA) from regulating greenhouse gases. The resolution further calls on the Obama administration to undertake a study specifying the cumulative effects of all of the EPA's air quality regulations on the economy, jobs and American economic competitiveness. It also tells Congress to impose a moratorium on any new air quality regulations for at least two years—and defund the EPA's existing air quality regulatory activities during that time.

"Defund all air regulations for the next two years?" Hedges asked incredulously during her spirited 15-minute testimony before the committee. "Are you serious?" she said, looking squarely at Priest. "This is radical!

"The list of environmental regulations that protect public health is long," Hedges continued. "It's things like regulations that limit the amount of sulfur dioxide that go into Billings' air shed, that protect kids from asthma in Billings. It's limitations on things like lead emissions. The Clean Air Act has resulted in a 99 percent reduction in lead emissions across this country. It's things like reductions in dioxin and mercury and benzene and cadmium. These things protect families. They protect property values. And they protect against asthma, cancer, heart disease and death. What you're asking is to defund air regulations. That to me is a really radical notion, and I can't believe for a second that that's what your constituents really want you to do up here."

Hedges' testimony didn't appear to sway the mostly Republican committee members, although the committee did amend the language about halting the EPA's air quality regulations for two years. It left the rest of the resolution intact. On Feb. 11, SJ 10 was endorsed by a vote of 10-4.

Even if the resolution passes the House and Senate—and there's a good chance it will with Republicans controlling both chambers—it's nonbinding and can't force Congress to do anything. Hedges acknowledges this, and admits her diatribe was mostly an exercise in catharsis. Before she took the podium, Jim Jensen, MEIC's director, whispered to the person next to him, "She's loaded for bear." Afterward, Hedges told the Independent, "I love giving them a piece of my mind."

Still, SJ 10 reflects as well as any other bill being considered during the current session the level of hostility Republican legislators' hold toward the environment.

click to enlarge PHOTO BY CHAD HARDER

Last November's elections sent the political pendulum swinging far to the right. To Montana's conservation community, that pendulum seems more and more like a wrecking ball. Republicans so far have written bills to undermine or outright repeal the Montana Environmental Policy Act (MEPA), the state's bedrock environmental law. They're seeking to amend the constitution to declare that an "economically productive" environment is an inalienable right. A bevy of bills intend to remove incentives for renewable energy production. One proposal would even allow public water systems to use bottled water so they can achieve compliance with contamination thresholds.

Some of the bills, like the attempt to nullify the federal Endangered Species Act, appear to be only symbolic salvos. But the majority of the proposals attack laws protecting air and water and guiding natural resource development. Taken together, they signal a very clear message: Republicans, buoyed by anti-government fervor and the mantra of job creation, seek unfettered natural resource extraction—no matter the environmental consequences.

With Republicans holding 96 of 150 seats in the Legislature, only Gov. Brian Schweitzer's veto pen will stand in the way of many of these measures becoming law.

Sarah Cobler, a lobbyist with Montana Conservation Voters (MCV), calls the current attack on environmental laws "unprecedented."

"We all feel just a little bit shell-shocked, because we've made tremendous progress in the last six years or so moving incremental, positive environmental change forward," said Cobler at a recent Missoula County Conservation Roundtable meeting. "We've been very relevant to the conversation and major players at the table, and I'm not sure if I feel like we're still there...There's a lot coming down the pike right now. It just feels overwhelming."

•••

Sen. Priest, 43, a polished and articulate businessman, stands out among the new crop of conservative legislators swept into state office last November. He's a former Red Lodge City Council member, chairman of the Carbon County Republicans and founder of the Montana Growth Network, a group that supports energy development and opposes climate change legislation. A former All-American skier at Williams College in Massachusetts, Priest owns a handful of companies, including Hamilton Venture Holdings, LLC. He founded, but no longer owns, Medipent, LLC, a New York-based company that auctions off hospital debt to collection agencies.

click to enlarge Sen. Verdell Jackson, R-Kalispell, says he’s spent four years reading about climate change but hasn’t come across “an experiment using the scientific method” that demonstrates that carbon dioxide contributes to it. - PHOTO BY CHAD HARDER
  • Photo by Chad Harder
  • Sen. Verdell Jackson, R-Kalispell, says he’s spent four years reading about climate change but hasn’t come across “an experiment using the scientific method” that demonstrates that carbon dioxide contributes to it.

A free-market advocate, Priest has drawn the ire of the conservation community for the long list of bills he's sponsored or requested that aggressively seek to roll back progress on a host of issues, particularly relating to renewable energy and energy efficiency. Legislative observers say Priest has a bright future as a Montana lawmaker, and progressives fear he's smart enough to be a genuine threat to their interests. (Not so smart, however, to refrain from commenting on Facebook last September that economist John Maynard Keynes is a "big homo" and suggesting President Barack Obama was sodomizing America with "the dry thumb," for which Priest later apologized.)

Priest tells the Independent he's motivated by his belief that the Montana Legislature needs to have a discussion about the costs and benefits of climate change and proposed solutions to it.

"I'm not a climate change denier," he says. "You won't hear me say there's no such thing as global warming. What you will hear me say is that there are benefits and costs to potential changes in the climate. There are benefits and costs associated with mitigation agendas. What the Legislature should do is have a discussion that's transparent. Shifting, through regulation and through transfers, the costs and benefits is opaque to the ratepayer and it's opaque to the taxpayer. And the taxpayer deserves to make an informed choice."

Priest and other far-right, first-time legislators may be behind some of the more radical bills relating to the environment, but there's little distinction to be made between them and more moderate Republicans.

"You can't tell the difference," says Kyla Wiens, MEIC's energy lobbyist. "They're all voting the same."

Beyond common ideology, some Republicans display scant knowledge of environmental issues. It can result in low-level discourse that allows talking points to mask nuances and implications of policy changes, and perpetuates the false environment-versus-economy dichotomy.

Take the SJ 10 hearing on Feb. 4, which devolved into an ill-informed debate about the science behind global climate change.

"I have a greenhouse at home," said Sen. Greg Hinkle, R-Thompson Falls, in questioning Hedges' testimony. "I put dry ice in there to increase the CO2, and it helps to grow the plants a lot. So I'm wondering why is there such a big thing about this CO2 when it actually increases vegetative growth?"

"Is it warmer in your greenhouse than it is outside?" Hedges replied. "That's the problem."

"Sometimes," Hinkle said.

Sen. Verdell Jackson, R-Kalispell, said he's spent four years reading about climate change, and has "two suitcases full of books" to prove it. But he claims he hasn't come across "an experiment using the scientific method" that demonstrates that carbon dioxide—which he asserts is "certainly not a pollutant," even though the U.S. Supreme Court ruled in 2007 that it is one—contributes to climate change.

"The only thing I could find in terms of global warming is the energy from the sun, which is very well documented," Jackson said. "I could not find a correlation between global warming and carbon dioxide."

click to enlarge Rep. Champ Edmunds, R-Missoula, wants to weaken the Montana Environmental Policy Act. - PHOTO BY CHAD HARDER
  • Photo by Chad Harder
  • Rep. Champ Edmunds, R-Missoula, wants to weaken the Montana Environmental Policy Act.

Answered Hedges: "The greenhouse effect is really well understood. It's replicated every day in Sen. Hinkle's greenhouse."

Many industry groups believe they stand to gain from the stripping away of impediments to resource extraction and incentives for renewable energy. Several associations and corporations lined up to voice their support for SJ 10. Among them was Arch Coal, Inc., the country's second largest coal producer. It paid Montana $86 million last year for the right to mine the Otter Creek coal tracts in southeastern Montana. The Montana Coal Council, Cloud Peak Energy, Montana Petroleum Association, Montana Electric Cooperatives Association, Western Environmental Trade Association and the Montana Wood Products Association also testified in favor of dropping carbon dioxide regulations.

Two Tea Party activists also testified in favor of SJ 10, including Tim Ravndal of Helena's Lewis and Clark's Conservative Tea Party (who, incidentally, was removed as president of the Big Sky Tea Party Association last fall after joking on Facebook about murdering homosexuals).

"The development of natural resources in Montana creates jobs," Ravndal said. "EPA kills jobs."

On Feb. 9, the EPA, at the behest of two congressmen, released a whitepaper detailing the economic benefits of the Clean Air Act, particularly to the environmental technologies industry. By 2008 it was generating some $300 billion in annual revenues and directly supporting nearly 1.7 million jobs, according to Environmental Business Journal. Air pollution control equipment alone generated revenues of more than $18 billion in 2007, according to the U.S. Department of Commerce. From 1990 through 2020, the EPA projects the monetary value of the Clean Air Act's protection to exceed the cost of that protection by a factor of more than 30 to 1.

"I think the Priest resolution gets to the heart of what [Republicans are] saying, which is, 'There's no such thing as a benefit of environmental protections—of clean air or clean water. There are no benefits to those. There are only costs. And that the only good industries are high-carbon industries,'" Hedges says. "They turn a blind eye toward the emerging low-carbon economy that's not just occurring here but all over the world."

•••

Job creation is offered as justification for just about every bill intended to undermine environmental protections, including a highly controversial constitutional amendment.

House Bill 292, sponsored by first-term Rep. Dan Kennedy, R-Laurel, attempts to tinker with the language in the Montana Constitution that guarantees the right to a "clean and healthful environment." The language, adopted in 1972, makes the constitution one of the most progressive in the country. In 1999, the Montana Supreme Court unanimously ruled that the right to a clean and healthful environment is fundamental and intended to be preventative in nature.

Many conservative legislators believe all the language prevents is job creation. In fact, Rep. Duane Ankney, R-Colstrip, goes so far as to call the constitutional amendment a "jobs bill."

"Let's get the record straight," he said on the House floor two weeks ago. "Every time something has tried to be permitted, including Highwood [Generating Station outside Great Falls] and mines in this state, it's been taken to court under the 'clean and healthful environment' [provision]. It's always taken to court under that portion of the constitution...It was put in there to stop coal mining and any advancement of economic development of our natural resources in the state of Montana."

click to enlarge Sen. Jason Priest, R-Red Lodge, a polished and articulate businessman, stands out among the new crop of conservative legislators swept into state office last November. He’s behind a handful of bills intended to remove incentives for energy efficiency. “A mandate is an explicit recognition that it’s not a good resource allocation,” he says. - PHOTO BY CHAD HARDER
  • Photo by Chad Harder
  • Sen. Jason Priest, R-Red Lodge, a polished and articulate businessman, stands out among the new crop of conservative legislators swept into state office last November. He’s behind a handful of bills intended to remove incentives for energy efficiency. “A mandate is an explicit recognition that it’s not a good resource allocation,” he says.

That theory is why Kennedy proposes changing the language to instead guarantee "the right to a clean, healthful and economically productive environment."

Democrats on the House floor argued vehemently against the change, challenging the assertion that the inalienable right to a clean and healthful environment has halted economic development, and calling it a political diversion from lawmaking that might actually create jobs. Rep. Betsy Hands, D-Missoula, said it's telling that no small business owners are fighting for the bill.

"This bill creates confusing and contradictory language, and the only way this bill creates jobs is if it creates jobs for the lawyers...and that's not what we were sent here to do," Hands said.

First-term Rep. Ellie Hill, also of Missoula, said Montanans rejected amending the constitution last November when they voted down convening a constitutional convention.

Rep. Franke Wilmer, D-Bozeman, said mandating economic productivity is "central to socialist philosophy," and found in the Cuban and Chinese constitutions. And Rep. Mike Menahan, D-Helena, pointed out that the courts have never used the provision to stop any mine or industrial project. He said it's a "fundamental right within the fabric of other rights" and it's "never been used to the exclusion of any other right."

Still, on Feb 4., the House voted 68-32 to pass the bill on second reading. Despite the lopsided vote, opponents of the bill seated in the House gallery cheered; even if all 28 Republicans in the Senate vote for the bill, the bill would still fall four votes shy of the 100 needed to place the amendment on the ballot in 2012.

While the "clean and healthful" provision hasn't served to stop resource extraction in Montana, Elizabeth Kronk, an assistant professor of law at the University of Montana, says changing it would have real consequences.

"What concerns me about the language 'economically productive' is it's a view that the environment is to be used for economic development, and that's an interesting question for Montanans," Kronk says. "Is that how we view our environment, for development purposes? Is it for natural resource extraction? And I don't think that's a settled question in Montana. I think there's a bigger issue there that really strikes at the core of Montana, which is, Are we going to protect our environment or our we going to develop it, and potentially destroy it?"

Hedges says the "clean and healthful" provision "is a right Montanans can rely on if their backs are ever up against a wall."

•••

Missoula Rep. Champ Edmunds, a first-term Republican, went to Helena with the intention of repealing the Montana Environmental Policy Act (MEPA), the cornerstone of environmental policy in Montana. MEPA, which mirrors the National Environmental Policy Act, requires state agencies to consider the environmental impacts of their plans before moving forward.

"I think MEPA is a big reason why we have so many lawsuits," Edmunds tells the Independent.

Edmunds, however, dropped his bid to repeal MEPA once the session commenced. He says party leadership made it clear that "there are some other bills that are going to address MEPA that'll have the same effect, or the same outcome, that I want, which is more utilization of our natural resources."

The leading MEPA reform bill appears to be Senate Bill 233, sponsored by Sen. Jim Keane, D-Butte. SB 233 would essentially make MEPA voluntary. The bill says that if a state agency fails to comply with MEPA, courts cannot stop a project from proceeding.

Edmunds believes the biggest barrier to more companies doing business in Montana is the uncertainty that MEPA presents.

click to enlarge Anne Hedges, who has lobbied the Montana Legislature on behalf of the Montana Environmental Information Center since the early 1990s, harangues the Senate Natural Resources Committee about SJ 10, a resolution that asks Congress not to regulate greenhouse gases. - PHOTO BY CHAD HARDER
  • Photo by Chad Harder
  • Anne Hedges, who has lobbied the Montana Legislature on behalf of the Montana Environmental Information Center since the early 1990s, harangues the Senate Natural Resources Committee about SJ 10, a resolution that asks Congress not to regulate greenhouse gases.

"Businesses need to have some degree of certainty that when they come here and spend a lot of time and a lot of money moving forward on a project that they can complete it," he says.

But there's little evidence to support the notion that MEPA does anything more than delay projects—and even examples of delays are few and far between.

"To say that MEPA stops projects is inaccurate," says UM's Kronk. "At the very most it slows them down so that appropriate environmental and cultural and historical considerations can come into play, which is obviously incredibly important for Montana."

Edmunds counters by arguing that if the state delays projects long enough, companies move out.

"That's part of the tactic, in my opinion, of these extreme environmental groups," he says. "They know that if they can stall it long enough, the companies will stop moving forward and will move out. So their motive may not be to completely stop it, but just delay it, delay it, delay it, delay it. Meanwhile, the company's got millions of dollars on the line and spending thousands a day, and they finally say, 'The heck with it.'"

MEPA was already attacked once, in 2001. A bill was passed to prohibit agencies from using information discovered in the MEPA process to protect the environment unless another law authorizes it to do so. Another allows the Montana Department of Environmental Quality only six months to complete environmental impact statements after receiving a permit application.

What remains, Hedges says, is "the only information gathering tool we have left."

"It really is just about giving people information about what is going to happen to their property, to their livelihoods, to their health," she says. "The idea is that that information will help lead to better decisions, and it does...But what they want to do is get it to the point where it's just voluntary...They don't want to get rid of it entirely, because people might not be happy with that. So what they're doing is just cutting the legs out from underneath it, so there's nothing left that people can do."

SB 233 would also prohibit the consideration of regional, national or global impacts like climate change, a provision that appears intended to clear the way for the potential exportation of Montana coal, especially from Otter Creek. If Arch Coal gains regulatory approval to mine Otter Creek, some half-billion tons of coal would be shipped to Asia.

Hedges holds out hope that Gov. Brian Schweitzer, a Democrat, will veto SB 233, based on his statements that Otter Creek can be mined under the state's current environmental laws.

"I don't think Schweitzer is going to fall for this," she says. "It's so shallow. MEPA hasn't prevented any projects from going forward that anybody can think of in anybody's memory."

SB 233 passed out of the Senate Natural Resources Committee on Feb. 7 by a vote of 10-4 and is headed to the Senate floor.

click to enlarge Sen. Debby Barrett, R-Dillon, introduced a bill to revise the definition of renewable energy resources to include hydroelectric power. - PHOTO BY CHAD HARDER
  • Photo by Chad Harder
  • Sen. Debby Barrett, R-Dillon, introduced a bill to revise the definition of renewable energy resources to include hydroelectric power.

Undermining MEPA while at the same time amending the constitution to encourage resource extraction could prove to be a dangerous combination.

"The proposed change to the 'clean and healthful' provision suggests to me that there's a belief that we should move toward more natural resource development," Kronk says. "And then I become particularly concerned when I see that at the same time there's a proposal to limit or even get rid of MEPA, which is the statute that is going to help us do that in an environmentally responsible manner. So those two provisions to me, taken together, are incredibly disconcerting."

•••

Equally disconcerting for those promoting renewable energy are the slew of bills that take away incentives for renewable energy development and energy efficiency. One of them, Senate Bill 109, "makes my blood curdle," says MCV's Sarah Cobler.

Cobler and other opponents of the bill, sponsored by Sen. Debby Barrett, R-Dillon, view it as an underhanded attack on Montana's renewable energy standard, which requires that utilities get 15 percent of their energy from renewable sources by 2015. Then-state Sen. Jon Tester created the standard in 2005. Barrett's bill would revise the definition of renewable energy resources to include hydroelectric power, thereby encouraging the use of energy from hydroelectric dams while effectively removing incentives for wind, solar and other renewable energy sources.

"It would destroy the law that has done so much for us and I think is the biggest environmental victory in the last 10 years," Cobler says.

In early 2005, Montana produced less than one megawatt of wind energy, according to the governor's office. Now the state produces nearly 400 megawatts.

"It's working," Cobler says. "It's creating hundreds of new jobs and [leading to] hundreds of millions of dollars of capital investment in Montana in rural counties like around the Judith Gap wind farm in central Montana. It basically says Montana's open for business for clean, renewable energy resources...This bill would tinker with that definition of an eligible renewable resource to include power produced from century-old dams. They don't need incentive, right? They've been going for 100 years."

Priest has also drafted a handful of bills seeking to remove incentives for energy efficiency. He says his reasoning is rooted in the belief that government shouldn't mandate certain activities with taxpayer money.

"Clearly if you have to mandate an activity, there's some question as to whether people value it," he says. "Otherwise they'd be doing it. So clearly if you have to create a system of transfers, where somebody needs a dollar, you have to tax something that produces a dollar. So very simply, mandates and regulations are about making people do things they wouldn't do by themselves, and paying for it with things they would do by themselves. You can't grow an economy that way, because economies grow when consumers and purchasers reward people for making good investment choices. A mandate is an explicit recognition that it's not a good resource allocation."

Priest's Senate Bill 226 would make it more expensive for, say, a Montanan with solar panels on their roof to send excess energy out onto the electric grid, a process known as net metering.

"Overall, the intent with that bill is to ensure that ratepayers don't pay people who are half on, half off the grid like they are electricity companies," he says. "They're not. They're wholesale power producers to the extent they produce that power, and that's how they should be compensated, and that's just fair for the other ratepayers."

But the cost to ratepayers is negligible, and opponents of the bill say it threatens dozens of Montana companies that sell and install small renewable energy systems. Ross Keogh, a planner and analyst for Sagebrush Energy, a renewable energy development company, estimates that such systems generate less than 0.04 percent of total energy generation in Montana, and collectively cost ratepayers roughly $60,000 annually. The bill also requires owners of renewable energy systems to buy additional expensive equipment.

"The impact of SB 226 barely amounts to a rounding error on the balance sheets of NorthWestern Energy," Keogh says. "Given the costs of administering SB 226, the bill will probably end up costing consumers more, and could kill an important and growing industry in Montana."

Adds Hedges: "It's a small-jobs killing bill. They're not interested in small businesses, and that bill epitomizes the fact that they're not interested in small businesses."

SB 226 passed its second reading last week by a vote of 27-22.

In addition to SB 226, Priest seeks to limit the Public Service Commission's (PSC) ability to implement inverted block rates for electric services. The current rate structure allows consumers who use less energy to be charged a lower rate, which encourages energy efficiency.

"The way the PSC was using inverted block rates was to arbitrarily...limit somebody's energy consumption," Priest says. "That's not conservation. That's called rationing. When the ratemaking choices have no connection to cost, that's called rationing. When it's connected to incremental cost it's called conservation, and I support that."

Hedges says Priest's radical ideology is trumping common sense.

"It's shocking, because energy efficiency is bad? How on earth do you justify that? It saves people money," she says.

•••

Priest's anti-government proposals extend to private property rights and, specifically, takings. Any day he's expected to introduce the Montana Property Fairness Act. It would require the government to pay a landowner any time the state diminishes the value of property by any amount—by rejecting a development, like a subdivision, for example.

click to enlarge Republicans seek to tweak the state constitution’s guarantee of the right to a “clean and healthful environment,” preferring a “clean, healthful and economically productive environment.” - PHOTO BY CHAD HARDER
  • Photo by Chad Harder
  • Republicans seek to tweak the state constitution’s guarantee of the right to a “clean and healthful environment,” preferring a “clean, healthful and economically productive environment.”

"If you're going to suggest that something is a public good then the public ought to pay for it," Priest says. "It's not reasonable to expect a small group of people—property holders or personal property holders—to bear those costs of a public good."

In 2004, 61 percent of Oregon voters enacted a similar law, Measure 37. It proved disastrous. By the end of 2007 the state had received 6,857 claims requesting $19.8 billion in compensation. That year 62 percent of Oregon voters overturned many of Measure 37's provisions.

"If they don't take somebody's property it won't cost them anything," Priest says of the potential cost of his proposal, which he says isn't modeled after Oregon's.

Hedges calls the idea "outrageous," "absurd" and "a lousy idea."

"Did you move into a house thinking what was around you would continue to be what's around you, or did you think someone was going to move in a pig farm?" she says. "That can happen under this, because government can't prohibit somebody from moving in a pig farm next to their house. They can't prohibit people from doing whatever they want.

"Oregon voters," she adds, "thought the rhetoric sounded good: 'Government shouldn't interfere with the use of your property.' And then they learned what the reality was, and they went right back and they repealed it."

There are more bills that threaten the environment. One would repeal the voter-approved initiative that requires a statewide vote on proposed nuclear power plants. Another would allow local governments to amend or dissolve conservation easements. Yet another would overturn the citizen initiative banning cyanide heap leach mining. They add up to perhaps the most significant threat ever posed to Montana's environmental protections. But time is short. Only a week remains before the session's midpoint, Feb. 24, the day general bills swap from the chamber of origin to the other.

As the clock winds down, conservationists feel mixed emotions. Hedges, steadied by the perspective gleaned through working nine legislative sessions, is already looking to 2013 and beyond.

"The pendulum swings," Hedges says. "It does. And going too far in any direction is going to be corrected down the road. When you make radical changes it's not sustaining. It gets tempered over time...This is a little tiny blip on the overall political landscape.

"We'll be here longer than them," she adds. "We're going to outlive the bastards."

But for others it's more difficult to look past the immediate undercutting of safeguards that keep Montana "clean and healthful," and the crippling of the state's burgeoning renewable energy industry.

"This is where we're building jobs in Montana," MCV's Cobler says. "And we're doing it without damaging our natural resources. It's like killing the goose that lays the golden egg...It seems like the Legislature, or some actors within the Legislature, are not just trying to chip away at the edges [of Montana's environmental protections], but they're going for very basic, foundational pieces that make Montana what it is."

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