The Law of the Land 

Monkeying with the granddaddy of environmental laws

Montana legislators like to talk about monkeys: Every session has its “800-pound gorilla” sitting in the corner, an issue so big and scary no one wants to look at it. In 1997, there was the monstrous utility deregulation bill. Last winter, there were tax reform proposals and the question of what to do about the state’s mental health program.

But one gorilla that’s been hanging around the capitol complex for years just arrived at the door of the Environmental Quality Council, and officials say they’re ready to tackle the beast. So for the next year—if not longer—the 17-member bipartisan council (consisting of 12 legislators, four members of the public and a governor’s representative) will take on a review of the Montana Environmental Policy Act, or MEPA for short.

MEPA is the granddaddy of environmental laws—it’s modeled after the National Environmental Policy Act (NEPA) and spells out how conservation laws are to be enforced, mandating that state agencies consider all alternatives when a project comes across their desks, and that the public get the chance to participate in that process through the drafting of environmental impact statements and environmental assessments.

With the law nearly 30 years old now, state legislators decided it was time for a facelift and voted to set the council to the task. Their goals: “evaluating and improving the MEPA process; ensuring that the MEPA process results in state agencies making timely, efficient, informed, cost-effective, legally defensible and ultimately better decisions; and ensuring that the MEPA process results in government accountability and that Montanans are informed of and participate in state agency decisions.”

A mouthful, to be sure. But the council’s administrative aid, Todd Evert, says that mandate includes an additional issue, one that could revolutionize environmental politics in Montana: Should MEPA be interpreted as a substantive or procedural law? In plain English, should companies be granted permits once they’ve jumped through all the hoops set up by MEPA, or is there something more important behind all the legalese, something along the lines of the state Constitution’s guarantee of a clean and healthful environment that may not always be met by dotting the I’s and crossing the T’s of a MEPA permit?

The answer to such an esoteric question, says environmentalists, couldn’t be more vital on the ground. “A good example is the transportation system,” says Anne Hedges of the Montana Environmental Information Center. “They’re building a huge freeway in the Bitterroot that will have significant effects on the local economy, the environment and growth patterns. Under a substantive reading of the law, they’d have to do something to mitigate the harm—either build a smaller freeway or redesign it. Instead, they’re just going out and saying, we did MEPA, that’s all we have to do. But the Constitution has to mean something, and if there’s no substance behind the law, the Constitution is meaningless.”

In fact, Evert says, the state’s courts have given varying readings to the law. And in addition, state agencies don’t always come up with answers to the liking of environmentalists. Tom France, an attorney with the National Wildlife Federation in Missoula for the last 18 years, says a more substantive reading of the law would benefit private companies, which currently have to pay for the state to examine a wide range of sometimes unrealistic alternatives in order to get a permit.

“We need to respect the fact that private investors rightfully expect a return on their investment and look at a range of alternatives that balance economic and environmental concerns,” says France, who himself served on the council for six years. “That said, I think it would mean looking at the environment in terms of more benign ways of doing things.”

On the other end of the spectrum, one state official’s critique of MEPA has turned into a miniature feud between the Department of Natural Resources and Conservation, and members of its oversight body, the Board of Land Commissioners. Encouraged by Evert to submit comments on MEPA, DNRC director Bud Clinch fired off a five-page letter listing his grievances and suggesting changes to MEPA. Essentially, he says, the law encourages public participation to such an extent that the permitting process is bogged down, expensive and litigious. “It would simplify statute,” he writes, “to have MEPA be clearly procedural, and thereby serve to ensure a systematic decision-making process has been utilized by each agency.”

Two of Clinch’s five bosses on the Land Board, Attorney General Joe Mazurek and Secretary of State Mike Cooney (both of whom are running for governor), responded by distancing themselves from Clinch’s critique. Mazurek objected that the letter was “based purely on anecdote spiced with a good bit of rhetoric.” Cooney criticized that “[t]he problems Mr. Clinch perceives … with MEPA seem to focus on his opinion that MEPA is making government spend too much time following MEPA and keeping Montanans informed of the proposed actions of the state.”

Clinch did not return repeated phone calls.

Meanwhile, Evert says the council has been directed to complete its report and make recommendations to the Legislature for changes to the law by next year. They could also advise state agencies to alter the way they interpret the law. Or, he adds, the council could ask for more time to complete the task. “It’s a gargantuan project,” he says. “There’s lots of issues, and the Legislature may well determine we need more time.”

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