Republican lawmakers have rolled out another bill making it more expensive for the public to challenge government decisions.
Sen. Mark Noland, a Republican from Big Fork, told a Senate Business Committee this week that his Senate Bill 557 “would help industries that have been stalled or stopped by some actions that could be lawsuits, could be just challenges in the courts.”
The bill passed out of the Senate Business Committee on Thursday 6-4.
Opponents of the bill said it created a “pay to play system” that would keep many Montanans from challenging environmental and wildlife decisions by the state departments of Fish, Wildlife and Parks, Environmental Quality and Natural Resources.
Noland described the bill as undoing the consequences of what’s known the “Lucky Minerals Decision.” Lucky Minerals is a Canadian company that had planned for a gold mine 15 miles from the Gardiner entrance to Yellowstone National Park.
People are also reading…
Lucky was one of two business eyeing gold mines in the area. Prohibiting the gold mining so close to Yellowstone was a bipartisan cause. In 2018 then Interior Secretary Ryan Zinke signed a 20-year ban on mining in the Yellowstone-adjacent area. Gov. Greg Gianforte, then a U.S. representative wrote a bill to protect the area from mining.
However, Lucky Minerals indicated in 2020 that it hadn't given up on mining gold outside Yellowstone.
Lucky’s first step was to cut some roads and drill for core samples. The mining company’s exploration plans received the backing of Montana’s Department of Environmental Quality, a permitting agency that two courts later concluded downplayed damage the mine presented to water and wildlife.
Ignoring the mine’s potential damage and not calling for a more thorough environmental review, meant DEQ was out of step with the Montana Environmental Policy Act. Known as MEPA, the policy lays out steps for ensuring state agencies uphold Montanans right to a clean and healthful environment.
What Republicans had hoped that Lucky’s gold exploration would keep rolling despite a public challenge that proved DEQ’s work insufficient. The 2011 Legislature had amended MEPA to make it so.
Then-Attorney General Tim Fox argued that the Montana Environmental Policy Act couldn't stop Lucky's mine activities because the law wasn't substantive, an argument rejected by a District Court and Montana Supreme Court. That argument was that the mine work should continue, while DEQ did a more thorough review of the project.
The Montana Supreme Court ruled the 2011 amendment unconstitutional because if a project couldn’t be stopped when DEQ got its environmental work wrong, then the public’s right to a clean and healthful environment couldn’t be upheld.
The court said allowing the project to proceed while DEQ corrected its environmental work was “analogous to a mandatory aircraft inspection after takeoff.”
Noland’s bill would make it more expensive to use the Montana Environmental Policy Act for redress. The U.S. Constitution forbids the creation of laws that violate the right to petition the government for redress of grievances. More than one bill proposed by Republican legislators and endorsed by the fossil fuel industry makes it more expensive to challenge government actions.
Senate Bill 557 would require anyone challenging a project to get a court injunction to stop it. Several legal costs would be transferred to the challenger, who would also be required to post a bond covering the lost wages and revenues of the project developer.
Only two people showed up to testify against the bill. The 8 a.m. hearing had been scheduled the night before and the actual text of SB 557 wasn’t readily available.
“This is intended to chill people from using this law. MEPA implements our right to a clean and healthful environment, implements our right to participate. And what they're saying is if agencies don't follow the law, then there's nothing you can do about it because you can't afford to go to court,” said Anne Hedges, of the Montana Environmental Information Center.
“None of those organizations, those individuals that over the last 40 years have challenged agency actions under MEPA would be able to go to court. So, you're making MEPA voluntary. This takes the guts, the heart and the soul out of the law and puts all of that in those people with all the power. And pay-to-play system for public participation seems really misplaced.”
