A Montana judge has canceled the air quality permit for a natural gas power plant under construction along the Yellowstone River.
The 35-page ruling from Yellowstone County District Judge Michael Moses was a victory for environmentalists and landowners near the project along Thiel Road south of Laurel, who filed suit in October 2021.
Moses ruled that the Montana Department of Environmental Quality failed to take a “hard look” at the environmental impacts of the 175-megawatt plant on two fronts: greenhouse gas emissions and lighting, reports KTVQ.com.
Judge Moses faulted the DEQ for not conducting an analysis of greenhouse gases that contribute to climate change, which is a violation of the Montana Environmental Protection Act.
The ruling noted that Montana officials had failed to adequately consider the 23 million tons of planet-warming greenhouse gases that the project would emit over several decades.
The judge also faulted officials for not considering how lights from the project could impact surrounding property owners, according to the Associated Press. It’s on the outskirts of the town of Laurel across the river from a residential neighborhood.
Laurel on undeveloped land east of the CHS refinery, 300 feet from the
Yellowstone River. Source – Montana Environmental Information Center
Montana’s argument on climate change
However, Montana officials had argued they had no authority to regulate greenhouse gas emissions. They also said that because climate change is a global phenomenon, state law prevented them from looking at its impacts.
But Moses said officials from the Montana Department of Environmental Quality had misinterpreted the law. He ordered them to conduct a further environmental review and said they must gauge the climate change impacts within Montana in relation to the project.
Major flooding on the Yellowstone River last year wiped out bridges and triggered widespread evacuations following extreme rains, which scientists say are becoming more frequent as the climate changes.
“The emissions and impacts of the (gas plant) are potentially significant,” Moses wrote. “Defendants do not dispute this.”
The second challenge to environmental analysis
NorthWestern, the state’s largest utility, announced in 2021 that it would seek to build the plant on the northern bank of the Yellowstone River. The plant would produce up to 175 megawatts of electricity to help meet the need for the rising demand for electrical power.
The plant quickly ran into opposition from area landowners, the Montana Environmental Information Center, and Sierra Club, who were concerned about dangers to air and water quality. They filed a lawsuit on October 27, 2021.
At that time, it was argued that the Montana Department of Environmental Quality issued a permit to NorthWestern without fully evaluating the plant’s potential to degrade air quality, contaminate the Yellowstone River and increase the greenhouse gas pollution that’s contributing to climate change.
Moses agreed with those arguments, revoking NorthWestern’s air quality permit and sending the state back to the drawing board to further analyze the project’s lighting- and greenhouse gas-related impacts.
So here we are today, and the Department of Environmental Quality was reviewing Moses’ order, and agency officials had no immediate comment, spokesperson Moira Davin said.
A NorthWestern Energy representative did not say if the ruling would halt construction.
“Our air permit was reviewed and approved by the DEQ using standards that have been in effect for many years,” Vice President John Hines said in a NorthWestern statement. “We will work with the DEQ to determine the path forward.”
Legislation to stop challenges
The ruling comes as the Montana Legislature weighs bills that would make it more difficult for organizations and individuals to sue state agencies over environmental decisions.
Two bills that passed in the Montana Senate this week could make it more difficult for groups that want to sue the state, according to Montana Public Radio. Both bills will next be heard in the House of Representatives.
The first bill, brought by Republican Senator Mark Noland of Bigfork, would require groups challenging state environmental decisions to pay up in order to take the government to court.
The second bill from Republican Senator Greg Hertz of Polson would tax nonprofit funds spent on litigation challenging government action. Hertz said this is needed because nonprofits use tax exempt dollars to bring lawsuits the state must spend taxpayer dollars to defend.
