HELENA – A Republican lawmaker from Otter says the Montana Board of Environmental Review is overstepping its bounds, and he is taking steps to either restrict the board’s rule-making power or eliminate the board altogether.
State Sen. Keith Bales has submitted two bill draft requests to the state Legislative Services Division. One would revise the laws that govern the Board of Environmental Review, and the other would dissolve the board.
Bales referred to both bills as “shells” because they’re in the earliest stages of drafting, but the draft requests have nonetheless caught the attention of some environmentalists and policy makers.
“This is just another one of those shots that just tries to take away a rule-making authority from an appointed board,” said Joe Russell, chairman of the Board of Environmental Review. “But, you know, you can’t ignore these types of activities.”
Bales, a pro-industry conservative legislator from southeastern Montana, said part of his disapproval of the review board was exemplified by its handling of appeals on the proposed coal-fired Highwood Generating Station’s air-quality permit.
A recent decision by the review board reportedly made it the first regulatory body in the country to call for separate measurement and emissions controls for tiny-particle pollution known as PM 2.5, which is emitted at industrial facilities such as the power plant proposed east of Great Falls.
The board’s decision requires the state Department of Environmental Quality and the plant’s developer, Southern Montana Electric Generation & Transmission, to go back to the drawing board for a portion of the permit affecting fine particulate matter. The rest of the air-quality permit remains in place.
“I think there needs to be some additional parameters placed upon the action (the board) can and should take,” Bales said. “In that case, a permit was issued under existing rules and then the board, in their great and infinite wisdom, decided that that was not good enough, and so they needed to go back and do new rule-making on the PM 2.5. In essence, they changed the rules after the fact.
“I think that needs to be looked at, because I think that has an extremely dampening effect on industries looking to locate their businesses here in Montana,” he said.
The governor-appointed Board of Environmental Review has rule-making authority within the Department of Environmental Quality and serves a quasi-judicial role in appeals of environmental permits.
Bales said one alternative to having the board make rules and review alleged violations and permit appeals would be to turn the rule-making process over to the DEQ or the state Legislature, and turn the legal challenges over to state district courts.
Environmental Review Board member Robin Shropshire said one of the board’s strengths is its members’ expertise and the amount of time they devote to studying complex technical issues.
“I think if you were to look at the résumés of each of our board members, there is a lot of expertise in environmental quality, legal expertise and policy-making expertise,” Shropshire said. “One of the things that people also don’t really realize is the amount of time and effort and the hundreds of hours spent in individual cases, listening to testimony and poring over thousands of pages of documents. I don’t think the Legislature would necessarily have the time to spend on these complex issues.”
Russell added that Bales’ proposals could have long-standing negative effects on the environmental review process and bog down the judicial system.
“It doesn’t make a lot of sense to me when you think about the economics and efficiency of government,” Russell said. “You know how busy the district courts are around Montana? That’s crazy. We have a great administrative process for appeals in place. I’m sure judges around the state don’t want to see every department violation going to district court.”
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