Saving Energy Projects from Being Litigated to Death

By Beacon Staff

“The U.S. faces potentially crippling electricity brownouts and blackouts beginning in the summer of 2009, which may cost tens of billions of dollars and threaten lives. Unless major investments are made immediately in electricity generation (power plants) and transmission (power lines), the threat of service interruptions will increase.”

That’s a quote from a report by the NextGen Energy Council. It shows why we must streamline the permitting process for energy projects in Montana. This nation is facing an energy crisis.

We can improve our energy situation without damaging Montana’s environment by reforming the process by which energy development projects are approved.

That process starts off great. The Department of Environmental Quality (DEQ) takes extensive public comment and allows citizens to object long before a permit is ever issued. The DEQ sets a very high standard for obtaining a “Yes” permit.

The problem is, the “Yes” permit is only the beginning. Upon issuance of the permit, special interest groups then often use the appeals process and the court system to stall projects for political reasons. They use the appeals and the courts to “run out the clock” quite effectively.

Fifteen challenges were brought against the last six major energy projects in Montana. Consider the last three:

1. Roundup Power – Extremists appealed to the Board of Environmental Review three times. Each time the board ruled against them, they appealed that to the district court. Each time the district court ruled against them, they appealed that to the Supreme Court.

2. Thompson River Co-Gen (proposed Thompson Falls plant) – Extremists once again appealed to the Board of Environmental Review. When part of the ruling didn’t go their way, they appealed to the district court. When that didn’t go their way, they appealed to the Supreme Court, which is still pending. The project cannot move forward until it’s resolved.

3. Southern Montana Electric (proposed Great Falls plant) – This project was appealed to the Board of Environmental Review. That ruling was appealed to district court, which resulted in the Department of Environmental Quality doing a new BACT determination. That BACT determination was – again – appealed to the Board of Environmental Review.

Some lobbyists argue that “only a small number of DEQ’s overall total permits are appealed. The only reason they can make that claim is that DEQ permits everything from cement plants to elevators. In fact, almost every major power plant or transmission line proposed in Montana is litigated to death.

Death by litigation is a premeditated strategy. “Our goal is to oppose these [baseload coal] projects at each and every stage, from zoning and air and water permits,to their mining permits and new coal railroads,” said Bruce Nilles, a Sierra Club attorney. They spent about $1 million on such efforts in 2007 and they hope to ratchet that figure up to $10 million this year.

The Montana Environmental Information Council (MEIC) is in the thick of this cartel. Prominently displayed on their Web site is the following: “Coal makes us sick, oil makes us sick. It’s global warming. It’s ruining our country. It’s ruining the world. We’ve got to stop using fossil fuel.” – Sen. Harry Reid, D-Nev.

The bipartisan bills that your legislators are working on preserve the appeals process for ordinary citizens. Individuals can still take advantage of the public comment process before any project is ever permitted. The DEQ will still have its very high environmental standards. Even after the permit is issued, individuals can appeal based on absolutely any issue raised in the public comment and will not have to post a bond unless it is determined that they are harassing or being dilatory. And if they can’t afford a bond, they will always be able to sue or appeal without posting any bond at all.

Legislators, members of the executive branch, and labor union supporters from both sides of the aisle want to prevent “death by litigation.” When people can appeal but partisan activist operatives can’t cheat, then our permitting process is truly accountable to the will of the people. Montana needs jobs, tax base, energy, economic development, and school funding. We can have a vision for responsible energy development if we are allowed to. As it is, our future is being held hostage by a small group of special interest lobbyists. That is what HB 483 and HB 529 is all about.

Llew Jones is a Republican state representative from Conrad.