Change is Coming for Montana’s Environmental Policy Act

Just how much change is up to the Legislature, which has a handful of bills to consider; most seeking additional sideboards on the procedural statute

By Micah Drew for the Daily Montanan

Attendees show their support during a Climate Advocacy rally at the Montana Capitol on January 24, 2025. (Micah Drew/ Daily Montanan)

Republicans want to put sideboards on environmental review in Montana, but Democrats wish to strengthen the process in the wake of the constitutional climate change lawsuit Held vs. Montana.

In that case, a district court ruled, and the state Supreme Court affirmed last year, that the Montana Environmental Policy Act (MEPA) is essential to upholding Montanans’ constitutional right to a “clean and healthful environment.” The court also said limitations on MEPA — such as prohibiting analysis of greenhouse gas emissions — fly in the face of the constitution.

MEPA is a section of Montana law dating back more than 50 years that requires environmental reviews of government projects that have the potential to impact the quality of the human environment.

The statute created a process intended to anticipate and prevent unintended consequences from actions such as permitting energy projects, approving developments and infrastructure, and making land and wildlife management decisions.

With the 69th Montana Legislature underway, a handful of bills aimed at clarifying some of the statute’s ambiguity are wending through the halls of the state Capitol. Republicans, who vocally opposed the Held decision, are looking to put limitations on the MEPA review process and clarify its use as a procedural, not regulatory, statute. Democrats on the other hand, seek to align MEPA with the Held decision and are considering strengthening the environmental review requirements.

Life After Held

In a District Court ruling handed down in late 2023, Lewis and Clark District Court Judge Kathy Seeley concluded that Montana’s right to a “clean and healthful environment,” enshrined in the state’s constitution, includes the right to a “stable climate system.” The judge also stated that legislators can’t tell permitting agencies to preclude analysis of greenhouse gas emissions during environmental review — striking down a 2023 law doing so.

But several state agencies, the defendants in a lawsuit brought by 16 youth plaintiffs, repeatedly argued before the district court, and ultimately the Montana Supreme Court, that MEPA comprises “solely of procedural statutes,” according to the opening brief filed before the state Supreme Court on appeal last year.

As such, MEPA “does not allow agencies to ‘deny, withhold, or modify’ permits,” state lawyers argued.

However, the Montana Supreme Court in December 2024 wrote that while MEPA may be procedural, that word “of course, does not mean unimportant.”

“The Montana Constitution guarantees that certain environmental harms shall be prevented, and prevention depends on forethought,” the Court wrote.

The Supreme Court’s affirmation of the Held decision wasn’t the last word on MEPA.

In response to the ruling, Senate President Matt Regier, R-Kalispell, and House Speaker Brandon Ler, R-Savage, issued a joint statement decrying the overreach of the court system, and vowed to introduce a group of bills aimed at addressing the Held decision.

As the Legislature enters its second month, several GOP-led bills to revise MEPA have gone through committee hearings, and one Democrat-introduced bill drew dozens of proponents, including Held plaintiffs. No action has been taken on any of the MEPA-related bills.

The Proposed Changes

House Bill 229

Freshman legislator Representative Debo Powers, a Democrat from just outside Glacier National Park, brought House Bill 229 before the House Natural Resources Committee on January 24, just hours after a climate advocacy rally took place in the Capitol rotunda.

Powers characterized her bill as a housekeeping bill intended to align MEPA with the Held ruling.

“But in addition to simply housekeeping, this bill helps to restore to vital roles that MEPA is intended to fulfill … by once again allowing state agencies to consider climate impacts and environmental reviews.”

Powers listed off several of the major points from the Held decision — that climate change is real, Montana is warming faster than the global average, carbon dioxide from human activities is a driving force behind climate change and many of those activities could not occur without state permits — before turning it over to a lengthy list of proponents.

Proponents included representatives from the Montana American Indian Caucus and several of Montana’s recognized tribes, Climate Smart Missoula, Northern Plains Resource Council, and Montana Conservation Voters, along with other nonprofits and many individuals.

Opponents included the Montana Chamber of Commerce, Montana Petroleum Association, Treasure State Resources and the Coalition for Safety and Justice, who said the changes could limit the state’s energy potential, offered little guidance for state agencies moving forward, and that better bills were forthcoming

House Bill 285

Two bills received hearings before the House Natural Resources Committee on January 29, including House Bill 285, introduced by Speaker of the House Ler.

The bill, according to Ler, makes MEPA “more efficient and better suited for Montanans,” and reasserts that the Legislature is in control of defining the MEPA process, instead of the courts.

Darryl James, a consultant who was part of a DEQ-convened MEPA workgroup that made several policy recommendations, including what became HB 285, told the committee that in recent years, district courts had interpreted MEPA to hold a more substantive regulatory role than was intended, even using it as an “anti-development weapon.”

Paraphrasing part of the Held decision, James said that the court indicated that DEQ could “conform their decision making to the best science,” and obtain the necessary information to deny a permit.

“That’s in clear contradiction to the letter of the law,” James said. “If they’re saying that MEPA alone could be used to deny a permit, then that’s clearly outside the bounds of MEPA. It’s stretching MEPA to the extent that it turns it into a regulatory process.”

Many of the same industry groups spoke in support of HB 285, but opponents spoke for more than 30 minutes about the harm these amendments to MEPA would have.

“When there’s this debate over procedural versus substantive, I think it misses the point that it’s an important process that the public needs to have,” said Derf Johnson, a member of the workgroup who represents the Montana Environmental Information Center. “It is not a paper exercise, and it’s not meant to just be shelf art. It is a process that engages the public, informs the public, and helps to guide decision making.”

Johnson pointed out a series of changes that weaken the environmental review process including: Changing language that environmental assessments are “fully considered” to “made available;” amending “promote efforts” to prevent, mitigate, or eliminate damage to simply “disclose” them; striking mentions of “decision making” in exchange for assessment; and repealing the entire policy goals of MEPA.

“We’re going to acknowledge that there’s these problems, and that’s where the analysis should end,” he said, summarizing the changes. “That, to me, is problematic.”

Other opponents brought up the likelihood of additional legal disputes and a clear threat to increasing environmental degradation.

James, the consultant, reminded legislators on the committee that MEPA is simply a tool.

“It’s your tool. The question is, what role do you want MEPA to play?” James asked the committee. “It’s up to you to decide whether you want to leave loose interpretation of the courts or if you want to provide more clarity and direction on how to use MEPA.”

House Bill 270

House Bill 270, introduced by Representative Katie Zolnikov, R-Billings, was also heard in committee with HB 285.

HB 270 aims to clarify remedies for MEPA non-compliance, including that courts may not vacate a permit without finding that doing so will offer relief to the requesting party, the relief is in the public interest and narrowly tailored, and after examining impacts to the local economy.

Jeremiah Langston of Montana Department of Environmental Quality (DEQ) said the changes provide plain language for courts to follow when legal challenges arise over permitting actions.

Many industry groups, and the Montana Environmental Information Center, agreed, saying the new language adds clarity and predictability to the MEPA statute.

“We’re tired of being the ping pong ball in the fight over what is right and what is wrong for energy in Montana. All we want to do is ensure that we can go to work, and we know that when we’re going to build a plant, we’re going to build a transmission line, that we have the ability to do that,“ said Jay Reardon, representing Montana’s building and construction trades unions. “We can’t continue to put our members where they don’t know whether (they’re) going to have a job today or not.”

There were no opponents to HB 270.

Senate Bill 221

The last of the major MEPA bills, and the first originating in the Senate, further seeks to remove ambiguity from the statute by adding a new section clarifying when agencies must consider greenhouse gas emissions in an environmental review.

Brought by Representative Wylie Galt, R-Martinsdale, House Bill 221 “puts the Legislature in the driver’s seat” with MEPA. The bill defines fossil fuel projects and greenhouse gas emissions in the statute, and directs DEQ to develop guidance for when and how greenhouse gas emission assessments shall be conducted.

“SB 221 ensures that Montana’s environmental assessments for fossil fuel activities are clear, efficient, and grounded in common sense,” Galt said in a prepared statement. “This bill keeps environmental stewardship grounded in Montana values while making sure we aren’t piling on unnecessary regulations that hurt our economy and way of life.”

More than 30 individuals spoke during the February 3 hearing for the latest MEPA bill, split largely down the same lines as previous testimony with environmental groups opposing it and industry groups and agency officials — including DEQ Director Sonja Nowakowski — supporting the legislation.

Darryl James, the consultant who served on the MEPA workgroup, told the committee he thought HB 221 was a “Goldilocks bill” — not too much, and not too little, compared to other pieces of MEPA-related legislation introduced this session — but several opponents said there wasn’t enough stakeholder input to be a true middle-of-the-road solution.

Opponents echoed previous testimony that the law would limit the scope of environmental reviews, opening the door for environmental harm.

Another bill, House Bill 346, also targets MEPA by exempting Department of Commerce grants and loans from environmental reviews. HB 346 was heard in committee February 3.