Decision may help a granddaddy keep its teeth

 

Note: in the print edition of this issue, this article appears as a sidebar to another news article,"Court reads the environment its rights."

The October supreme court ruling may help clarify the granddaddy of Montana's environmental laws, the Montana Environmental Policy Act, or MEPA, which dates back to 1971. Modeled after the National Environmental Policy Act (NEPA), it mandates that state agencies consider a range of alternatives when a project comes across their desks, and that the public gets the chance to participate in that process.

But interpreting the law has been tricky, and during their last session, state legislators decided it needed to be pinned down. The job goes to the 17-member Environmental Quality Council, comprised of 12 legislators, four members of the public and a governor's representative. Central to the project, according to the council's administrative aide, Todd Everts, is resolving the question of whether MEPA is a substantive or procedural law. The question may seem esoteric, but pinning it down could revolutionize environmental politics in Montana.

In plain English, if the law is procedural, companies can be granted permits to cut timber or mine gold with no real obligation to protect the environment, as long as they've jumped through all the hoops set up by MEPA. If the law is substantive, it's the outcome, not just the process, that's important.

An example is the planned expansion of a two-lane highway through the Bitterroot Valley south of Missoula. According to Anne Hedges of the Montana Environmental Information Center, the road "will have significant effects on the local economy, the environment and growth patterns. Under a substantive reading of the law, they'd have to do something to mitigate the harm - either build a smaller freeway or redesign it. Instead, (under a procedural reading) they're just going out and saying, we did MEPA, that's all we have to do."

As it is, says attorney Tom France, who served six years on the council, most environmental studies have a radically destructive alternative and an unrealistically benign alternative, "so the agency can come up with a compromise between the environmental straw man and rampant destruction and appear measured."

France says a substantive MEPA is better for everyone. "We need to respect the fact that private investors rightfully expect a return on their investment and to look at a range of alternatives that balance economic and environmental concerns," he says. "It's a more realistic range and a narrower range. That said, I think it would mean looking at the environment in terms of more benign ways of doing things."

Bud Clinch, director of the state's Department of Natural Resources and Conservation, disagrees. In a letter to the committee reworking the law, he argued that a substantive MEPA would encourage public participation to such an extent that the permit process would become even more bogged down, expensive and litigious. "It would simplify the statute to have MEPA clearly procedural," he said.

The answers will be hard won, but the language of the recent ruling by the Montana Supreme Court suggests the constitution intended a substantive, enforceable reading of MEPA. Says Justice Terry Trieweiler, writing for the court: "Our constitution does not require that dead fish float on the surface of our state's rivers and streams before its farsighted environmental protections can be invoked."

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