Conference on Environmental Assessments in Federations

A Montana PerspectiveSeptember 14, 2009

Tom Livers, Deputy Director Montana Department of Environmental Quality

Projects for Illustration

• Montana-Alberta Tie Line• Keystone Pipeline• Powder River Basin Coal Bed Methane

Montana Constitution – 1972Article II – Declaration of Rights

Section 3. Inalienable rights.

All persons are born free and have certain inalienable rights. They include the right to a clean and healthful environment… In enjoying these rights, all persons recognize corresponding responsibilities.

Montana Environmental Assessment Authority

Major Facility Siting ActMontana Environmental Policy Act

Major Facility Siting Act

Compliance with state lawProtect the environmentSocioeconomic impactsCitizen participationCoordination and efficiency for regulated facilities

Findings Necessary for Certificate

NeedNature of probable environmental impactMinimal adverse environmental impactAll reasonable, cost effective mitigation of

significant impactsNo violation of law in unmitigated impacts

Montana Environmental Policy Act (MEPA)

Patterned after National Environmental Policy Act (NEPA)

NEPA: “Each person should enjoy a healthful environment.”

MEPA: “Each person is entitled to a healthful environment.”

Coordination of NEPA and MEPA

NEPA – Federal actionsMEPA – State actionsJoint jurisdiction

• State project federally funded• State actions on federal lands• Interstate or international

Implementation

Federal and state agencies are required to cooperate

May adopt the other’s environmental reviewMay prepare a single environmental review

Montana – Alberta Tie Line

Montana – Alberta Tie Line

230 kV transmission line between Great Falls, Montana and Lethridge, Alberta2-way energy flowIncreased reliabilityWind energy development

Environmental Review

International borderInteragency cooperationDisagreed on need for EISLandowner litigationLate decision delayed approval

Keystone Gulf Expansion Project

Keystone Gulf Expansion Project

Hardisty, Alberta to US Gulf Coast3200 km oil pipelineInternational boundaryRejected state request for co-lead

Powder River Coal Bed Methane

Powder River Coal Bed Methane

Memorandum of UnderstandingU.S. Bureau of Land ManagementMontana Department of Environmental QualityMontana Board of Oil and Gas Conservation

(BOGC)Agency responsibilities for contact oversight and

decision resolution

Cultural and Priority Differences

Simultaneous preparation of separate EISs Montana DEQ: water quality and beneficial use protectionWyoming DEQ and Montana BOGC: timely permitting

MOU with EPAEPA aware of cultural differencesSpecified integration of NEPA throughoutMontana BOGC objects to “EPA

Stubbornness”

Conflict over Environmental Impact Statement:EPA review of draft

Wyoming EIS “unacceptable”Montana EIS “wanting”

Wyoming objects to EPA criticismBureau of Land Management proposes fix for

EPA criticism

EISs Ultimately Issued

Challenged by environmental groupsWyoming Bureau of Land Management direct to redo EIS to address phased development

Water Quality Standards

Montana numeric standardsApproved by EPA, challenged by Wyoming

and industryNegotiations with Northern Cheyenne

Sunshine LawsMontana Open Meeting Law

All meetings of public…agencies…must be open to the public

ExceptionsIndividual privacyCertain litigation strategyCertain Supreme Court deliberations

Cancelled meetings and conference calls

Future Issues: Electrical Transmission Lines

Western grid congestedWaxman-Markey Bill – Federal Energy

Regulatory Commission would control siting in western states

Energy corridors~FERC: overrule states on “national interest”

projects~4th Circuit: states may reject projects on

reasonable grounds

Federal and State Joint Review:Strengths

Share workloadShare dataAnticipate comments, concerns

Multiple perspectivesResolve differencesSounding board

Technical expertiseOn-the-ground knowledge, experience

Federal and State Joint Reviews:Challenges

Communication more complexDelaysState statutory constraints

http://deq.mt.gov/ -- Montana DEQ home page tlivers@mt.gov -- my email http://deq.mt.gov/MFS/index.asp -- Montana Facility Siting Program http://leg.mt.gov/content/publications/Environmental/2006mepaguide.pdf -- Guide to MEPA