Great Falls Tribune

April 17, 2009

Governor tames legislation on energy projects

By JOHN S. ADAMS Tribune Capitol Bureau

HELENA — Gov. Brian Schweitzer sent one of the session's most controversial environmental bills back to the Legislature Thursday after adding more than three dozen amendments.

House Bill 483, sponsored by Rep. Llew Jones, R-Conrad, seeks to create new administrative procedures for the public and industry to challenge permitting decisions for major energy-development projects.

Jones said he worked with the governor's office on the changes to the bill, which he said is now "destined to pass."

"Between when we started and when we got here, there were some things we discovered we needed to reword and address," Jones said.

The original measure drew considerable criticism throughout the session from environmentalists and property-rights advocates who said the bill would severely limit the public's ability to appeal permits for major energy projects.

Provisions in the original bill would have required a permit challenger to post a bond equal to the costs of delay to the project developer. It also would have let developers choose whether the appeal is heard by a District Court or the state Board of Environmental Review. Additionally, the bill would have limited the issues that could be raised during an appeal hearing, as well as the timeframe for its conclusion.

Critics of the original measure said it contained mechanisms that undermine the public's ability to participate in the decisions that affect their property and health.

The governor's amendatory veto adds to the list of issues that can be raised in a challenge and broadens the appeal timeframes to make them more workable, Schweitzer said.

The amended bill eased many concerns of the measure's most ardent critics.

"The governor clearly spent a lot of time and put a lot of thought into creating a bill that works for the public and for his board (the Board of Environmental Review)," said Anne Hedges of the Montana Environmental Information Center, an environmental group. "By and large, this is a very technical and well-established area of the law. (The original bill) overturns long-held legal principles. The governor's amendments try to return some balance to those changes."

Schweitzer said his amendments represents a good middle ground.

"It still allows the public's right to comment. It still has a time frame for people to comment," Schweitzer said. "It also gives some certainty how long this process will take, and it allows both sides to challenge the outcome."

Jones said the amended version cleared up the language but still achieves the same goals as the original bill.

"It only ever required people that were deleterious to bond, but it was written with a double negative in there so people kept writing up, 'well this bill makes everyone bond.' It never said that, it always said you had to be deleterious to be required to post a bond. So we just changed double negatives to a positive," Jones said. "The purpose of the bill was never to prevent appeals or litigation. The purpose of the bill was to allow legitimate people to appeal or litigate, but if you attempted to game the process and be deleterious to create death of projects through extensive delays, the bill was aimed at preventing the gaming of the process to delay."

Schweitzer said he worked with Jones on the bill even as lawmakers in the House and Senate debated the original version in committees and on the floor.

"Llew Jones was attempting to create legislation that would make a fair process — a fair process for the public, a fair process for the company — and I support him in that process," Schweitzer said.

Hedges said that while the changes improve the measure, she still disputes the need for such a bill, adding that claims of deleterious litigation are overblown.

"We don't believe that the few times the public has appealed a permit in order to protect their property and health have been unfair to the industry," Hedges said. "If the governor is determined to agree that this process needs to be changed, he's done a pretty good job of making sure those changes were done in a more fair way for all sides involved."