Article published Apr 27, 2008

GOP lawmaker proposes eliminating review board

By JOHN S. ADAMS Tribune Capitol Bureau

HELENA — A Republican legislator from Otter thinks the Montana Board of Environmental Review ought to be restricted in its rulemaking power or eliminated altogether.

And State Sen. Keith Bales already has started to take steps to try to make that happen in 2009.

Bales submitted two bill draft requests to the state Legislative Services Division. One bill would revise laws governing the Board of Environmental Review, and the other would eliminate the Board of Environmental Review.

Bales referred to both bills as "shells" because they are in the earliest stages of drafting, but the draft requests have nonetheless caught the attention of some environmentalists and policy makers.

"This is just another one of those shots that just tries to take away a rulemaking authority from an appointed board," BER chairman Joe Russell said on Friday. "But, you know, you can't ignore these types of activities."

Bales, a pro-industry conservative legislator from southeastern Montana, said part of his disapproval of the BER is exemplified by the board's handling of appeals on the proposed coal-fired Highwood Generating Station's air-quality permit.

The BER recently became the first regulatory body in the nation to call for separate measurement and emissions controls for tiny-particle pollution known as PM 2.5, which is emitted at industrial facilities such as the coal-fired power plant proposed east of Great Falls.

BER's decision requires the Department of Environmental Quality and Southern Montana Electric Generation & Transmission Cooperative, the plant's developer, to go back to the drawing board for a portion of the permit affecting fine particulate matter. The rest of the air-quality permit remains in place.

"I think there needs to be some additional parameters placed upon the action (the BER) can and should take," Bales said. "In that case, a permit was issued under existing rules and then the board, in their great and infinite wisdom, decided that that was not good enough, and so they needed to go back and do new rulemaking on the PM 2.5. In essence, they changed the rules after the fact.

"I think that needs to be looked at because I think that has an extremely dampening effect on industries looking to locate their businesses here in Montana," he added.

The governor-appointed BER has rulemaking authority within the Department of Environmental Quality. It also serves a quasi-judicial role in appeals of environmental permits.

Bales said one possible alternative to having the BER make rules and review alleged violations and permit appeals would be to turn the rulemaking process over to the DEQ or the state Legislature and turn the legal challenges over to state district courts.

BER board member Robin Shropshire said that one of the board's strengths is its members' expertise and the amount of time they devote to studying complex technical issues.

"I think if you were to look at the résumés of each of our board members, there is a lot of expertise in environmental quality, legal expertise and policy-making expertise," Shropshire said. "One of the things that people also don't really realize is the amount of time and effort and the hundreds of hours spent in individual cases, listening to testimony and poring over thousands of pages of documents. I don't think the Legislature would necessarily have the time to spend on these complex issues."

Russell, a Flathead County health officer, was appointed by Republican Gov. Marc Racicot and has served on the board under two Republican and one Democratic administrations. He said Bales' criticisms of the BER is misguided, adding that if Bales has his way, it could have longstanding negative impacts on the environmental review process and bog down the judicial system.

"It doesn't make a lot of sense to me when you think about the economics and efficiency of government," Russell said. "You know how busy the district courts are around Montana? That's crazy. We have a great administrative process for appeals in place. I'm sure judges around the state don't want to see every department violation going to district court."

Anne Hedges, an environmental lobbyist with the Montana Environmental Information Center, said Bales' proposal also ignores the fact the BER often rules against environmentalists. She said that while Bales' bills might gain traction among a certain segment of conservative legislators, she doesn't believe they will get very far in the legislative process.

"Keith Bales doesn't like anyone who disagrees with him so he wants to eliminate the opposition, that's not surprising," Hedges said. "He tried to stack the BER with industry hacks last year, so anything he does to try to support industry doesn't surprise me.

"I think the Legislature can see through that," Hedges added. "They did last year. There were two bills in to change the composition of the BER to be composed of industry representatives. This is supposed to be an unbiased quasi-judicial body."

Bales said he's not sure how far he'll take either bill, but added he will probably pursue legislation to revise or change the rules under which the BER operates.