Current work in wildlife, rivers, public lands, and climate

Great Falls, MT – Groups filed suit in Montana District Court today challenging two recent laws passed by the 2023 Montana Legislature intended to weaken water and environmental protections from coal mining. The new laws, which purport to have gone into effect immediately, are likely to exceed Montana’s delegated authority under the Surface Mining Control and Reclamation Act (SMCRA), which requires state programs for coal to be at least as stringent as federal law.

While the legislature made the amendments immediately effective, federal law requires changes in a state’s coal regulatory program to be reviewed and approved by federal agencies before they are implemented. Conservation groups are seeking an immediate injunction to prevent the state from giving the new laws effect until they are properly reviewed by federal authorities with ample opportunity for public comment. The groups expect that when these laws are reviewed by federal authorities, they will be rejected for being less protective than federal law.

“It’s like the bad old days under the Anaconda Company. The Montana Legislature caved to coal industry lobbyists and effectively let them rewrite the law to weaken environmental protection and public involvement,” said Shiloh Hernandez, senior attorney for Earthjustice’s Northern Rockies Office. “Thankfully, federal law prevents this sort of brazen attack on our communities and environment. Once these laws are properly scrutinized, we expect them to be thrown into the dustbin.”

“Sloppy and reckless bills like these should not be allowed to trample our constitutional rights as Montanans,” said Richard Liebert, retired Army Lt. Colonel, cattle rancher and board president of Citizens for Clean Energy. “The First Amendment protects our right to petition the government for redress of grievances. These laws infringe that fundamental right and should not stand.”

In late April, the Montana Legislature passed two laws (HB 576 and SB 392) designed to impede the public’s ability to enforce the Montana Strip and Underground Mine Reclamation Act (MSUMRA). Governor Greg Gianforte signed the legislation in early May. HB 576 weakens environmental protections from coal mining by changing the definition of “material damage” to surface and groundwater. Under the new law, mining operations can violate water quality standards, polluting Montana waterways, as long as it is not “long term or permanent.” The change was drafted and pushed through the legislature by coal company lobbyists in a brazen attempt to exempt itself from enforcement of the law.

“Water is Montana’s most critical, essential natural resource, especially in the arid eastern part of the state,” stated Derf Johnson, deputy director of the Montana Environmental Information Center. “It’s incredibly alarming that the Montana Legislature would attempt to weaken water quality and protection laws in order to accommodate coal mining corporations. We’re going to do everything we can to make sure that doesn’t happen.”

HB 576 would also allow the Montana Department of Environmental Quality (DEQ) to approve coal mining operations before all relevant information on water resources is obtained, which is a requirement under SMCRA.

“For the Montana Legislature to pass and Governor Gianforte to sign these illegal laws is nothing short of corruption,” said Jeremy Nichols, climate and energy program director for WildEarth Guardians. “Fortunately, federal law doesn’t allow kickbacks to the coal industry and we aim to ensure the state of Montana is held accountable to putting people before corporate polluters.”

“Water is the lifeblood of Montana’s economy and way of life,” said Nathaniel Shoaff, senior attorney for Sierra Club. “The legislature’s race to the bottom is misguided and illegal. It may be good for coal executives, but it’s bad for every community relying on clean rivers and streams.”

The legislature also adopted an unlawful “loser-pays” provision (SB 392) that would allow fees and costs to be awarded to coal companies from members of the public who unsuccessfully challenge coal mining permits under MSUMRA. Currently, such fee-shifting is only allowed against non-permittees when the person’s challenge is unsuccessful and the suit is “brought in bad faith for the purpose of harassing or embarrassing” the permittee or regulator. This SMCRA regulation intends to allow for robust public participation by creating a mechanism for members of the public to obtain attorneys, while protecting them from fees for unsuccessful suits except for cases brought in bad faith. This change, also supported and advanced by the coal industry, is plainly intended to chill public participation and oversight of coal mining in Montana by preventing landowners and nonprofits from taking coal companies to court when they violate the law.

Earthjustice is representing the Sierra Club, WildEarth Guardians, Citizens for Clean Energy, and Montana Environmental Information Center in the suit.