Revise remedies to MEPA

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AN ACT REVISING REMEDY REQUIREMENTS OF THE MONTANA ENVIRONMENTAL POLICY ACT
RELATED TO THE ENVIRONMENTAL REVIEW PROCESS; AMENDING SECTIONS 75-1-102, 75-1-201,
AND 75-1-208, MCA; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE AND AN APPLICABILITY DATE.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Section 75-1-102, MCA, is amended to read:
"75-1-102. Intent -- purpose. (1) The legislature, mindful of its constitutional obligations under Article
II, section 3, and Article IX of the Montana constitution, has enacted the Montana Environmental Policy Act. The
Montana Environmental Policy Act is procedural, and it is the legislature's intent that the requirements of parts 1
through 3 of this chapter provide for the adequate review of state actions in order to ensure that:
(a) environmental attributes are fully considered by the legislature in enacting laws to fulfill
constitutional obligations; and
(b) the public is informed of the anticipated impacts in Montana of potential state actions.
(2) The purpose of parts 1 through 3 of this chapter is to declare a state policy that will encourage
productive and enjoyable harmony between humans and their environment, to protect the right to use and enjoy
private property free of undue government regulation, to promote efforts that will prevent, mitigate, or eliminate
damage to the environment and biosphere and stimulate the health and welfare of humans, to enrich the
understanding of the ecological systems and natural resources important to the state, and to establish an
environmental quality council.
(3) (a) The purpose of requiring an environmental assessment and an environmental impact
statement under part 2 of this chapter is to assist the legislature in determining whether laws are adequate to
address impacts to Montana's environment and to inform the public and public officials of potential impacts
resulting from decisions made by state agencies.
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(b) Except to the extent that an applicant agrees to the incorporation of measures in a permit
pursuant to 75-1-201(4)(b) 75-1-201(3)(b), it is not the purpose of parts 1 through 3 of this chapter to provide for
regulatory authority, beyond authority explicitly provided for in existing statute, to a state agency.
Section 2. Section 75-1-201, MCA, is amended to read:
"75-1-201. General directions -- environmental impact statements. (1) The legislature authorizes
and directs that, to the fullest extent possible:
(a) the policies, regulations, and laws of the state must be interpreted and administered in
accordance with the policies set forth in parts 1 through 3;
(b) under this part, all agencies of the state, except the legislature and except as provided in
subsections subsection (2) and (3), shall:
(i) use a systematic, interdisciplinary approach that will ensure:
(A) the integrated use of the natural and social sciences and the environmental design arts in
planning and in decisionmaking for a state-sponsored project that may have an impact on the Montana human
environment by projects in Montana; and
(B) that in any environmental review that is not subject to subsection (1)(b)(iv), when an agency
considers alternatives, the alternative analysis will be in compliance with the provisions of subsections
(1)(b)(iv)(C)(I) and (1)(b)(iv)(C)(II) and, if requested by the project sponsor or if determined by the agency to be
necessary, subsection (1)(b)(iv)(C)(III);
(ii) identify and develop methods and procedures that will ensure that presently unquantified
environmental amenities and values may be given appropriate consideration in decisionmaking for state-
sponsored projects, along with economic and technical considerations;
(iii) identify and develop methods and procedures that will ensure that state government actions
that may impact the human environment in Montana are evaluated for regulatory restrictions on private
property, as provided in subsection (1)(b)(iv)(D);
(iv) include in each recommendation or report on proposals for projects, programs, and other major
actions of state government significantly affecting the quality of the human environment in Montana a detailed
statement on:
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(A) the environmental impact of the proposed action;
(B) any adverse effects on Montana's environment that cannot be avoided if the proposal is
implemented;
(C) alternatives to the proposed action. An analysis of any alternative included in the environmental
review must comply with the following criteria:
(I) any alternative proposed must be reasonable, in that the alternative must be achievable under
current technology and the alternative must be economically feasible as determined solely by the economic
viability for similar projects having similar conditions and physical locations and determined without regard to
the economic strength of the specific project sponsor;
(II) the agency proposing the alternative shall consult with the project sponsor regarding any
proposed alternative, and the agency shall give due weight and consideration to the project sponsor's
comments regarding the proposed alternative;
(III) the agency shall complete a meaningful no-action alternative analysis. The no-action
alternative analysis must include the projected beneficial and adverse environmental, social, and economic
impact of the project's noncompletion.
(D) any regulatory impacts on private property rights, including whether alternatives that reduce,
minimize, or eliminate the regulation of private property rights have been analyzed. The analysis in this
subsection (1)(b)(iv)(D) need not be prepared if the proposed action does not involve the regulation of private
property.
(E) the relationship between local short-term uses of the Montana human environment and the
maintenance and enhancement of long-term productivity;
(F) any irreversible and irretrievable commitments of resources that would be involved in the
proposed action if it is implemented;
(G) the customer fiscal impact analysis, if required by 69-2-216; and
(H) the details of the beneficial aspects of the proposed project, both short-term and long-term, and
the economic advantages and disadvantages of the proposal;
(v) in accordance with the criteria set forth in subsection (1)(b)(iv)(C), study, develop, and describe
appropriate alternatives to recommend courses of action in any proposal that involves unresolved conflicts
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concerning alternative uses of available resources. If the alternatives analysis is conducted for a project that is
not a state-sponsored project and alternatives are recommended, the project sponsor may volunteer to
implement the alternative. Neither the alternatives analysis nor the resulting recommendations bind the project
sponsor to take a recommended course of action, but the project sponsor may agree pursuant to subsection
(4)(b) (3)(b) to a specific course of action.
(vi) recognize the potential long-range character of environmental impacts in Montana and, when
consistent with the policies of the state, lend appropriate support to initiatives, resolutions, and programs
designed to maximize cooperation in anticipating and preventing a decline in the quality of Montana's
environment;
(vii) make available to counties, municipalities, institutions, and individuals advice and information
useful in restoring, maintaining, and enhancing the quality of Montana's environment;
(viii) initiate and use ecological information in the planning and development of resource-oriented
projects; and
(ix) assist the legislature and the environmental quality council established by 5-16-101;
(c) prior to making any detailed statement as provided in subsection (1)(b)(iv), the responsible
state official shall consult with and obtain the comments of any state agency that has jurisdiction by law or
special expertise with respect to any environmental impact involved in Montana and with any Montana local
government, as defined in 7-12-1103, that may be directly impacted by the project. The responsible state
official shall also consult with and obtain comments from any state agency in Montana with respect to any
regulation of private property involved. Copies of the statement and the comments and views of the appropriate
state, federal, and local agencies that are authorized to develop and enforce environmental standards must be
made available to the governor, the environmental quality council, and the public and must accompany the
proposal through the existing agency review processes.
(d) a transfer of an ownership interest in a lease, permit, license, certificate, or other entitlement for
use or permission to act by an agency, either singly or in combination with other state agencies, does not
trigger review under subsection (1)(b)(iv) if there is not a material change in terms or conditions of the
entitlement or unless otherwise provided by law.
(2) (a) Except as provided in subsection (2)(b), an environmental review conducted pursuant to
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subsection (1) may not include an evaluation of greenhouse gas emissions and corresponding impacts to the
climate in the state or beyond the state's borders.
(b) An environmental review conducted pursuant to subsection (1) may include an evaluation if:
(i) conducted jointly by a state agency and a federal agency to the extent the review is required by
the federal agency; or
(ii) the United States congress amends the federal Clean Air Act to include carbon dioxide
emissions as a regulated pollutant.
(3)(2) The department of public service regulation, in the exercise of its regulatory authority over rates
and charges of railroads, motor carriers, and public utilities, is exempt from the provisions of parts 1 through 3.
(4)(3) (a) The agency may not withhold, deny, or impose conditions on any permit or other authority
to act based on parts 1 through 3 of this chapter.
(b) Nothing in this subsection (4) (3) prevents a project sponsor and an agency from mutually
developing measures that may, at the request of a project sponsor, be incorporated into a permit or other
authority to act.
(c) Parts 1 through 3 of this chapter do not confer authority to an agency that is a project sponsor
to modify a proposed project or action.
(5)(4) (a) (i) A challenge to an agency's environmental review under this part may only be brought
against a final agency action decision and may only be brought in district court or in federal court, whichever is
appropriate. A challenge may only be brought by a person who submits formal comments on the agency's
environmental review prior to the agency's final decision, and the challenge must be limited to those issues
addressed in those comments.
(ii) Any action or proceeding challenging a final agency action alleging failure to comply with or
inadequate compliance with a requirement under this part must be brought within 60 days of the action that is
the subject of the challenge.
(iii) For an action taken by the board of land commissioners or the department of natural resources
and conservation under Title 77, "final agency action" means the date that the board of land commissioners or
the department of natural resources and conservation issues a final environmental review document under this
part or the date that the board approves the action that is subject to this part, whichever is later.
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(b) Any action or proceeding under subsection (5)(a)(ii) (4)(a)(ii) must take precedence over other
cases or matters in the district court unless otherwise provided by law.
(c) Any judicial action or proceeding brought in district court under subsection (5)(a) (4)(a)
involving an equine slaughter or processing facility must comply with 81-9-240 and 81-9-241.
(6)(5) (a) (i) In an action alleging noncompliance or inadequate compliance with a requirement of
parts 1 through 3, including a challenge to an agency's decision that an environmental review is not required or
a claim that the environmental review is inadequate, the agency shall compile and submit to the court the
certified record of its decision at issue. The agency, prior to submitting the certified record to the court, shall
assess and collect from the person challenging the decision a fee to pay for actual costs to compile and submit
the certified record. Except as provided in subsection (6)(b) (5)(b), the person challenging the decision has the
burden of proving the claim by clear and convincing evidence contained in the record.
(ii) An action alleging noncompliance or inadequate compliance with a requirement of parts 1
through 3, including a challenge to an agency's decision that an environmental review is not required or a claim
that the environmental review is inadequate based in whole or in part upon greenhouse gas emissions and
impacts to the climate in Montana or beyond Montana's borders, cannot vacate, void, or delay a lease, permit,
license, certificate, authorization, or other entitlement or authority unless the review is required by a federal
agency or the United States congress amends the federal Clean Air Act to include carbon dioxide as a
regulated pollutant.
(iii)(ii) Except as provided in subsection (6)(b) (5)(b), in a challenge to the agency's decision or the
adequacy of an environmental review, a court may not consider any information, including but not limited to an
issue, comment, argument, proposed alternative, analysis, or evidence, that was not first presented to the
agency for the agency's consideration prior to the agency's decision or within the time allowed for comments to
be submitted.
(iv)(iii) Except as provided in subsection (6)(b) (5)(b), the court shall confine its review to the record
certified by the agency. The court shall affirm the agency's decision or the environmental review unless the
court specifically finds that the agency's decision was arbitrary and capricious.
(v)(iv) A customer fiscal impact analysis pursuant to 69-2-216 or an allegation that the customer fiscal
impact analysis is inadequate may not be used as the basis of an action challenging or seeking review of the
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agency's decision.
(b) (i) When a party challenging the decision or the adequacy of the environmental review or
decision presents information not in the record certified by the agency, the challenging party shall certify under
oath in an affidavit that the information is new, material, and significant evidence that was not publicly available
before the agency's decision and that is relevant to the decision or the adequacy of the agency's environmental
review.
(ii) If upon reviewing the affidavit the court finds that the proffered information is new, material, and
significant evidence that was not publicly available before the agency's decision and that is relevant to the
decision or to the adequacy of the agency's environmental review, the court shall remand the new evidence to
the agency for the agency's consideration and an opportunity to modify its decision or environmental review
before the court considers the evidence as a part of the administrative record under review.
(iii) If the court finds that the information in the affidavit does not meet the requirements of
subsection (6)(b)(i) (5)(b)(i), the court may not remand the matter to the agency or consider the proffered
information in making its decision.
(c) (i) The remedies provided in this section for successful challenges to a decision of the agency
or the adequacy of the statement are exclusive.
(ii) If the court finds that noncompliance has occurred with parts 1 through 3 of this chapter, the
court may remand the matter to the agency to correct the noncompliance.
(iii) Notwithstanding the provisions of 27-19-201 and 27-19-314, a court having considered the
pleadings of parties and intervenors opposing a request for a temporary restraining order, preliminary
injunction, permanent injunction, vacatur, or other equitable relief may not enjoin, void, nullify, revoke, modify,
or suspend the issuance or effectiveness of a license or permit or a part of a license or permit issued pursuant
to Title 75 or Title 82 unless the court specifically finds that the party requesting the relief is more likely than not
to prevail on the merits of its complaint given the uncontroverted facts in the record and applicable law and, in
the absence of a temporary restraining order, a preliminary injunction, a permanent injunction, vacatur, or other
equitable relief, that the:
(A) party requesting the relief will suffer irreparable harm in the absence of the relief;
(B) issuance of the relief is in the public interest. In determining whether the grant of the relief is in
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the public interest, a court:
(I) may not consider the legal nature or character of any party; and
(II) shall consider the implications of the relief on the local and state economy and make written
findings with respect to both.
(C) relief is as narrowly tailored as the facts allow to address both the alleged noncompliance and
the irreparable harm the party asking for the relief will suffer. In tailoring the relief, the court shall ensure, to the
extent possible, that the project or as much of the project as possible can go forward while also providing the
relief to which the applicant has been determined to be entitled.
(d) The court may issue a temporary restraining order, preliminary injunction, permanent
injunction, or other injunctive relief only if the party seeking the relief provides a written undertaking to the court
in an amount reasonably calculated by the court as adequate to pay the costs and damages sustained by any
party that may be found to have been wrongfully enjoined or restrained by a court through a subsequent judicial
decision in the case, including but not limited to lost wages of employees and lost project revenues for 1 year. If
the party seeking an injunction or a temporary restraining order objects to the amount of the written undertaking
for any reason, including but not limited to its asserted inability to pay, that party shall file an affidavit with the
court that states the party's income, assets, and liabilities in order to facilitate the court's consideration of the
amount of the written undertaking that is required. The affidavit must be served on the party enjoined. If a
challenge for noncompliance or inadequate compliance with a requirement of parts 1 through 3 seeks to
vacate, void, or delay a lease, permit, license, certificate, or other entitlement or authority, the party shall, as an
initial matter, seek an injunction related to a lease, permit, license, certificate, or other entitlement or authority,
and an An injunction may only be issued if the challenger:
(i) proves there is a likelihood of succeeding on the merits;
(ii) proves there is a violation of an established law or regulation on which the lease, permit,
license, certificate, or other entitlement or authority is based; and
(iii) subject to the demonstration of the inability to pay, posts the appropriate written undertaking.
(e) An individual or entity seeking a lease, permit, license, certificate, or other entitlement or
authority to act may intervene in a lawsuit in court challenging a decision or statement by a department or
agency of the state as a matter of right if the individual or entity has not been named as a defendant.
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(f) Attorney fees or costs may not be awarded to the prevailing party in an action alleging
noncompliance or inadequate compliance with a requirement of parts 1 through 3.
(7)(6) For the purposes of judicial review, to the extent that the requirements of this section are
inconsistent with the provisions of the National Environmental Policy Act, the requirements of this section apply
to an environmental review or any severable portion of an environmental review within the state's jurisdiction
that is being prepared by a state agency pursuant to this part in conjunction with a federal agency proceeding
pursuant to the National Environmental Policy Act.
(8)(7) The director of the agency responsible for the determination or recommendation shall endorse
in writing any determination of significance made under subsection (1)(b)(iv) or any recommendation that a
determination of significance be made.
(9)(8) A project sponsor may request a review of the significance determination or recommendation
made under subsection (8) (7) by the appropriate board, if any. The appropriate board may, at its discretion,
submit an advisory recommendation to the agency regarding the issue. The period of time between the request
for a review and completion of a review under this subsection may not be included for the purposes of
determining compliance with the time limits established for environmental review in 75-1-208."
Section 3. Section 75-1-208, MCA, is amended to read:
"75-1-208. Environmental review procedure. (1) (a) Except as provided in 75-1-205(4) and
subsection (1)(b) of this section, an agency shall comply with this section when completing any environmental
review required under this part.
(b) To the extent that the requirements of this section are inconsistent with federal requirements,
the requirements of this section do not apply to an environmental review that is being prepared jointly by a state
agency pursuant to this part and a federal agency pursuant to the National Environmental Policy Act or to an
environmental review that must comply with the requirements of the National Environmental Policy Act.
(2) (a) Except as provided in subsection (2)(b), a project sponsor may, after providing a 30-day
notice, appear before the environmental quality council at any regularly scheduled meeting to discuss issues
regarding the agency's environmental review of the project. The environmental quality council shall ensure that
the appropriate agency personnel are available to answer questions.
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(b) If the primary concern of the agency's environmental review of a project is the quality or
quantity of water, a project sponsor may, after providing a 30-day notice, appear before the water policy
committee established in 5-5-231 at any regularly scheduled meeting to discuss issues regarding the agency's
environmental review of the project. The water policy committee shall ensure that the appropriate agency
personnel are available to answer questions.
(3) If a project sponsor experiences problems in dealing with the agency or any consultant hired by
the agency regarding an environmental review, the project sponsor may submit a written request to the agency
director requesting a meeting to discuss the issues. The written request must sufficiently state the issues to
allow the agency to prepare for the meeting. If the issues remain unresolved after the meeting with the agency
director, the project sponsor may submit a written request to appear before the appropriate board, if any, to
discuss the remaining issues. A written request to the appropriate board must sufficiently state the issues to
allow the agency and the board to prepare for the meeting.
(4) (a) Subject to the requirements of subsection (5), to ensure a timely completion of the
environmental review process, an agency is subject to the time limits listed in this subsection (4) unless other
time limits are provided by law. All time limits are measured from the date the agency receives a complete
application. An agency has:
(i) 60 days to complete a public scoping process, if any;
(ii) 90 days to complete an environmental review unless a detailed statement pursuant to 75-1-
201(1)(b)(iv) or 75-1-205(4) is required; and
(iii) 180 days to complete a detailed statement pursuant to 75-1-201(1)(b)(iv).
(b) The period of time between the request for a review by a board and the completion of a review
by a board under 75-1-201(9) 75-1-201(8) or subsection (10) of this section may not be included for the
purposes of determining compliance with the time limits established for conducting an environmental review
under this subsection or the time limits established for permitting in 75-2-211, 75-2-218, 75-20-216, 75-20-231,
76-4-114, 82-4-122, 82-4-231, 82-4-337, and 82-4-432.
(5) An agency may extend the time limits in subsection (4) by notifying the project sponsor in
writing that an extension is necessary and stating the basis for the extension. The agency may extend the time
limit one time, and the extension may not exceed 50% of the original time period as listed in subsection (4).
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After one extension, the agency may not extend the time limit unless the agency and the project sponsor
mutually agree to the extension.
(6) If the project sponsor disagrees with the need for the extension, the project sponsor may
request that the appropriate board, if any, conduct a review of the agency's decision to extend the time period.
The appropriate board may, at its discretion, submit an advisory recommendation to the agency regarding the
issue.
(7) (a) Except as provided in subsection (7)(b), if an agency has not completed the environmental
review by the expiration of the original or extended time period, the agency may not withhold a permit or other
authority to act unless the agency makes a written finding that there is a likelihood that permit issuance or other
approval to act would result in the violation of a statutory or regulatory requirement.
(b) Subsection (7)(a) does not apply to a permit granted under Title 75, chapter 2, or under Title
82, chapter 4, parts 1 and 2.
(8) Under this part, an agency may only request information from the project sponsor that is
relevant to the environmental review required under this part.
(9) An agency shall ensure that the notification for any public scoping process associated with an
environmental review conducted by the agency is presented in an objective and neutral manner and that the
notification does not speculate on the potential impacts of the project.
(10) An agency may not require the project sponsor to provide engineering designs in greater detail
than that necessary to fairly evaluate the proposed project. The project sponsor may request that the
appropriate board, if any, review an agency's request regarding the level of design detail information that the
agency believes is necessary to conduct the environmental review. The appropriate board may, at its
discretion, submit an advisory recommendation to the agency regarding the issue.
(11) An agency shall, when appropriate, evaluate the cumulative impacts of a proposed project.
However, related future actions may only be considered when these actions are under concurrent consideration
by any agency through preimpact statement studies, separate impact statement evaluations, or permit
processing procedures."
Section 4. Severability. If a part of [this act] is invalid, all valid parts that are severable from the
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invalid part remain in effect. If a part of [this act] is invalid in one or more of its applications, the part remains in
effect in all valid applications that are severable from the invalid applications.
Section 5. Effective date. [This act] is effective on passage and approval.
Section 6. Coordination instruction. Except as provided in [section 8], if both Senate Bill No. 221
and [this act] are passed and approved and if both contain a section that amends 75-1-201, then the sections
amending 75-1-201 are void and 75-1-201 must be amended as follows:
"75-1-201. General directions -- environmental impact statements. (1) The legislature authorizes
and directs that, to the fullest extent possible:
(a) the policies, regulations, and laws of the state must be interpreted and administered in
accordance with the policies set forth in parts 1 through 3;
(b) under this part, all agencies of the state, except the legislature and except as provided in
subsections (2) and (3) subsection (3), shall:
(i) use a systematic, interdisciplinary approach that will ensure:
(A) the integrated use of the natural and social sciences and the environmental design arts in
planning and in decisionmaking for a state-sponsored project that may have an impact on the Montana human
Montana's environment by projects in Montana; and
(B) that in any environmental review that is not subject to subsection (1)(b)(iv), when an agency
considers alternatives, the alternative analysis will be in compliance with the provisions of subsections
(1)(b)(iv)(C)(I) and (1)(b)(iv)(C)(II) and, if requested by the project sponsor or if determined by the agency to be
necessary, subsection (1)(b)(iv)(C)(III);
(ii) identify and develop methods and procedures that will ensure that presently unquantified
environmental amenities and values may be given appropriate consideration in decisionmaking for state-
sponsored projects, along with economic and technical considerations;
(iii) identify and develop methods and procedures that will ensure that state government actions
that may impact the human environment in Montana Montana's environment are evaluated for regulatory
restrictions on private property, as provided in subsection (1)(b)(iv)(D);
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(iv) include in each recommendation or report on proposals for projects, programs, and other major
actions of state government significantly affecting the quality of the human environment in Montana Montana's
environment a detailed statement on:
(A) the proximate environmental impact impacts of the proposed action;
(B) any proximate adverse effects on Montana's environment that cannot be avoided if the
proposal proposed action is implemented;
(C) alternatives to the proposed action. An analysis of any alternative included in the environmental
review must comply with the following criteria:
(I) any alternative proposed must be reasonable, in that the alternative must be achievable under
current technology and the alternative must be economically feasible as determined solely by the economic
viability for similar projects having similar conditions and physical locations and determined without regard to
the economic strength of the specific project sponsor;
(II) the agency proposing the alternative shall consult with the project sponsor regarding any
proposed alternative, and the agency shall give due weight and consideration to the project sponsor's
comments regarding the proposed alternative;
(III) the agency shall complete a meaningful no-action alternative analysis. The no-action
alternative analysis must include the projected beneficial and adverse environmental, social, and economic
impact of the project's noncompletion.
(D) any regulatory impacts on private property rights, including whether alternatives that reduce,
minimize, or eliminate the regulation of private property rights have been analyzed. The analysis in this
subsection (1)(b)(iv)(D) need not be prepared if the proposed action does not involve the regulation of private
property.
(E) the relationship between local short-term uses of the Montana human Montana's environment
and the maintenance and enhancement of long-term productivity;
(F) any irreversible and irretrievable commitments of resources that would be involved in the
proposed action if it is implemented;
(G) the customer fiscal impact analysis, if required by 69-2-216; and
(H) the details of the beneficial aspects of the proposed project, both short-term and long-term, and
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the economic advantages and disadvantages of the proposal;
(v) in accordance with the criteria set forth in subsection (1)(b)(iv)(C), study, develop, and describe
appropriate alternatives to recommend courses of action in any proposal that involves unresolved conflicts
concerning alternative uses of available resources. If the alternatives analysis is conducted for a project that is
not a state-sponsored project and alternatives are recommended, the project sponsor may volunteer to
implement the alternative. Neither the alternatives analysis nor the resulting recommendations bind the project
sponsor to take a recommended course of action, but the project sponsor may agree pursuant to subsection
(4)(b) to a specific course of action.
(vi) recognize the potential long-range character of environmental impacts in Montana and, when
consistent with the policies of the state, lend appropriate support to initiatives, resolutions, and programs
designed to maximize cooperation in anticipating and preventing a decline in the quality of Montana's
environment;
(vii) make available to counties, municipalities, institutions, and individuals advice and information
useful in restoring, maintaining, and enhancing the quality of Montana's environment;
(viii) initiate and use ecological information in the planning and development of resource-oriented
projects; and
(ix) assist the legislature and the environmental quality council established by 5-16-101;
(c) prior to making any detailed statement as provided in subsection (1)(b)(iv), the responsible
state official shall consult with and obtain the comments of any state agency that has jurisdiction by law or
special expertise with respect to any environmental impact involved in Montana and with any Montana local
government, as defined in 7-12-1103, that may be directly impacted by the project. The responsible state
official shall also consult with and obtain comments from any state agency in Montana with respect to any
regulation of private property involved. Copies of the statement and the comments and views of the appropriate
state, federal, and local agencies that are authorized to develop and enforce environmental standards must be
made available to the governor, the environmental quality council, and the public and must accompany the
proposal through the existing agency review processes.
(d) a transfer of an ownership interest in a lease, permit, license, certificate, or other entitlement for
use or permission to act by an agency, either singly or in combination with other state agencies, does not
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trigger review under subsection (1)(b)(iv) if there is not a material change in terms or conditions of the
entitlement or unless otherwise provided by law.
(2) (a) Except as provided in subsection (2)(b), an An environmental review conducted pursuant to
subsection (1) may not include an evaluation of greenhouse gas emissions and corresponding impacts to the
climate in the state or beyond the state's borders a greenhouse gas assessment subject to [section 1 of Senate
Bill No. 221]. The department of environmental quality shall develop a guidance document for use by state
agencies to determine when a greenhouse gas assessment may be necessary. The guidance must include
direction on methodologies for completing a greenhouse gas assessment. Prior to finalizing this guidance, the
department shall provide public notice of the draft guidance and allow for public comment.
(b) An environmental review conducted pursuant to subsection (1) may include an evaluation of
the reasonably foreseeable environmental impacts of a proposed action if:
(i) conducted jointly by a state agency and a federal agency to the extent the review of the
expanded assessment is required by the federal agency; or
(ii) the United States congress amends the federal Clean Air Act to include carbon dioxide
emissions as a regulated pollutant.
(3) The department of public service regulation, in the exercise of its regulatory authority over rates
and charges of railroads, motor carriers, and public utilities, is exempt from the provisions of parts 1 through 3.
(4) (a) The agency may not withhold, deny, or impose conditions on any permit or other authority
to act based on parts 1 through 3 of this chapter.
(b) Nothing in this subsection (4) prevents a project sponsor and an agency from mutually
developing measures that may, at the request of a project sponsor, be incorporated into a permit or other
authority to act.
(c) Parts 1 through 3 of this chapter do not confer authority to an agency that is a project sponsor
to modify a proposed project or action.
(5) (a) (i) A challenge to an agency's environmental review under this part may only be brought
against a final agency action decision and may only be brought in district court or in federal court, whichever is
appropriate. A challenge may only be brought by a person who submits formal comments on the agency's
environmental review prior to the agency's final decision, and the challenge must be limited to those issues
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addressed in those comments.
(ii) Any action or proceeding challenging a final agency action alleging failure to comply with or
inadequate compliance with a requirement under this part must be brought within 60 days of the action that is
the subject of the challenge.
(iii) For an action taken by the board of land commissioners or the department of natural resources
and conservation under Title 77, "final agency action" means the date that the board of land commissioners or
the department of natural resources and conservation issues a final environmental review document under this
part or the date that the board approves the action that is subject to this part, whichever is later.
(b) Any action or proceeding under subsection (5)(a)(ii) must take precedence over other cases or
matters in the district court unless otherwise provided by law.
(c) Any judicial action or proceeding brought in district court under subsection (5)(a) involving an
equine slaughter or processing facility must comply with 81-9-240 and 81-9-241.
(6) (a) (i) In an action alleging noncompliance or inadequate compliance with a requirement of
parts 1 through 3, including a challenge to an agency's decision that an environmental review is not required or
a claim that the environmental review is inadequate, the agency shall compile and submit to the court the
certified record of its decision at issue. The agency, prior to submitting the certified record to the court, shall
assess and collect from the person challenging the decision a fee to pay for actual costs to compile and submit
the certified record. Except as provided in subsection (6)(b), the person challenging the decision has the burden
of proving the claim by clear and convincing evidence contained in the record.
(ii) An action alleging noncompliance or inadequate compliance with a requirement of parts 1
through 3, including a challenge to an agency's decision that an environmental review is not required or a claim
that the environmental review is inadequate based in whole or in part upon greenhouse gas emissions and
impacts to the climate in Montana or beyond Montana's borders, cannot vacate, void, or delay a lease, permit,
license, certificate, authorization, or other entitlement or authority unless the review is required by a federal
agency or the United States congress amends the federal Clean Air Act to include carbon dioxide as a
regulated pollutant.
(iii)(ii) Except as provided in subsection (6)(b), in a challenge to the agency's decision or the
adequacy of an environmental review, a court may not consider any information, including but not limited to an
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issue, comment, argument, proposed alternative, analysis, or evidence, that was not first presented to the
agency for the agency's consideration prior to the agency's decision or within the time allowed for comments to
be submitted.
(iv)(iii) Except as provided in subsection (6)(b), the court shall confine its review to the record certified
by the agency. The court shall affirm the agency's decision or the environmental review unless the court
specifically finds that the agency's decision was arbitrary and capricious.
(v)(iv) A customer fiscal impact analysis pursuant to 69-2-216 or an allegation that the customer fiscal
impact analysis is inadequate may not be used as the basis of an action challenging or seeking review of the
agency's decision.
(b) (i) When a party challenging the decision or the adequacy of the environmental review or
decision presents information not in the record certified by the agency, the challenging party shall certify under
oath in an affidavit that the information is new, material, and significant evidence that was not publicly available
before the agency's decision and that is relevant to the decision or the adequacy of the agency's environmental
review.
(ii) If upon reviewing the affidavit the court finds that the proffered information is new, material, and
significant evidence that was not publicly available before the agency's decision and that is relevant to the
decision or to the adequacy of the agency's environmental review, the court shall remand the new evidence to
the agency for the agency's consideration and an opportunity to modify its decision or environmental review
before the court considers the evidence as a part of the administrative record under review.
(iii) If the court finds that the information in the affidavit does not meet the requirements of
subsection (6)(b)(i), the court may not remand the matter to the agency or consider the proffered information in
making its decision.
(c) (i) The remedies provided in this section for successful challenges to a decision of the agency
or the adequacy of the statement are exclusive.
(ii) If the court finds that noncompliance has occurred with parts 1 through 3 of this chapter, the
court may remand the matter to the agency to correct the noncompliance
(ii)(iii) Notwithstanding the provisions of 27-19-201 and 27-19-314, a court having considered the
pleadings of parties and intervenors opposing a request for a temporary restraining order, preliminary
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injunction, permanent injunction, vacatur, or other equitable relief may not enjoin, void, nullify, revoke, modify,
or suspend the issuance or effectiveness of a license or permit or a part of a license or permit issued pursuant
to Title 75 or Title 82 unless the court specifically finds that the party requesting the relief is more likely than not
to prevail on the merits of its complaint given the uncontroverted facts in the record and applicable law and, in
the absence of a temporary restraining order, a preliminary injunction, a permanent injunction, vacatur, or other
equitable relief, that the:
(A) party requesting the relief will suffer irreparable harm in the absence of the relief;
(B) issuance of the relief is in the public interest. In determining whether the grant of the relief is in
the public interest, a court:
(I) may not consider the legal nature or character of any party; and
(II) shall consider the implications of the relief on the local and state economy and make written
findings with respect to both.
(C) relief is as narrowly tailored as the facts allow to address both the alleged noncompliance and
the irreparable harm the party asking for the relief will suffer. In tailoring the relief, the court shall ensure, to the
extent possible, that the project or as much of the project as possible can go forward while also providing the
relief to which the applicant has been determined to be entitled.
(d) The court may issue a temporary restraining order, preliminary injunction, permanent
injunction, or other injunctive relief only if the party seeking the relief provides a written undertaking to the court
in an amount reasonably calculated by the court as adequate to pay the costs and damages sustained by any
party that may be found to have been wrongfully enjoined or restrained by a court through a subsequent judicial
decision in the case, including but not limited to lost wages of employees and lost project revenues for 1 year. If
the party seeking an injunction or a temporary restraining order objects to the amount of the written undertaking
for any reason, including but not limited to its asserted inability to pay, that party shall file an affidavit with the
court that states the party's income, assets, and liabilities in order to facilitate the court's consideration of the
amount of the written undertaking that is required. The affidavit must be served on the party enjoined. If a
challenge for noncompliance or inadequate compliance with a requirement of parts 1 through 3 seeks to
vacate, void, or delay a lease, permit, license, certificate, or other entitlement or authority, the party shall, as an
initial matter, seek an injunction related to a lease, permit, license, certificate, or other entitlement or authority,
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and an An injunction may only be issued if the challenger:
(i) proves there is a likelihood of succeeding on the merits;
(ii) proves there is a violation of an established law or regulation on which the lease, permit,
license, certificate, or other entitlement or authority is based; and
(iii) subject to the demonstration of the inability to pay, posts the appropriate written undertaking.
(e) An individual or entity seeking a lease, permit, license, certificate, or other entitlement or
authority to act may intervene in a lawsuit in court challenging a decision or statement by a department or
agency of the state as a matter of right if the individual or entity has not been named as a defendant.
(f) Attorney fees or costs may not be awarded to the prevailing party in an action alleging
noncompliance or inadequate compliance with a requirement of parts 1 through 3.
(7) For the purposes of judicial review, to the extent that the requirements of this section are
inconsistent with the provisions of the National Environmental Policy Act, the requirements of this section apply
to an environmental review or any severable portion of an environmental review within the state's jurisdiction
that is being prepared by a state agency pursuant to this part in conjunction with a federal agency proceeding
pursuant to the National Environmental Policy Act.
(8) The director of the agency responsible for the determination or recommendation shall endorse
in writing any determination of significance made under subsection (1)(b)(iv) or any recommendation that a
determination of significance be made.
(9) A project sponsor may request a review of the significance determination or recommendation
made under subsection (8) by the appropriate board, if any. The appropriate board may, at its discretion, submit
an advisory recommendation to the agency regarding the issue. The period of time between the request for a
review and completion of a review under this subsection may not be included for the purposes of determining
compliance with the time limits established for environmental review in 75-1-208."
Section 7. Coordination instruction. Except as provided in [section 8], if both House Bill No. 285
and [this act] are passed and approved and if both contain a section that amends 75-1-201, then the sections
amending 75-1-201 are void and 75-1-201 must be amended as follows:
"75-1-201. General directions -- environmental impact statements. (1) The legislature authorizes
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and directs that, to the fullest extent possible:
(a) the policies, regulations, and laws of the state must be interpreted and administered in
accordance with the policies set forth in parts 1 through 3;
(b) under this part, all agencies of the state, except the legislature and except as provided in
subsections (2) and (3) subsection (2), shall:
(i) use a systematic, interdisciplinary approach that will must ensure:
(A) the integrated use of the natural and social sciences and the environmental design arts in
planning and in decisionmaking for assessing a state-sponsored project that may have an impact on the
Montana human Montana's environment by projects in Montana; and
(B) that in any environmental review that is not subject to subsection (1)(b)(iv) (1)(a)(iv), when an
agency considers alternatives, the alternative analysis will must be in compliance with the provisions of
subsections (1)(b)(iv)(C)(I) and (1)(b)(iv)(C)(II) (1)(a)(iv)(C)(I) and (1)(a)(iv)(C)(II) and, if requested by the
project sponsor or if determined by the agency to be necessary, subsection (1)(b)(iv)(C)(III) (1)(a)(iv)(C)(III);
(ii) identify and develop methods and procedures that will ensure that presently unquantified
environmental amenities and values may be given appropriate consideration in decisionmaking and
assessment for state-sponsored projects, along with economic and technical considerations;
(iii) identify and develop methods and procedures that will ensure that state government actions
that may impact the human Montana's environment in Montana are evaluated for regulatory restrictions on
private property, as provided in subsection (1)(b)(iv)(D) (1)(a)(iv)(D);
(iv) include in each recommendation or report on proposals for projects, programs, and other major
actions of state government significantly affecting the quality of the human environment in Montana Montana's
environment a detailed statement on:
(A) the environmental impact of the proposed action;
(B) any adverse effects on Montana's environment that cannot be avoided if the proposal is
implemented;
(C) alternatives to the proposed action. An analysis of any alternative included in the environmental
review must comply with the following criteria:
(I) any alternative proposed must be reasonable, in that the alternative must be achievable under
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current technology and the alternative must be economically feasible as determined solely by the economic
viability for similar projects having similar conditions and physical locations and determined without regard to
the economic strength of the specific project sponsor;
(II) the agency proposing the alternative shall consult with the project sponsor regarding any
proposed alternative, and the agency shall give due weight and consideration to the project sponsor's
comments regarding the proposed alternative;
(III) the agency shall complete a meaningful no-action alternative analysis. The no-action
alternative analysis must include the projected beneficial and adverse environmental, social, and economic
impact of the project's noncompletion.
(D) any regulatory impacts on private property rights, including whether alternatives that reduce,
minimize, or eliminate the regulation of private property rights have been analyzed. The analysis in this
subsection (1)(b)(iv)(D) (1)(a)(iv)(D) need not be prepared if the proposed action does not involve the regulation
of private property.
(E) the relationship between local short-term uses of the Montana human environment and the
maintenance and enhancement of long-term productivity;
(F)(E) any irreversible and irretrievable commitments of resources that would be involved in the
proposed action if it is implemented;
(G)(F) the customer fiscal impact analysis, if required by 69-2-216; and
(H)(G) the details of the beneficial aspects of the proposed project, both short-term and long-term, and
the economic advantages and disadvantages of the proposal;
(v) in accordance with the criteria set forth in subsection (1)(b)(iv)(C) (1)(a)(iv)(C), study, develop,
and describe appropriate alternatives to recommend courses of action in any proposal that involves unresolved
conflicts concerning alternative uses of available resources. If the alternatives analysis is conducted for a
project that is not a state-sponsored project and alternatives are recommended, the project sponsor may
volunteer to implement the alternative. Neither the The alternatives analysis nor or the resulting
recommendations may not bind the project sponsor to take a recommended course of action, but the project
sponsor may agree pursuant to subsection (4)(b) to a specific course of action.
(vi) recognize the potential long-range character of environmental impacts in Montana and, when
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consistent with the policies of the state, lend appropriate support to initiatives, resolutions, and programs
designed to maximize cooperation in anticipating and preventing a decline in the quality of Montana's
environment;
(vii)(vi) make available to counties, municipalities, institutions, and individuals advice and information
useful in restoring, maintaining, and enhancing the quality of Montana's environment;
(viii)(vii) initiate and use ecological information in the planning and development of resource-oriented
projects; and
(ix)(viii) assist the legislature and the environmental quality council established by 5-16-101;
(c)(b) prior to making any detailed statement as provided in subsection (1)(b)(iv) (1)(a)(iv), the
responsible state official shall consult with and obtain request the comments of any state agency that has
jurisdiction by law or special expertise with respect to any environmental impact involved in Montana and with
any Montana local government, as defined in 7-12-1103, that may be directly impacted by the project. The
responsible state official shall also consult with and obtain request comments from any state agency in
Montana with respect to any regulation of private property involved. Copies of the statement and the comments
and views of the appropriate state, federal, and local agencies that are authorized to develop and enforce
environmental standards must be made available to the governor, the environmental quality council, and the
public and must accompany the proposal through the existing agency review processes.
(d)(c) a transfer of an ownership interest in a lease, permit, license, certificate, or other entitlement for
use or permission to act by an agency, either singly or in combination with other state agencies, does not
trigger review under subsection (1)(b)(iv) (1)(a)(iv) if there is not a material change in terms or conditions of the
entitlement or unless otherwise provided by law.
(2) (a) Except as provided in subsection (2)(b), an environmental review conducted pursuant to
subsection (1) may not include an evaluation of greenhouse gas emissions and corresponding impacts to the
climate in the state or beyond the state's borders.
(b) An environmental review conducted pursuant to subsection (1) may include an evaluation if:
(i) conducted jointly by a state agency and a federal agency to the extent the review is required by
the federal agency; or
(ii) the United States congress amends the federal Clean Air Act to include carbon dioxide
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emissions as a regulated pollutant.
(3)(2) The department of public service regulation, in the exercise of its regulatory authority over rates
and charges of railroads, motor carriers, and public utilities, is exempt from the provisions of parts 1 through 3.
(4) (a) The agency may not withhold, deny, or impose conditions on any permit or other authority
to act based on parts 1 through 3 of this chapter.
(b) Nothing in this subsection (4) prevents a project sponsor and an agency from mutually
developing measures that may, at the request of a project sponsor, be incorporated into a permit or other
authority to act.
(c) Parts 1 through 3 of this chapter do not confer authority to an agency that is a project sponsor
to modify a proposed project or action.
(5)(3) (a) (i) A challenge to an agency's environmental review under this part may only be brought
against a final agency action state action approved in a final decision document and may only be brought in
district court or in federal court, whichever is appropriate. A challenge may only be brought by a person who
submits formal comments on the agency's environmental review prior to the issuance of the agency's final
decision document, and the challenge must be limited to those issues addressed raised in those comments.
(ii) Any action or proceeding challenging a final agency action state action approved in a final
decision document alleging failure to comply with or inadequate compliance with a requirement under this part
must be brought within 60 days of the action that is the subject of the challenge.
(iii) For an action taken by the board of land commissioners or the department of natural resources
and conservation under Title 77, "final agency action" means the date that the board of land commissioners or
the department of natural resources and conservation issues a final environmental review document under this
part or the date that the board approves the action that is subject to this part, whichever is later.
(b) Any action or proceeding under subsection (5)(a)(ii) (3)(a)(ii) must take precedence over other
cases or matters in the district court unless otherwise provided by law.
(c) Any judicial action or proceeding brought in district court under subsection (5)(a) (3)(a)
involving an equine slaughter or processing facility must comply with 81-9-240 and 81-9-241.
(6)(4) (a) (i) In an action alleging noncompliance or inadequate compliance with a requirement of
parts 1 through 3, including a challenge to an agency's decision that an environmental review is not required or
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a claim that the environmental review is inadequate, the agency shall compile and submit to the court the
certified record of its decision at issue. The agency, prior to submitting the certified record to the court, shall
assess and collect from the person challenging the decision a fee to pay for actual costs to compile and submit
the certified record. Except as provided in subsection (6)(b) (4)(b), the person challenging the decision has the
burden of proving the claim by clear and convincing evidence contained in the record.
(ii) An action alleging noncompliance or inadequate compliance with a requirement of parts 1
through 3, including a challenge to an agency's decision that an environmental review is not required or a claim
that the environmental review is inadequate based in whole or in part upon greenhouse gas emissions and
impacts to the climate in Montana or beyond Montana's borders, cannot vacate, void, or delay a lease, permit,
license, certificate, authorization, or other entitlement or authority unless the review is required by a federal
agency or the United States congress amends the federal Clean Air Act to include carbon dioxide as a
regulated pollutant.
(iii)(ii) Except as provided in subsection (6)(b) (4)(b), in a challenge to the agency's decision or the
adequacy of an environmental review, a court may not consider any information, including but not limited to an
issue, comment, argument, proposed alternative, analysis, or evidence, that was not first presented to the
agency for the agency's consideration prior to the agency's decision or within the time allowed for comments to
be submitted.
(iv)(iii) Except as provided in subsection (6)(b) (4)(b), the court shall confine its review to the record
certified by the agency. The court shall affirm the agency's decision or the environmental review unless the
court specifically finds that the agency's decision was arbitrary and capricious.
(v)(iv) A customer fiscal impact analysis pursuant to 69-2-216 or an allegation that the customer fiscal
impact analysis is inadequate may not be used as the basis of an action challenging or seeking review of the
agency's decision.
(b) (i) When a party challenging the decision or the adequacy of the environmental review or
decision presents information not in the record certified by the agency, the challenging party shall certify under
oath in an affidavit that the information is new, material, and significant evidence that was not publicly available
before the agency's decision and that is relevant to the decision or the adequacy of the agency's environmental
review.
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(ii) If upon on reviewing the affidavit the court finds that the proffered information is new, material,
and significant evidence that was not publicly available before the agency's decision and that is relevant to the
decision or to the adequacy of the agency's environmental review, the court shall remand the new evidence to
the agency for the agency's consideration and an opportunity to modify its decision or environmental review
before the court considers the evidence as a part of the administrative record under review.
(iii) If the court finds that the information in the affidavit does not meet the requirements of
subsection (6)(b)(i) (4)(b)(i), the court may not remand the matter to the agency or consider the proffered
information in making its decision.
(c) (i) The remedies provided in this section for successful challenges to a decision of the agency
or the adequacy of the statement are exclusive.
(ii) If the court finds that noncompliance has occurred with parts 1 through 3 of this chapter, the
court may remand the matter to the agency to correct the noncompliance.
(ii)(iii) Notwithstanding the provisions of 27-19-201 and 27-19-314, a court having considered the
pleadings of parties and intervenors opposing a request for a temporary restraining order, preliminary
injunction, permanent injunction, vacatur, or other equitable relief may not enjoin, void, nullify, revoke, modify,
or suspend the issuance or effectiveness of a license or permit or a part of a license or permit issued pursuant
to Title 75 or Title 82 unless the court specifically finds that the party requesting the relief is more likely than not
to prevail on the merits of its complaint given the uncontroverted facts in the record and applicable law and, in
the absence of a temporary restraining order, a preliminary injunction, a permanent injunction, vacatur, or other
equitable relief, that the:
(A) party requesting the relief will suffer irreparable harm in the absence of the relief;
(B) issuance of the relief is in the public interest. In determining whether the grant of the relief is in
the public interest, a court:
(I) may not consider the legal nature or character of any party; and
(II) shall consider the implications of the relief on the local and state economy and make written
findings with respect to both.
(C) relief is as narrowly tailored as the facts allow to address both the alleged noncompliance and
the irreparable harm the party asking for the relief will suffer. In tailoring the relief, the court shall ensure, to the
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extent possible, that the project or as much of the project as possible can go forward while also providing the
relief to which the applicant has been determined to be entitled.
(d) The court may issue a temporary restraining order, preliminary injunction, permanent
injunction, or other injunctive relief only if the party seeking the relief provides a written undertaking to the court
in an amount reasonably calculated by the court as adequate to pay the costs and damages sustained by any
party that may be found to have been wrongfully enjoined or restrained by a court through a subsequent judicial
decision in the case, including but not limited to lost wages of employees and lost project revenues for 1 year. If
the party seeking an injunction or a temporary restraining order objects to the amount of the written undertaking
for any reason, including but not limited to its asserted inability to pay, that party shall file an affidavit with the
court that states the party's income, assets, and liabilities in order to facilitate the court's consideration of the
amount of the written undertaking that is required. The affidavit must be served on the party enjoined. If a
challenge for noncompliance or inadequate compliance with a requirement of parts 1 through 3 seeks to
vacate, void, or delay a lease, permit, license, certificate, or other entitlement or authority, the party shall, as an
initial matter, seek an injunction related to a lease, permit, license, certificate, or other entitlement or authority,
and an An injunction may only be issued if the challenger:
(i) proves there is a likelihood of succeeding on the merits;
(ii) proves there is a violation of an established law or regulation on which the lease, permit,
license, certificate, or other entitlement or authority is based; and
(iii) subject to the demonstration of the inability to pay, posts the appropriate written undertaking.
(e) An individual or entity seeking a lease, permit, license, certificate, or other entitlement or
authority to act may intervene in a lawsuit in court challenging a decision or statement by a department or
agency of the state as a matter of right if the individual or entity has not been named as a defendant.
(f) Attorney fees or costs may not be awarded to the prevailing party in an action alleging
noncompliance or inadequate compliance with a requirement of parts 1 through 3.
(7)(5) For the purposes of judicial review, to the extent that the requirements of this section are
inconsistent with the provisions of the National Environmental Policy Act, the requirements of this section apply
to an environmental review or any severable portion of an environmental review within the state's jurisdiction
that is being prepared by a state agency pursuant to this part in conjunction with a federal agency proceeding
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pursuant to the National Environmental Policy Act.
(8)(6) The director of the agency responsible for the determination or recommendation shall endorse
in writing any determination of significance made under subsection (1)(b)(iv) (1)(a)(iv) or any recommendation
that a determination of significance be made.
(9)(7) A project sponsor may request a review of the significance determination or recommendation
made under subsection (8) (6) by the appropriate board, if any. The appropriate board may, at its discretion,
submit an advisory recommendation to the agency regarding the issue. The period of time between the request
for a review and completion of a review under this subsection may not be included for the purposes of
determining compliance with the time limits established for environmental review in 75-1-208."
Section 8. Coordination instruction. If House Bill No. 285, Senate Bill No. 221, and [this act] are all
passed and approved and if all three contain a section that amends 75-1-201, then [sections 6 and 7 of this act]
and [section 12 of House Bill No. 285] are void, the sections amending 75-1-201 are void, and 75-1-201 must
be amended as follows:
"75-1-201. General directions -- environmental impact statements. (1) The legislature authorizes
and directs that, to the fullest extent possible:
(a) the policies, regulations, and laws of the state must be interpreted and administered in
accordance with the policies set forth in parts 1 through 3;
(b) under this part, all agencies of the state, except the legislature and except as provided in
subsections (2) and (3) subsection (3), shall:
(i) use a systematic, interdisciplinary approach that will ensure:
(A) the integrated use of the natural and social sciences and the environmental design arts in
planning and in decisionmaking for assessing a state-sponsored project that may have an impact on the
Montana human Montana's environment by projects in Montana; and
(B) that in any environmental review that is not subject to subsection (1)(b)(iv) (1)(a)(iv), when an
agency considers alternatives, the alternative analysis will must be in compliance with the provisions of
subsections (1)(b)(iv)(C)(I) and (1)(b)(iv)(C)(II) (1)(a)(iv)(C)(I) and (1)(a)(iv)(C)(II) and, if requested by the
project sponsor or if determined by the agency to be necessary, subsection (1)(b)(iv)(C)(III) (1)(a)(iv)(C)(III);
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(ii) identify and develop methods and procedures that will ensure that presently unquantified
environmental amenities and values may be given appropriate consideration in decisionmaking and
assessment for state-sponsored projects, along with economic and technical considerations;
(iii) identify and develop methods and procedures that will ensure that state government actions
that may impact the human Montana's environment in Montana are evaluated for regulatory restrictions on
private property, as provided in subsection (1)(b)(iv)(D) (1)(a)(iv)(D);
(iv) include in each recommendation or report on proposals for projects, programs, and other major
actions of state government significantly affecting the quality of the human environment in Montana Montana's
environment a detailed statement on:
(A) the proximate environmental impact impacts of the proposed action;
(B) any proximate adverse effects on Montana's environment that cannot be avoided if the
proposal proposed action is implemented;
(C) alternatives to the proposed action. An analysis of any alternative included in the environmental
review must comply with the following criteria:
(I) any alternative proposed must be reasonable, in that the alternative must be achievable under
current technology and the alternative must be economically feasible as determined solely by the economic
viability for similar projects having similar conditions and physical locations and determined without regard to
the economic strength of the specific project sponsor;
(II) the agency proposing the alternative shall consult with the project sponsor regarding any
proposed alternative, and the agency shall give due weight and consideration to the project sponsor's
comments regarding the proposed alternative;
(III) the agency shall complete a meaningful no-action alternative analysis. The no-action
alternative analysis must include the projected beneficial and adverse environmental, social, and economic
impact of the project's noncompletion.
(D) any regulatory impacts on private property rights, including whether alternatives that reduce,
minimize, or eliminate the regulation of private property rights have been analyzed. The analysis in this
subsection (1)(b)(iv)(D) (1)(a)(iv)(D) need not be prepared if the proposed action does not involve the regulation
of private property.
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(E) the relationship between local short-term uses of the Montana human environment and the
maintenance and enhancement of long-term productivity;
(F)(E) any irreversible and irretrievable commitments of resources that would be involved in the
proposed action if it is implemented;
(G)(F) the customer fiscal impact analysis, if required by 69-2-216; and
(H)(G) the details of the beneficial aspects of the proposed project, both short-term and long-term, and
the economic advantages and disadvantages of the proposal;
(v) in accordance with the criteria set forth in subsection (1)(b)(iv)(C) (1)(a)(iv)(C), study, develop,
and describe appropriate alternatives to recommend courses of action in any proposal that involves unresolved
conflicts concerning alternative uses of available resources. If the alternatives analysis is conducted for a
project that is not a state-sponsored project and alternatives are recommended, the project sponsor may
volunteer to implement the alternative. Neither the The alternatives analysis nor or the resulting
recommendations may not bind the project sponsor to take a recommended course of action, but the project
sponsor may agree pursuant to subsection (4)(b) to a specific course of action.
(vi) recognize the potential long-range character of environmental impacts in Montana and, when
consistent with the policies of the state, lend appropriate support to initiatives, resolutions, and programs
designed to maximize cooperation in anticipating and preventing a decline in the quality of Montana's
environment;
(vii)(vi) make available to counties, municipalities, institutions, and individuals advice and information
useful in restoring, maintaining, and enhancing the quality of Montana's environment;
(viii)(vii) initiate and use ecological information in the planning and development of resource-oriented
projects; and
(ix)(viii) assist the legislature and the environmental quality council established by 5-16-101;
(c)(b) prior to making any detailed statement as provided in subsection (1)(b)(iv) (1)(a)(iv), the
responsible state official shall consult with and obtain request the comments of any state agency that has
jurisdiction by law or special expertise with respect to any environmental impact involved in Montana and with
any Montana local government, as defined in 7-12-1103, that may be directly impacted by the project. The
responsible state official shall also consult with and obtain request comments from any state agency in
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Montana with respect to any regulation of private property involved. Copies of the statement and the comments
and views of the appropriate state, federal, and local agencies that are authorized to develop and enforce
environmental standards must be made available to the governor, the environmental quality council, and the
public and must accompany the proposal through the existing agency review processes.
(d)(c) a transfer of an ownership interest in a lease, permit, license, certificate, or other entitlement for
use or permission to act by an agency, either singly or in combination with other state agencies, does not
trigger review under subsection (1)(b)(iv) (1)(a)(iv) if there is not a material change in terms or conditions of the
entitlement or unless otherwise provided by law.
(2) (a) Except as provided in subsection (2)(b), an An environmental review conducted pursuant to
subsection (1) may not include an evaluation of greenhouse gas emissions and corresponding impacts to the
climate in the state or beyond the state's borders a greenhouse gas assessment subject to [section 1 of Senate
Bill No. 221]. The department of environmental quality shall develop a guidance document for use by state
agencies to determine when a greenhouse gas assessment may be necessary. The guidance must include
direction on methodologies for completing a greenhouse gas assessment. Prior to finalizing this guidance, the
department shall provide public notice of the draft guidance and allow for public comment.
(b) An environmental review conducted pursuant to subsection (1) may include an evaluation of
the reasonably foreseeable environmental impacts of a proposed action if:
(i) conducted jointly by a state agency and a federal agency to the extent the review of the
expanded assessment is required by the federal agency; or
(ii) the United States congress amends the federal Clean Air Act to include carbon dioxide
emissions as a regulated pollutant.
(3) The department of public service regulation, in the exercise of its regulatory authority over rates
and charges of railroads, motor carriers, and public utilities, is exempt from the provisions of parts 1 through 3.
(4) (a) The agency may not withhold, deny, or impose conditions on any permit or other authority
to act based on parts 1 through 3 of this chapter.
(b) Nothing in this subsection (4) prevents a project sponsor and an agency from mutually
developing measures that may, at the request of a project sponsor, be incorporated into a permit or other
authority to act.
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(c) Parts 1 through 3 of this chapter do not confer authority to an agency that is a project sponsor
to modify a proposed project or action.
(5)(4) (a) (i) A challenge to an agency's environmental review under this part may only be brought
against a final agency action state action approved in a final decision document and may only be brought in
district court or in federal court, whichever is appropriate. A challenge may only be brought by a person who
submits formal comments on the agency's environmental review prior to the issuance of the agency's final
decision document, and the challenge must be limited to those issues addressed raised in those comments.
(ii) Any action or proceeding challenging a final agency action state action approved in a final
decision document alleging failure to comply with or inadequate compliance with a requirement under this part
must be brought within 60 days of the action that is the subject of the challenge.
(iii) For an action taken by the board of land commissioners or the department of natural resources
and conservation under Title 77, "final agency action" means the date that the board of land commissioners or
the department of natural resources and conservation issues a final environmental review document under this
part or the date that the board approves the action that is subject to this part, whichever is later.
(b) Any action or proceeding under subsection (5)(a)(ii) (4)(a)(ii) must take precedence over other
cases or matters in the district court unless otherwise provided by law.
(c) Any judicial action or proceeding brought in district court under subsection (5)(a) (4)(a)
involving an equine slaughter or processing facility must comply with 81-9-240 and 81-9-241.
(6)(5) (a) (i) In an action alleging noncompliance or inadequate compliance with a requirement of
parts 1 through 3, including a challenge to an agency's decision that an environmental review is not required or
a claim that the environmental review is inadequate, the agency shall compile and submit to the court the
certified record of its decision at issue. The agency, prior to submitting the certified record to the court, shall
assess and collect from the person challenging the decision a fee to pay for actual costs to compile and submit
the certified record. Except as provided in subsection (6)(b) (5)(b), the person challenging the decision has the
burden of proving the claim by clear and convincing evidence contained in the record.
(ii) An action alleging noncompliance or inadequate compliance with a requirement of parts 1
through 3, including a challenge to an agency's decision that an environmental review is not required or a claim
that the environmental review is inadequate based in whole or in part upon greenhouse gas emissions and
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impacts to the climate in Montana or beyond Montana's borders, cannot vacate, void, or delay a lease, permit,
license, certificate, authorization, or other entitlement or authority unless the review is required by a federal
agency or the United States congress amends the federal Clean Air Act to include carbon dioxide as a
regulated pollutant.
(iii)(ii) Except as provided in subsection (6)(b) (5)(b), in a challenge to the agency's decision or the
adequacy of an environmental review, a court may not consider any information, including but not limited to an
issue, comment, argument, proposed alternative, analysis, or evidence, that was not first presented to the
agency for the agency's consideration prior to the agency's decision or within the time allowed for comments to
be submitted.
(iv)(iii) Except as provided in subsection (6)(b) (5)(b), the court shall confine its review to the record
certified by the agency. The court shall affirm the agency's decision or the environmental review unless the
court specifically finds that the agency's decision was arbitrary and capricious.
(v)(iv) A customer fiscal impact analysis pursuant to 69-2-216 or an allegation that the customer fiscal
impact analysis is inadequate may not be used as the basis of an action challenging or seeking review of the
agency's decision.
(b) (i) When a party challenging the decision or the adequacy of the environmental review or
decision presents information not in the record certified by the agency, the challenging party shall certify under
oath in an affidavit that the information is new, material, and significant evidence that was not publicly available
before the agency's decision and that is relevant to the decision or the adequacy of the agency's environmental
review.
(ii) If upon on reviewing the affidavit the court finds that the proffered information is new, material,
and significant evidence that was not publicly available before the agency's decision and that is relevant to the
decision or to the adequacy of the agency's environmental review, the court shall remand the new evidence to
the agency for the agency's consideration and an opportunity to modify its decision or environmental review
before the court considers the evidence as a part of the administrative record under review.
(iii) If the court finds that the information in the affidavit does not meet the requirements of
subsection (6)(b)(i) (5)(b)(i), the court may not remand the matter to the agency or consider the proffered
information in making its decision.
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(c) (i) The remedies provided in this section for successful challenges to a decision of the agency
or the adequacy of the statement are exclusive.
(ii) If the court finds that noncompliance has occurred with parts 1 through 3 of this chapter, the
court may remand the matter to the agency to correct the noncompliance.
(ii)(iii) Notwithstanding the provisions of 27-19-201 and 27-19-314, a court having considered the
pleadings of parties and intervenors opposing a request for a temporary restraining order, preliminary
injunction, permanent injunction, vacatur, or other equitable relief may not enjoin, void, nullify, revoke, modify,
or suspend the issuance or effectiveness of a license or permit or a part of a license or permit issued pursuant
to Title 75 or Title 82 unless the court specifically finds that the party requesting the relief is more likely than not
to prevail on the merits of its complaint given the uncontroverted facts in the record and applicable law and, in
the absence of a temporary restraining order, a preliminary injunction, a permanent injunction, vacatur, or other
equitable relief, that the:
(A) party requesting the relief will suffer irreparable harm in the absence of the relief;
(B) issuance of the relief is in the public interest. In determining whether the grant of the relief is in
the public interest, a court:
(I) may not consider the legal nature or character of any party; and
(II) shall consider the implications of the relief on the local and state economy and make written
findings with respect to both.
(C) relief is as narrowly tailored as the facts allow to address both the alleged noncompliance and
the irreparable harm the party asking for the relief will suffer. In tailoring the relief, the court shall ensure, to the
extent possible, that the project or as much of the project as possible can go forward while also providing the
relief to which the applicant has been determined to be entitled.
(d) The court may issue a temporary restraining order, preliminary injunction, permanent
injunction, or other injunctive relief only if the party seeking the relief provides a written undertaking to the court
in an amount reasonably calculated by the court as adequate to pay the costs and damages sustained by any
party that may be found to have been wrongfully enjoined or restrained by a court through a subsequent judicial
decision in the case, including but not limited to lost wages of employees and lost project revenues for 1 year. If
the party seeking an injunction or a temporary restraining order objects to the amount of the written undertaking
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for any reason, including but not limited to its asserted inability to pay, that party shall file an affidavit with the
court that states the party's income, assets, and liabilities in order to facilitate the court's consideration of the
amount of the written undertaking that is required. The affidavit must be served on the party enjoined. If a
challenge for noncompliance or inadequate compliance with a requirement of parts 1 through 3 seeks to
vacate, void, or delay a lease, permit, license, certificate, or other entitlement or authority, the party shall, as an
initial matter, seek an injunction related to a lease, permit, license, certificate, or other entitlement or authority,
and an An injunction may only be issued if the challenger:
(i) proves there is a likelihood of succeeding on the merits;
(ii) proves there is a violation of an established law or regulation on which the lease, permit,
license, certificate, or other entitlement or authority is based; and
(iii) subject to the demonstration of the inability to pay, posts the appropriate written undertaking.
(e) An individual or entity seeking a lease, permit, license, certificate, or other entitlement or
authority to act may intervene in a lawsuit in court challenging a decision or statement by a department or
agency of the state as a matter of right if the individual or entity has not been named as a defendant.
(f) Attorney fees or costs may not be awarded to the prevailing party in an action alleging
noncompliance or inadequate compliance with a requirement of parts 1 through 3.
(7)(6) For the purposes of judicial review, to the extent that the requirements of this section are
inconsistent with the provisions of the National Environmental Policy Act, the requirements of this section apply
to an environmental review or any severable portion of an environmental review within the state's jurisdiction
that is being prepared by a state agency pursuant to this part in conjunction with a federal agency proceeding
pursuant to the National Environmental Policy Act.
(8)(7) The director of the agency responsible for the determination or recommendation shall endorse
in writing any determination of significance made under subsection (1)(b)(iv) (1)(a)(iv) or any recommendation
that a determination of significance be made.
(9)(8) A project sponsor may request a review of the significance determination or recommendation
made under subsection (8) (7) by the appropriate board, if any. The appropriate board may, at its discretion,
submit an advisory recommendation to the agency regarding the issue. The period of time between the request
for a review and completion of a review under this subsection may not be included for the purposes of
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determining compliance with the time limits established for environmental review in 75-1-208."
Section 9. Applicability. [This act] applies to all decisions pending but not decided by a court and
cases filed on or after [the effective date of this act].
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I hereby certify that the within bill,
HB 270, originated in the House.
___________________________________________
Chief Clerk of the House
___________________________________________
Speaker of the House
Signed this _______________________________day
of____________________________________, 2025.
___________________________________________
President of the Senate
Signed this _______________________________day
of____________________________________, 2025.
HOUSE BILL NO. 270
INTRODUCED BY K. ZOLNIKOV, W. GALT
AN ACT REVISING REMEDY REQUIREMENTS OF THE MONTANA ENVIRONMENTAL POLICY ACT
RELATED TO THE ENVIRONMENTAL REVIEW PROCESS; AMENDING SECTIONS 75-1-102, 75-1-201, AND
75-1-208, MCA; AND PROVIDING AN IMMEDIATE EFFECTIVE DATE AND AN APPLICABILITY DATE.