Eminently Debatable: Judge Moses’s Reasoning On The Laurel Power Plant Shutdown
"Yet, according to Judge Moses, the plain meaning of a 12-year-old statute, with no subsequent GHG reduction statutes or regulations and after countless other environmental reviews, now compels the DEQ to suddenly develop a regulatory framework for assessing the impact of GHG for the Laurel Plant project is eminently debatable."
Earlier this month, Yellowstone County District Judge Michael Moses halted the construction of NorthWestern Energy’s gas power plant in Laurel. The plant is expected to produce 175 megawatts, that is enough power to provide approximately 46,000 homes with electricity. The Montana Environmental Information Center and the Sierra Club filed suit against the Department of Environmental Quality (DEQ) and NorthWestern Energy in 2021.
The plaintiffs claimed the DEQ failed to take a “hard look” at seven issues ranging from water quality and pipeline safety to noise and lighting pollution. Of the seven complaints, Judge Moses granted the plaintiff’s summary judgment for lighting pollution and Greenhouse Gas (GHG) emissions. For those who are unfamiliar, summary judgment is a determination made by a court for one party and against another party, without having to go to the full trial. Summary judgments occur when a court rules that there is no dispute over the specific case and thus the case can be decided without having to go to trial.
The Judge’s summary judgment findings invalidated the proposed plant’s air quality permit because the DEQ didn’t consider the environmental impact of GHG emissions in its environmental impact statement, successfully halting the project.
The judge’s decision has sparked outcry from both lawmakers and industry voices who point to Montana law under 75-1-201, which states that the DEQ cannot consider the actual or potential impact “beyond Montana’s borders” on the human environment in its impact statement. The section of law is below (emphasis added):
“(2)(a) Except as provided in subsection (2)(b), an environmental review conducted pursuant to subsection (1) may not include a review of actual or potential impacts beyond Montana’s borders. It may not include actual or potential impacts that are regional, national, or global in nature.”
Judge Moses’s controversial ruling claims that the law actually requires the greenhouse gases produced by the plant to be part of the DEQ environmental impact analysis.
I have spent a lot of time reading the governing statutes of the DEQ, which made Judge Moses’ ruling on the Laurel plant particularly confusing. Judge Moses claims that as part of the DEQ’s environmental review, the Department is supposed to review the impact of greenhouse gas emissions (GHG) on the climate, despite there being no explicit statutory or regulatory requirement for this. The Judge claims that even though an environmental review cannot look “beyond Montana’s borders” per MEPA statute, the “plain language” of the statute is so obvious that the plaintiffs win by summary judgment.
Reading his ruling reminded me of a quote from a textbook I had during law school:
“the [plain meaning] doctrine is essentially sound but largely unhelpful, since determining what is unambiguous is eminently debatable” – Justice Scalia
To be fair, it is a lawyer’s job to make everything eminently debatable.
First, let’s talk about plain-meaning doctrine. This method of legal interpretation compels a judge to first look at the words of the statute itself. As stated by Supreme Court Justice Thomas, “when the words of a statute are unambiguous, then, this first canon is also the last: ‘judicial inquiry is complete.’” Moses claims that “beyond Montana’s borders” unambiguously also entails an environmental review of GHG emissions. Therefore, under the plain-meaning doctrine, no other analysis is needed, and the plaintiff wins on summary judgment. However, If the words are ambiguous, then the judge looks at policy arguments, legislative history or other extraneous texts surrounding the statute.
It’s important to look at the plain meaning of “potential impacts that are … global in nature.” I would say that GHG emissions are unambiguously global in nature. But it’s not just me; California courts acknowledge the difficulty. In a 2015 case, California’s Supreme Court stated that “because of the global scale of climate change, any one project’s contribution is unlikely to be significant by itself” and “the fact that [CO2] and other [GHG], once released into the atmosphere, are not contained in the local area of their emissions means the impacts to be evaluated are also global rather than local.” Contrary to Moses, California says GHG emissions are global in nature, so there might be some ambiguity after all.
Perhaps California and I are wrong, but to say the MEPA statute words are unambiguous and therefore deserving of summary judgment is, well, eminently debatable.
Second, the judge completely dismissing DEQ’s claim that it cannot regulate GHG emissions is strange. The statute was amended to include the “beyond Montana’s borders” language in 2011, more than ten years ago. After listening to the available audio on this bill’s hearings and floor debates, the issue of GHG emissions only came up by one bill proponent that favored the bill’s narrowing of MEPA’s scope so that impacts on climate change aren’t considered in the environmental review.
Again, let’s look at California. Like Montana, California modeled its environmental statutes after the National Environmental Policy Act. Unlike Montana, California actually passed legislation requiring their Natural Resources Agency (NRA) to create regulations for GHG reduction in 2007. It took an additional three years for the NRA to create a regulatory framework for assessing the significance of GHG impact from a project subject to the state’s environmental review. The question is, where are the statutes and regulations that compel and instruct how the DEQ is supposed to assess the impact of GHGs?
The answer is that there aren’t any statutes or regulations. Yet, according to Judge Moses, the plain meaning of a 12-year-old statute, with no subsequent GHG reduction statutes or regulations and after countless other environmental reviews, now compels the DEQ to suddenly develop a regulatory framework for assessing the impact of GHG for the Laurel Plant project is eminently debatable.