Letter Recommending 4 Principles For MEPA Reform

Letter Recommending 4 Principles For MEPA Reform

Reforming MEPA could be a rare opportunity to forge bipartisan consensus around reforms that modernize the law for the 21st Century, increase predictability for business and benefit the global climate.

October, 25th 2023

Dear Director Dorrington,

The Frontier Institute would like to commend you and your department for your interest in reforming Montana’s bedrock environmental law, the Montana Environmental Policy Act (MEPA).

We believe reforming MEPA could be a rare opportunity to forge bipartisan consensus around reforms that modernize the law for the 21st Century, increase predictability for business and benefit the global climate.

With these goals in mind, below we suggest four principles for your department to consider in guiding MEPA reform:

1. Think Long-Run

With a new mandate from the courts to focus on the global climate, MEPA reformers should empower state agencies to prioritize streamlined, simplified environmental reviews for actions which have clearly beneficial long-run impacts to the global climate that outweigh relatively minor local impacts in the short-run:

Example #1: Safe, emissions-free power generation like wind, solar, nuclear, geothermal, hydroelectric etc.
Reasoning: Nationwide, a vast majority of the planned and in-progress energy projects requiring the most stringent environmental reviews are clean energy related— delaying and even jeopardizing projects widely recognized to be ultimately good for the global climate. Clean energy projects in Montana are also not immune to threats from obstructionist litigation. MEPA reforms could streamline and simplify environmental reviews for critical clean energy projects to increase predictability for business and accelerate clean energy development.

Example #2: Reliable energy sources that aid the rapid transition to clean energy
Reasoning: Intermittent renewable energy sources like wind and solar need to be complimented by reliable power during times of peak demand. For instance, reliable natural gas energy projects are part of Northwestern Energy’s strategy to achieve net zero carbon emissions by 2050, balancing the intermittency of bringing in new wind and solar sources in their generation portfolio. Another example would be energy storage systems. MEPA reforms could prioritize reliable power projects specifically designed to complement renewables with less stringent environmental reviews.

Example #3: Strengthening the electrical grid
Reasoning: Today’s electrical grid is one of the least reliable in the developed world. Strengthening the grid will be necessary to reduce emission-intensive activities and enable electrification in the long-run. MEPA reforms could simplify environmental reviews for transmission lines and projects that harden local grids, such as burying wires.

Example #4: Mining Rare Earth Elements (REE’s)
Reasoning: REE’s are a critical component of hundreds of high-tech products, including wind turbines and electric vehicles. The Berkley Pit and other locations in Montana have been identified as possible high quality sources of REE’s. Reducing MEPA red tape for REE projects in Montana will promote a long-term, environmentally friendly domestic supply chain and reduce global reliance on China’s toxic mining practices for these in-demand minerals.

2. Bring MEPA Into The 21st Century

MEPA’s model rules were adopted in 1988 and have not been updated since. In addition to removing outdated language, MEPA reformers should aim to create specific, objective criteria that limits agency discretion and reduces uncertainty about the MEPA process.

State agencies are currently given an enormous amount of discretion to determine the level and depth of environmental analysis and the detail required under MEPA. While agency discretion is helpful in some cases, it also creates uncertainty for business and increases the likelihood of costly litigation.

For example, the two most commonly litigated MEPA issues are (1) Should the state agency have conducted a MEPA analysis? and (2) Was the MEPA analysis adequate? Frequent litigation on these two issues highlights an area of MEPA that needs clarification.

3. Prioritize Proactive Forest Management

Historically, Montana’s healthy forests were large and effective carbon sinks. Now our forests are carbon emitters, overloaded with dead and beetle-infested trees and increasingly burning from catastrophic wildfires. Montana’s Climate Solutions Plan identifies expanding proactive forest management like thinning and prescribed burns as key strategies to reduce emissions by making forests more resilient to a changing climate and less prone to unnaturally catastrophic fires.

Unfortunately, critical forest management projects are often subject to MEPA-related litigation which delays proactive restoration projects.

MEPA reformers should do everything possible to simplify and streamline environmental reviews for proactive forest management projects to reduce uncertainty and lower the threat of lawsuits that slow down these critical projects.

4. Go Beyond MEPA

MEPA is only a procedural law, intended to supplement agency decision-making. Reformers should also assess opportunities for modernizing and clarifying other substantive environmental regulations. Reformers should consider if the regulations which govern certain activities are truly necessary to protect Montanans’ health, safety and environment and if so, whether the goals of the regulation could be met with a less burdensome restriction.

Adopting the four guiding principles outlined above will ensure successful reforms to modernize MEPA for the 21st Century, increase predictability for business and secure long-term benefits for the global climate. Thank you again for the opportunity to provide input.

In Liberty,

Tanner Avery
Director, Center For New Frontiers
Frontier Institute

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