1. Conference on Environmental Assessments in Federations A Montana Perspective September 14, 2009 Tom Livers, Deputy Director Montana Department of Environmental Quality

4. Projects for Illustration Montana-Alberta Tie Line Keystone Pipeline Powder River Basin Coal Bed Methane

5. Montana Constitution – 1972 • Article II – Declaration of Rights • Section 3. Inalienable rights. • All persons are born free and have certain inalienable rights. They include the right to a clean and healthful environment… In enjoying these rights, all persons recognize corresponding responsibilities.

6. Montana Environmental Assessment Authority Major Facility Siting Act Montana Environmental Policy Act

7. Major Facility Siting Act Compliance with state law Protect the environment Socioeconomic impacts Citizen participation Coordination and efficiency for regulated facilities

8. Findings Necessary for Certificate • Need • Nature of probable environmental impact • Minimal adverse environmental impact • All reasonable, cost effective mitigation of significant impacts • No violation of law in unmitigated impacts

9. Montana Environmental Policy Act (MEPA) • Patterned after National Environmental Policy Act (NEPA) NEPA: “Each person should enjoy a healthful environment.” MEPA: “Each person is entitled to a healthful environment.”

10. Coordination of NEPA and MEPA • NEPA – Federal actions • MEPA – State actions • Joint jurisdiction • State project federally funded • State actions on federal lands • Interstate or international

11. Implementation • Federal and state agencies are required to cooperate • May adopt the other’s environmental review • May prepare a single environmental review

12. Montana – Alberta Tie Line

13. Montana – Alberta Tie Line 230 kV transmission line between Great Falls, Montana and Lethridge, Alberta 2-way energy flow Increased reliability Wind energy development

14. Environmental Review International border Interagency cooperation Disagreed on need for EIS Landowner litigation Late decision delayed approval

15. Keystone Gulf Expansion Project

16. Keystone Gulf Expansion Project Hardisty, Alberta to US Gulf Coast 3200 km oil pipeline International boundary Rejected state request for co-lead

17. Powder River Coal Bed Methane

18. Powder River Coal Bed Methane • Memorandum of Understanding • U.S. Bureau of Land Management • Montana Department of Environmental Quality • Montana Board of Oil and Gas Conservation (BOGC) • Agency responsibilities for contact oversight and decision resolution

19. Cultural and Priority Differences Simultaneous preparation of separate EISs Montana DEQ: water quality and beneficial use protection Wyoming DEQ and Montana BOGC: timely permitting

20. MOU with EPA • EPA aware of cultural differences • Specified integration of NEPA throughout • Montana BOGC objects to “EPA Stubbornness”

21. Conflict over Environmental Impact Statement: • EPA review of draft • Wyoming EIS “unacceptable” • Montana EIS “wanting” • Wyoming objects to EPA criticism • Bureau of Land Management proposes fix for EPA criticism

22. EISs Ultimately Issued Challenged by environmental groups Wyoming Bureau of Land Management direct to redo EIS to address phased development

23. Water Quality Standards • Montana numeric standards • Approved by EPA, challenged by Wyoming and industry • Negotiations with Northern Cheyenne

24. Sunshine LawsMontana Open Meeting Law • All meetings of public…agencies…must be open to the public • Exceptions • Individual privacy • Certain litigation strategy • Certain Supreme Court deliberations • Cancelled meetings and conference calls

25. Future Issues: Electrical Transmission Lines • Western grid congested • Waxman-Markey Bill – Federal Energy Regulatory Commission would control siting in western states • Energy corridors • ~FERC: overrule states on “national interest” projects • ~4th Circuit: states may reject projects on reasonable grounds

27. Federal and State Joint Review:Strengths • Share workload • Share data • Anticipate comments, concerns • Multiple perspectives • Resolve differences • Sounding board • Technical expertise • On-the-ground knowledge, experience

28. Federal and State Joint Reviews:Challenges • Communication more complex • Delays • State statutory constraints

29. http://deq.mt.gov/ -- Montana DEQ home page tlivers@mt.gov  -- my email http://deq.mt.gov/MFS/index.asp -- Montana Facility Siting Program http://leg.mt.gov/content/publications/Environmental/2006mepaguide.pdf -- Guide to MEPA