Montana Public Service Commission (via PSC Twitter account).
A petition that calls on the Montana Public Service Commission to consider the effects of climate in its decisions is still active, but this week, a district court judge dismissed a lawsuit alleging the PSC needed to be forced to take action on the proposal.
In an order Wednesday, Missoula County District Court Judge Leslie Halligan said the Public Service Commission has broad discretion in how it considers new rules, and she said it had met its legal obligations, contrary to petitioners’ allegations.
Thursday, the PSC president praised the order as “thought fully considered and well decided,” but a spokesperson for the petitioners said the outcome only allows more delay as Montanans suffer from smoke and other effects of climate change.
Said PSC President James Brown in a statement: “The court … affirms the right of state agencies to use this process to make rules in a way that allow agencies to gather the information necessary and to allow time for public input to make rules that make sense for the people of Montana.”
But Anne Hedges, spokesperson for petitioners and policy and legislative director for the Montana Environmental Information Center, said the group believes the court erred.
“What the court has done is reinforce a stall tactic to address a crisis that is only getting worse,” Hedges said.
She said petitioners have not decided whether to appeal to the Montana Supreme Court.
In February, 40 organizations and businesses filed the petition that said the PSC should adopt a new rule that requires consideration of adverse climate impacts of greenhouses gas emissions in utility regulation.
Organizations and businesses include Bridger Bowl Ski Area, Helena Hunters and Anglers, Families for a Livable Climate, the Montana Chapter of the American Academy of Pediatrics, MEIC and others.
The proposal drew significant public interest and has received more than 900 comments so far.
In April, the Public Service Commission held a public hearing after receiving more than 500 comments. It also extended the deadline for comment, arguing it would give more people a chance to provide feedback and also possibly help answer some of the questions that had come up about the petition.
But a subset of petitioners said the PSC had lapsed in its duty to start formally considering a new rule, and they took their argument to court.
They said the Public Service Commission couldn’t just hold a public hearing, it had to clearly initiate the rulemaking process, and it missed the 60-day deadline to do so.
The PSC, however, argued it was operating under “informal rulemaking,” allowed by state statute, and its March 19 notice of public comment in fact launched the rulemaking process.
Judge Halligan agreed with the Public Service Commission, although she also said it could have provided more clarity about its intentions to begin with.
Halligan said the court can tell a party to act if that party is clearly failing to perform a legal duty, but it’s an extraordinary remedy — technically, a writ of mandate. And she said the court is barred from doing so where the duty “is discretionary in nature.”
But she said the PSC hasn’t denied rulemaking in this case, the legislature intends agencies to be able to expand the scope of public participation, and the commission is afforded “broad discretion” when it comes to rulemaking.
The order also said there’s no legal authority that says the commission can’t start an informal process before starting “formal rulemaking.”
By issuing its March 19 written notice, the commission “fulfilled its ministerial duty” to publish a notice within the allowed timeframe, the judge said. She said it also has discretion to determine “how to proceed,” and it did so reasoning more input was needed.
“As a matter of public policy, the Commission’s efforts to consider broad public interests and to allow extensive public participation when proceeding with a proposed rule so large in scope is in harmony with the spirit of MAPA,” or the Montana Administrative Procedures Act, the order said.
Hedges, with the petitioners, said the group will keep advocating, as it has done, and time has already run out when it comes to climate.
“If the smoke-filled skies that we are all experiencing this week don’t underscore the need to address this crisis immediately, I’m not sure what does,” she said.
She said the PSC held a hearing in April, and it hasn’t done anything since then to try to help protect rates or climate: “That just shows that they do not feel an obligation to do their job.”
The Public Service Commission’s David Sanders said agency staff are going through public comment — “five volumes of it” — and looking for information that might help clarify some of the questions about the proposed rule.
Sanders also said commissioners had asked the petitioners specific questions about how the rule could work. He said he hopes the petitioners will respond to those questions that now that the judge found the PSC’s process to be legal.
“We would prefer that they participate in a collaborative process with us,” said Sanders, PSC executive director.