Smoke emissions from an industrial coal burning electric power plant. (Photo by Getty Images.)
A group of Montana businesses and environmental organizations filed a court petition Wednesday seeking to force the Public Service Commission to either formally consider their request to include climate change in their decisions or deny it, accusing the commission of stalling in violation of the law.
Eleven of the 40 organizations that originally filed the petition in late February signed onto the request for a writ of mandamus, which was filed in Gallatin County District Court.
They say the PSC is well past its 60-day deadline to either begin the rulemaking process or to deny the request.
“Montanans need our state officials to follow laws requiring timely responses to petitions like ours,” said Western Environmental Law Center attorney Melissa Hornbein, one of the attorneys for the petitioners. “The commission’s failure to act on this petition within the time required casts our future into uncertainty.
“We need state government to take action to protect the health of Montanans today and ensure their health will not be jeopardized in the future.”
April 28 marked the 60-day deadline for the commission to accept or deny the petition, according to statute, but the commission did not make a decision by then after holding a public hearing on April 8 that featured more than 80 speakers. Accepting the petition kicks off a public process to consider the ideas from the group; it doesn’t mean the PSC approves them.
The public comment period was initially set to end on April 12, by which time the commission had already received more than 500 public comments, according to court filings. At a meeting on April 30, Commissioner Annie Bukacek tried to get the commission to deny the petition, but the effort failed.
The commission also decided to extend the public comment period for the petition to July 1 and to ask more questions of the petitioners, though the commission’s counsel said at the time the PSC was not taking formal action on the petition with that decision.
On May 9, the group of organizations told the PSC it was violating a section of law that says agencies must deny or accept a petition for rulemaking in writing within 60 days of its submission. Accepting it would launch a process that includes things like hearing from the public.
Bukacek, one of five commissioners on the all-Republican regulatory board, made another motion to deny the petition at a commission meeting on May 28, but no other commissioner seconded the motion, so it did not go to a vote. The group of petitioners said voting one way or another – even though it was outside the timeframe in statute – would have resolved their issue.
But as of Wednesday, according to the groups, the PSC has still not acted. The executive director of the PSC confirmed that was the case.
The group of petitioners say the PSC’s failure to act puts the petitioners’ livelihoods, safety and health in jeopardy because of climate change. They also accuse the PSC of trying to stall rulemaking until the Oct. 1 moratorium hits that halts new rulemaking before a legislative session.
The Montana Environmental Information Center’s Nick Fitzmaurice told the commission as much at its meeting on May 28.
The PSC contended it has asked for more information from the petitioners and more public comments to inform a commission decision on whether to start the rulemaking process.
PSC Executive Director David Sanders said Wednesday the groups still hadn’t responded and that the PSC believes the public comment process is part of Montanans’ right to know. Sanders said he believes the PSC is rightfully operating as an informal conference under the Montana Administrative Procedure Act, which are allowed “as a means of obtaining the viewpoints and advice of interested persons with respect to contemplated rulemaking.”
But that same statute also says that “nothing herein shall relieve the agency from following rulemaking procedures. He said the PSC has now received 816 comments on the petition to consider climate change in its decision-making and he believes the extended comment period is necessary before a decision is made on whether to proceed with rulemaking.
“We’re not trying to delay anything. We’re just trying to get answers to the questions that we posed in the board’s most recent action on this subject,” Sanders said. “We’re trying to get answers to questions, and we’re trying to give the public ample opportunity to participate in the process, as is their right.”
But the group of petitioners say the PSC is operating outside of statutory boundaries and needs to approve the rulemaking process so it can continue taking public comment and so the groups start communicating again.
“The time for such discussion is during the rulemaking process, and we will gladly engage and answer questions at that time,” Fitzmaurice said in a statement Wednesday. “The petitioners provided the PSC with extensive documentation of its legal authority and obligation to initiate rulemaking, as well as overwhelming scientific evidence of the climate crisis and the risks posed to utility customers should the PSC continue to ignore them.”
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