Court sides with Montana PSC in climate petition challenge

HELENA — A Missoula judge has ruled against environmental groups and other advocates who wanted to force the Montana Public Utilities Commission to make a faster decision on whether to consider climate change in its regulatory decisions.

The decision is the latest step in a process that began in February, when 42 petitioners asked the PSC to create a rule to apply a “social cost” of greenhouse gas emissions when reviewing electric and gas utility rates, resource planning and other decisions. District Judge Leslie Halligan denied a motion asking her to order the commission to immediately dismiss the petition or continue with the formal rulemaking process.

Petitioners seeking climate regulation include groups like the Montana Environmental Information Center and Families for a Livable Climate, as well as businesses like Bridger Bowl Ski Area. Their request follows last year’s decision in Held v. Montana, in which a judge sided with young plaintiffs who argued that the state has a responsibility to address climate change as part of the Montana Constitution’s commitment to a clean and healthy environment.

In April, the commission held a public meeting in Helena, where it heard hours of testimony from supporters and opponents of the rule. Later that month, it voted to extend the public comment period. The PSC has yet to make a formal decision on the petition.

Jonathan Ambarian

11 of the petitioning organizations petitioned the court, arguing that the Montana Administrative Procedure Act, or MAPA, requires an agency to formally deny a petition or initiate the rulemaking process within 60 days.

“The Commission has deprived the petitioners of their right to obtain a decision on a petition that is of great urgency and importance to them,” they wrote in a court filing.

The PSC defended its actions, saying the informal processes followed met MAPA requirements.

“The applicants’ insistence that the Commission always begin with formal notices of proposed rulemaking and without first consulting with interested parties pursuant to MCA § 2-4-304 would lead to rulemaking processes that are both less thoughtful and more confusing and complicated,” they said in a filing.

Halligan ruled Wednesday that state law allows the commission to initiate an informal process within 60 days and still be within the MAPA requirements. She said it would not be appropriate for the court to decide which option the PSC uses when considering a petition.

“As a matter of public policy, the Commission’s efforts to consider broad public interests and to allow for broad public participation in implementing such a broad proposed rule are consistent with the spirit of MAPA,” she wrote.

However, Halligan also wrote that the PSC “seems more readily able to recognize” that these actions were part of an informal rule-making process after the lawsuit was filed.

“Had the Commission provided this level of clarity from the outset, much of this miscommunication could have been avoided,” she wrote.

David Sanders, executive director of the PSC, told MTN that the agency was pleased that the court had upheld the informal process it uses. He added that it was still reviewing the five volumes of public comments it received on the petition.