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Coalition Sues State For Coal Mining Laws

A coalition of Montana groups have filed a lawsuit in federal court arguing that newly passed laws that lawmakers say will speed up permitting of surface coal mines would have made the Copper Kings of Montana proud by gutting protections for the citizens and clean water.

The Montana Environmental Information Center, Sierra Club, Wildearth Guardians and Citizens for Clean Energy filed the suit in U.S. District Court in Great Falls on Thursday, June 1, challenging House Bill 576 and Senate Bill 392 – saying they were proposed by coal mining interests and meant to squelch public oversight.

House Bill 576, which was sponsored by Rep. Rhonda Knudsen, R-Culbertson, would make two significant changes to coal mining laws, which include allowing the state Department of Environmental Quality to issue permits without having complete information about how the coal operation may affect ground or surface water. It would also allow coal mining operations to violate water quality standards if there was no long-term impacts or if excessive pollution was for a limited time.

Senate Bill 392, which was sponsored by Senate Majority Leader Steve Fitzpatrick, R-Great Falls, changes the law to allow the government or coal mining companies to be awarded attorney’s fees from residents or groups that challenge the coal mining laws, even if those groups bring a good-faith claim that is nonetheless defeated in court action.

SB 392 also allows the state and coal mining interests to apply the law retroactively, meaning that it would apply to any lawsuit currently filed.

Both of the laws were passed with an immediate effective date, meaning they both became law as soon as Republican Gov. Greg Gianforte signed the measures.

The groups, through their attorneys, argue that both bills violate federal law, must be enjoined and eventually struck down.

In court documents, attorneys said that any new mining laws passed by state legislatures must be reviewed by federal agencies, including the U.S. Office of Surface Mining Reclamation and Enforcement as well as the Environmental Protection Agency in order to assure that they are “no less stringent or effective than provisions of federal law.”

However, because the laws went into effect without the review and approval, they must be declared invalid until the agency makes a determination. The groups said it’s likely the federal government will not approve the new laws because they are less stringent and contradict federal mining laws.

“House Bill 576 permits strip- and underground coal mines to violate water quality standards, so long as the violations are not perpetual or long term,” the suit said. “In contravention of the Surface Mining act, HB 576 simply deletes the prohibition on DEQ’s approval of a coal mining permit before information about the hydrology of the area is available.”

The groups also urged federal court Judge Brian Morris to act quickly on reviewing the case.

“Plaintiffs are currently considering challenging unlawful coal permitting decisions by (the Department of Environmental Quality), including at the Rosebud and Bull Mountain coal mines. Some of these permitting decisions are subject to 30day statutes of limitations,” the suit said. “The immediate effectiveness provision of the ‘loser pays’ provision of Senate Bill 392 immediately chills plaintiffs’ ability to challenge these permitting decisions.”

In the lawsuit, the coalition says that SB 392 turns the current law on its head. They argue that current federal and state law is “asymmetrical,” allowing citizens who sue the government successfully to be awarded legal fees. However, law does not allow the government to seek the same because federal lawmakers said that citizens play a crucial role in the permitting and input process, and may be the only parties willing to file a lawsuit. Still, they said that citizens or even groups may have difficulty raising enough money to hire attorneys, so successfully suing must hold out the promise of recouping legal expenses.

SB 392 allows the government or coal mines to seek fees from residents or groups even if they mount an unsuccessful challenge. This provision — and the risk of losing thousands and, in some cases, even more — the groups argue will force individuals to stay on the sidelines, creating a “chilling effect.” In other words, residents will be too frightened of losing that they won’t challenge the laws or permits.

“The sponsor of Senate Bill 392 stated that the purpose of the bill was to deter the public from challenging coal mining operations,” the lawsuit said.

“It’s like the bad old days under the Anaconda Company. The Montana Legislature caved to coal industry lobbyists and effectively let them rewrite the law to weaken environmental protection and public involvement,” said Shiloh Hernandez, senior attorney for Earthjustice’s Northern Rockies Office. “Thankfully, federal law prevents this sort of brazen attack on our communities and environment. Once these laws are properly scrutinized, we expect them to be thrown into the dustbin.”

The Montana Attorney General’s Office did not respond to requests for comment. That office under Montana Attorney General Austin Knudsen will defend the laws in federal court. Knudsen’s mother, Rep. Rhonda Knudsen, was the sponsor of House Bill 576.

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