Montana: State, owners seek to block power plant suit

By JENNIFER McKEE Missoulian State Bureau

11/8/02

HELENA, MT.- A proposed power plant in Butte isn't the environmental polluter its opponents claim, a judge heard Thursday.

The plant's owners and state regulators want a Helena judge to throw out the suit filed by the Montana Environmental Information Center.

The center claims the plant would violate Montanans' right to a clean environment.

Both sides squared off in court before District Judge Jeffrey Sherlock.

"This will cause total chaos," said Stephen Foster, a Billings lawyer representing Continental Energy Services Inc., which had hoped to break ground on its natural gas-burning, 500-megawatt power plant this fall. "This will stop economic development in this state in its tracks."

Jennifer Hendricks, a lawyer for the environmental group, said such an argument is an exaggeration.

At issue is an article in the state's constitution that guarantees Montanans a right to a "clean and healthful environment."

MEIC argued that the state's Department of Environmental Quality and Continental Energy violate that right with a proposed power plant that will produce hundreds of tons of greenhouse effect-causing pollution each year. What's more, said Jim Jensen, director of the organization, the power plant will employ 10 people or less and is being built to provide power to the West Coast.

But, said Kyle Gray, a second lawyer for Continental, it's also about who decides what is a "compelling state interest," and how that discussion can be handled in an orderly way. In this case, Gray said, Continental officials did everything right. They got all the permits they needed from the state in accordance with state law. Despite all that, MEIC sued, she said, alleging not that the company broke the law or even that the state laws don't support the constitution, but that the very act of polluting must be supported by showing "a compelling state interest."

"This is simply unworkable," she said. "Then what's to stop a neighbor from suing another neighbor for driving a gas-guzzling SUV?"

If MEIC has a problem with the state's environmental laws, it should challenge those laws. But to challenge the very act of polluting means that every kind of pollution must now be justified, she said, like burning leaves.