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“Irretrievable and Irreversible”

UPDATE 05/15/2010: Yesterday, the Montana Environmental Information Center and the Sierra Club filed a second lawsuit protesting “potentially devastating consequences for the environment” not considered by the Land Board in making the decision to lease.

The groups said almost all the coal would go to power plants that would emit billions of tons of carbon dioxide, a greenhouse gas that contributes to global warming.

Governor Schweitzer doth protest that lawsuits at this point are “premature”. He says state officials have “in no way said they have passed all environmental muster.” Let’s wait and see. Maybe the prevailing winds will switch to the east.


On Wednesday, two environmental organizations, the Northern Plains Resource Council and the National Wildlife Federation filed suit in District Court to void the Otter Creek coal leases. The suit claims that granting the leases “constitutes an irretrievable and irreversible commitment of public resources that forecloses alternative uses of these lands.” They claim that the decision of the State Land Board to forego any environmental review prior to granting the lease to Arch Minerals violates the Montana Environmental Policy Act by failing to consider the environmental impacts of their decision and disclose those impacts to the public , “including the potentially devastating climate change impacts from adding billions of tons of carbon dioxide to the atmosphere from the combustion of this coal.

The lease is claimed to be illegal under the Montana State Constitution, including article IX, which guarantees “The State and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations…“.  MEPA is the principle tool by which these guarantees are enforced and it provides requirements for the disclosure of environmental impacts and ways for citizens to participate in the decision making. While holding the coal tracts for over a decade, the state has failed to perform a MEPA analysis on impacts of leasing.

The decision to approve the Otter Creek lease has environmental consequences, the full extent of which were not analyzed by the Board, and disclosed to the public before the decision to lease was made.

The suit goes on to list the many air, water, health, economic, wildlife and climate impacts of mining and burning the billion tons of Otter Creek coal, both in Montana and around the globe as well as the impacts of building the Tongue River Railroad.

No compelling state interest is served by exempting the Otter Creek lease decision from MEPA review before irreversibly committing the state to this course of action in March.

“Because the statute is unconstitutional, and because the Board made a decision in reliance on an unconstitutional statute and did not comply with MEPA, the Otter Creek leases were issued in violation of the Montana state constitution and statutory law and are therefore void ab initio and of no force and effect.”

Read the full complaint


7 Responses

  1. I am curious about how the Northern Cheyenne Tribe will be involved with the Tongue River Railroad and any coal development which may occur.

    Will another nearby coal mine lower unemployment on the reservation?

    Will Ashland, Birney, or Broadus see a boom effect for a period of time?

    • I don’t doubt that we will see a boom economy for a short period of time near the mine. The Tribe signed a settlement agreement when the Otter Creek coal was transferred to the state which gave them a share of the coal revenue and priority in hiring if they would not oppose development. The land was stolen from them by treaty more than a hundred years ago and they were evicted from the Otter Creek area. The Cheyenne also got priority in hiring for Colstrip, but that didn’t work out very well. If you want to know about how small towns will fare, look at Roundup with the reopening of the Signal Peak mine. They needed infrastructure money for the new mine folks, but the state didn’t want to give them any money until the royalties started flowing and they struggled. Most of the new jobs for Signal Peak, Colstrip and presumably for Otter Creek will go to emigrants who will stick around for the life of the mine (about 20 years), and then move on to the next boom. Ask Wyoming.

      The Cheyenne depend on the Tongue River for much of their water. That water has been going downhill for a long time due to coal development in Wyoming. Otter Creek mining and the railroad will only make it worse. Yes, there will be an infusion of money for a few years, but then Montana will be left with dirty air, dirty water, health problems, more poverty and a gigantic mess to clean up.

      • 2nd that – Arch Coal just announced its project lead for their Otter Creek project, and he’s coming up from Wyoming.

      • Wyoming, hmmm… I’ve heard they have coal down there too. He probably just wants to be up here to welcome the railroad.

  2. Guess the Governor doesn’t understand the basic fact that he and McCulloch aind Lindeen took a state action without even considering the environmental effects.

    It’s not like they’re part of some private real estate company…but I’m thinking he doesn’t understand that either.

    • It will be interesting to see how this plays out in the courts. Apparently the Guv is claiming that MEPA doesn’t apply until after the state gets its upfront money and a specific mining plan is proposed. There is only one use for coal, and that is to burn it and we know how that process impacts health and the environment. The governor seems to be claiming that there is a chance the company may come up with a clean way to use a billion tons of coal, so we should not prejudge the plan. Maybe we can just make lots and lots of dandruff shampoo… Oh, sorry, coal tar is a combustion byproduct. Crazy I know, but I suspect that Montana courts will agree, at least partially, with the Coal Cowboy.

      • What’s likely being banked upon is that the state doesn’t look at “connected actions” like NEPA is required to do.

        Same as ignoring the railroad, that is clearly part of the package. Intrinsically connected to the coal lease, yet ignored in the process.

        The state and its legislators have steadily attacked MEPA to try and keep it from functioning as a decision document.

        That’s utterly ridiculous to me, given the words ..”shall maintain and improve a clean and healthful environment..”

        “Shall” as any lawyer knows, is a damned precise word. There is no wiggle room.

        It’s one of the words that rarely survives a committee session, favored far less than the word “may” which has all the effect of a wet dishrag.

        Dislaimer: I used the term “legislators” pretty broadly. I don’t mean 100% of them, to be clear.

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