2001 Montana Legislature

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SENATE BILL NO. 33

INTRODUCED BY B. MCCARTHY, C. YOUNKIN, J. TESTER, K. GILLAN, W. CRISMORE

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AN ACT CLARIFYING EXISTING LAW TO REQUIRE THAT NEW ISSUES RELATING TO THE ADEQUACY OR CONTENT OF AN ENVIRONMENTAL REVIEW DOCUMENT NOT FIRST PRESENTED TO A STATE AGENCY IN AN ACTION CHALLENGING A DECISION UNDER THE MONTANA ENVIRONMENTAL POLICY ACT MUST BE REMANDED BY THE DISTRICT COURT TO THE AGENCY FOR ITS CONSIDERATION; AND AMENDING SECTION 75-1-201, MCA.



BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:



     Section 1.  Section 75-1-201, MCA, is amended to read:

     "75-1-201.  General directions -- environmental impact statements. (1) The legislature authorizes and directs that, to the fullest extent possible:

     (a)  the policies, regulations, and laws of the state must be interpreted and administered in accordance with the policies set forth in parts 1 through 3;

     (b)  all agencies of the state, except the legislature and except as provided in subsection (2), shall:

     (i)  use a systematic, interdisciplinary approach that will ensure the integrated use of the natural and social sciences and the environmental design arts in planning and in decisionmaking that may have an impact on the human environment;

     (ii) identify and develop methods and procedures that will ensure that presently unquantified environmental amenities and values may be given appropriate consideration in decisionmaking, along with economic and technical considerations;

     (iii) identify and develop methods and procedures that will ensure that state government actions that may impact the human environment are evaluated for regulatory restrictions on private property, as provided in subsection (1)(b)(iv)(D);

     (iv) include in each recommendation or report on proposals for projects, programs, and other major actions of state government significantly affecting the quality of the human environment a detailed statement on:

     (A)  the environmental impact of the proposed action;

     (B)  any adverse environmental effects that cannot be avoided if the proposal is implemented;

     (C)  alternatives to the proposed action;

     (D)  any regulatory impacts on private property rights, including whether alternatives that reduce, minimize, or eliminate the regulation of private property rights have been analyzed. The analysis in this subsection (1)(b)(iv)(D) need not be prepared if the proposed action does not involve the regulation of private property.

     (E)  the relationship between local short-term uses of the human environment and the maintenance and enhancement of long-term productivity; and

     (F)  any irreversible and irretrievable commitments of resources that would be involved in the proposed action if it is implemented;

     (v)  study, develop, and describe appropriate alternatives to recommend courses of action in any proposal that involves unresolved conflicts concerning alternative uses of available resources;

     (vi) recognize the national and long-range character of environmental problems and, when consistent with the policies of the state, lend appropriate support to initiatives, resolutions, and programs designed to maximize national cooperation in anticipating and preventing a decline in the quality of the world environment;

     (vii) make available to counties, municipalities, institutions, and individuals advice and information useful in restoring, maintaining, and enhancing the quality of the environment;

     (viii) initiate and use ecological information in the planning and development of resource-oriented projects; and

     (ix) assist the environmental quality council established by 5-16-101;

     (c)  prior to making any detailed statement as provided in subsection (1)(b)(iv), the responsible state official shall consult with and obtain the comments of any state agency that has jurisdiction by law or special expertise with respect to any environmental impact involved. The responsible state official shall also consult with and obtain comments from any state agency with respect to any regulation of private property involved. Copies of the statement and the comments and views of the appropriate state, federal, and local agencies that are authorized to develop and enforce environmental standards must be made available to the governor, the environmental quality council, and the public and must accompany the proposal through the existing agency review processes.

     (d)  a transfer of an ownership interest in a lease, permit, license, certificate, or other entitlement for use or permission to act by an agency, either singly or in combination with other state agencies, does not trigger review under subsection (1)(b)(iv) if there is not a material change in terms or conditions of the entitlement or unless otherwise provided by law.

     (2)  The department of public service regulation, in the exercise of its regulatory authority over rates and charges of railroads, motor carriers, and public utilities, is exempt from the provisions of parts 1 through 3.

     (3)  (a) In any action challenging or seeking review of an agency's decision that a statement pursuant to subsection (1)(b)(iv) is not required or that the statement is inadequate, the burden of proof is on the person challenging the decision. Except as provided in subsection (3)(b), in a challenge to the adequacy of a statement, a court may not consider any issue relating to the adequacy or content of the agency's environmental review document or evidence that was not first presented to the agency for the agency's consideration prior to the agency's decision. A court may not set aside the agency's decision unless it finds that there is clear and convincing evidence that the decision was arbitrary or capricious or not in compliance with law.

     (b)  When new, material, and significant evidence is or issues relating to the adequacy or content of the agency's environmental review document are presented to the district court that had not previously been presented to the agency for its consideration, the district court shall remand the new evidence or issue relating to the adequacy or content of the agency's environmental review document back to the agency for the agency's consideration and an opportunity to modify its findings of fact and administrative decision before the district court considers the evidence or issue relating to the adequacy or content of the agency's environmental review document within the administrative record under review. Immaterial or insignificant evidence or issues relating to the adequacy or content of the agency's environmental review document may not be remanded to the agency. The district court shall review the agency's findings and decision to determine whether they are supported by substantial, credible evidence within the administrative record under review."

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