Montana

MT Supreme Court upholds decision to lease Otter Creek coal

Posted: Oct 23, 2012 5:34 PM by Q2 News

The state Supreme Court affirms a State Land Board decision of 2010 to issue leases for state lands located in the Otter Creek drainage and are leased to Ark Land Co., a subsidiary of Arch Coal, Inc.
A number of groups, including the Northern Plains Resource Council, the National Wildlife Federation, the Montana Environmental Information Center and the Sierra Club, had filed the appeal with the state's highest court, contending that the Land Board should have first conducted an environmental review under the Montana Environmental Policy Act. These groups contended that the leases were unconstitutional because they violated the Montana Constitution's guarantee of a right to a clean and healthful environment.

"This is just one step in a long process, but we're going to fight this to the end," said Walter Archer, a Powder River rancher, who spoke on behalf of the four groups. "We are heartened that the Supreme Court agreed with some of our concerns regarding the burning of coal and its effects on Montana's air, water, and agriculture. But if the state agencies do the job they committed to during this lawsuit, then they will not approve Arch Coal's mining permit, because the social, economic, and environmental impacts of mining and burning this much coal are simply too devastating.

However, in an opinion written by Chief Justice Mike McGrath, Montana's Supreme Court unanimously upheld a prior district court decision that the law exempting the Land Board from requiring an environmental review at the time a lease was approved, was constitutional, provided the lease was subject to permitting requirements later in the process.

"Because the leases themselves do not allow for any degradation of the environment, conferring only the exclusive right to apply for State permits, and because they specifically require full environmental review and full compliance with applicable State environmental laws, the act of issuing the leases did not impact or implicate the right to a clean and healthful environment in Article II, Section 3 of the Montana Constitution," McGrath wrote.

The court concluded that the leases granted by the Land Board simply gave the prospective operator "the opportunity to begin to prepare a complete application for a mining permit" and that any necessary environmental review and protections could be put into place at a later permitting stage, "all before any prospecting or actual development begins."