State NEPA Reform in Montana
We are the knights who say MEPA
The text of Senator Zolnikov’s LC3109 dropped earlier this week. The bill focuses on reducing MEPA’s litigation burden by removing incentives to sue and limiting opportunities for multiple rounds of litigation.
If this were any other year, LC3109 would be the permitting reform story for the next few months — but with CEQ authority gone and reconciliation upon us, the bill will mostly fly under the radar.
First, a quick summary of the situation in Montana from an earlier Green Tape post:
Montana has been feeling the pain of permitting—and in particular their state NEPA, “MEPA”—for a very long time. The Black Butte Copper Mine spent nearly 14 years fighting through the permitting process, only securing its final permit in February 2024 after a contentious Supreme Court battle. The Coyote Wind Project, which would have powered over 27,500 homes, was abandoned after MEPA litigation delays made the project unfeasible. These aren't isolated incidents – Montana's environmental review process has become a reliable tool for project opponents to create delays and uncertainty that can kill even the most environmentally conscious developments.
Montana's MEPA problems are driven by two key forces: a line in the state constitution that guarantees Montanans a "right to a clean and healthful environment," and a left-leaning Montana Supreme Court that has interpreted that line exceptionally broadly, striking down the legislature's efforts at MEPA reform on more than one occasion. In Lucky Minerals, the court declared unconstitutional a 2011 MEPA amendment that would have prevented courts from voiding or suspending permits after they had been issued. This year, the Held v. Montana decision blocked several legislative reforms that would have limited the scope of MEPA reviews.
All of this means that MEPA reform is both a) pressing and b) must be narrowly tailored to avoid running up against the state constitution. In my opinion, workable reforms in Montana fall into two main categories:
Categorical Exclusions: MEPA needs a clearer framework for allowing agencies to identify and exempt certain routine actions from full environmental review when they demonstrably lack significant impacts. This would codify existing administrative practices and mirror the successful federal NEPA provisions.
Judicial Review: MEPA could be drastically improved by targeted reforms that streamline post-decision proceedings. This could include specific timelines for agency responses to court remands, requirements to raise new issues rather than re-litigate settled ones, and measured adjustments to litigation procedures that would maintain access to courts while discouraging duplicative challenges. All reforms would have to be carefully tailored to avoid running afoul of Montana’s constitution.
HB466, which was also introduced last week, targets categorical exclusions. LC3109, meanwhile, is all about judicial review.
The bill makes three major changes to how MEPA challenges work:
First, it puts strict timelines on agency responses to court remands. Agencies get 90 days to complete any required environmental reviews and issue a new decision, with extensions only available if all parties agree or if the agency can prove "extraordinary circumstances" to the court (and even then, only for 60 more days). This directly addresses one of the key sources of delay in MEPA litigation — the time between when a court finds a problem and when the agency fixes it.
Second, it limits what can be challenged after a remand. Plaintiffs can only raise issues that are "materially different" from their prior challenges or that couldn't have been raised earlier with reasonable diligence. This prevents the "whack-a-mole" problem where challengers bring successive cases targeting different aspects of the same project, while preserving the ability to challenge genuinely new issues.
Third, it expands and clarifies two key litigation provisions: the prohibition on recovering attorney fees and the requirement that challengers pay the costs of preparing the administrative record. Importantly, these provisions now apply to all challenges brought under MEPA, not just those alleging noncompliance.
The practical impact of these changes could be substantial. In complex, high-profile projects like Black Butte Copper Mine, where litigation often proceeds through multiple rounds of challenges, the combination of these provisions — especially the 90-day remand deadline and limits on subsequent challenges — could trim months or even years off the total litigation timeline. The provisions create a more linear process, making it harder for opponents to wage war through successive rounds of litigation.
As far as I can tell, LC3109 has been carefully crafted to avoid the constitutional issues that have thwarted prior MEPA reform efforts. Rather than limiting what remedies are available, for example, the bill focuses on making the challenge process more reasonable and efficient.
We'll have to see whether the Montana Supreme Court agrees. A reasonable working assumption is that this law will be challenged by environmental groups in court. But my view is that if this bill is struck down, there is effectively no MEPA reform that the current court will accept. This, in turn, would mean that the court would be ruling that a fundamentally procedural law cannot be reformed without abridging Montanans' right to “a clean and healthful environment.” This would be a disastrous decision.
Either way, this is a big deal. Here on Green Tape, we’ll track and share updates as the bill progresses.