Opinion
DA 23-0479
05-14-2024
COTTONWOOD ENVIRONMENTAL LAW CENTER, Plaintiff and Appellant, v. MONTANA DEPARTMENT OF ENVIRONMENTAL QUALITY, Defendant and Appellee, and YELLOWSTONE MOUNTAIN CLUB, Defendant-Intervenor and Appellee.
For Appellant: John Meyer, Cottonwood Environmental Law Center, Bozeman, Montana For Appellee Department of Environmental Quality: Kurt R. Moser Kirsten H. Bowers, Department of Environmental Quality, Helena, Montana For Appellee Yellowstone Mountain Club: Ian McIntosh, Neil G. Westesen, Crowley Fleck, PLLP, Bozeman, Montana
Submitted on Briefs: March 27, 2024
Appeal from: District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DV-21-833D Honorable Andrew J. Breuner, Presiding Judge
For Appellant: John Meyer, Cottonwood Environmental Law Center, Bozeman, Montana
For Appellee Department of Environmental Quality: Kurt R. Moser Kirsten H. Bowers, Department of Environmental Quality, Helena, Montana
For Appellee Yellowstone Mountain Club: Ian McIntosh, Neil G. Westesen, Crowley Fleck, PLLP, Bozeman, Montana
OPINION
MIKE MCGRATH JUDGE
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.
¶2 Cottonwood Environmental Law Center (Cottonwood) appeals an adverse ruling from the Eighteenth Judicial District Court, Gallatin County. We affirm.
¶3 Cottonwood's claims involve DEQ's decision to grant the Yellowstone Mountain Club (YC) a Montana Pollution Discharge Elimination System (MPDES) permit for YC's proposed "water reuse" snowmaking project (Snowmaking Project), which will repurpose treated wastewater for YC's snowmaking operations.
Background
¶4 In April 2020, YC submitted a formal application to DEQ for an MPDES permit "to authorize the discharge of reclaimed (or treated) domestic wastewater after its use as artificial snow for skiing on Eglise Mountain."
¶5 Following a review of YC's application, DEQ publicly noticed a draft MPDES permit, a permit fact sheet, and a Draft Environmental Assessment.
¶6 The draft MPDES permit authorized YC to use roughly 25 million gallons of treated sewage wastewater over 45 days of each ski season for a period of five years. The water would first be treated at Big Sky Water and Sewer District and/or YC's treatment facility before being pumped to snowmaking equipment on Eglise Mountain.
¶7 On May 4, 2021, Cottonwood submitted public comment on the Draft Environmental Assessment, alleging "The EA violates [the Montana Environmental Protection Act] because it fails to analyze the impacts of pharmaceuticals reaching surface waters" as a result of snowmelt runoff.
¶8 On June 7, 2021, DEQ issued the Final Environmental Assessment (EA) and its final permitting decision, providing:
The MPDES permit includes effluent limits, monitoring requirements, and other permit conditions that will ensure the water quality standards and beneficial uses are protected. Further, DEQ found that both Third Yellow Mule Creek and Muddy Creek are high quality waters per Montana's Nondegradation Policy. The proposed discharges were evaluated to ensure the changes in water quality would be nonsignificant.
¶9 Finding that the Snowmaking Project did not pose "significant adverse impacts to the physical or human environment," DEQ determined that an Environmental Impact Statement (EIS) was unwarranted.
¶10 In response to Cottonwood's public comment, the EA provided:
"Pharmaceuticals" is a general term. Pharmaceuticals are an emerging area of science and research concerning water quality. DEQ has not yet adopted water quality standards for pharmaceuticals. MPDES permits implement adopted MT water quality standards to protect the beneficial uses of the receiving water bodies.
¶11 On August 5, 2021, Cottonwood filed a complaint against DEQ in District Court, seeking an injunction of the Snowmaking Project and declaratory judgment that DEQ's permitting decision violated Article II, Section 3, and Article IX, Section 1, of the Montana Constitution ("clean and healthful" provisions) and the Montana Environmental Protection Act (MEPA).
¶12 During discovery, DEQ admitted that, in Mont. Rivers v. Mont. Dept. of Env't Quality, No. DV-20-200A (Mont. Eighteenth Judicial Dist. filed February 2020), it defined the term "pharmaceuticals" as "a diverse group of chemicals including all human veterinary drugs, dietary supplements, topical agents such as cosmetics and sunscreens, laundry and cleaning products."
¶13 On October 14, 2022, Cottonwood moved to supplement the record with the administrative record from Mont. Rivers. Cottonwood argued that the administrative record from Mont. Rivers should have been admitted below because it contained "several scientific articles, reports, power points, and other documents created by the [DEQ] and U.S. Environmental Protection Agency (EPA) regarding the environmental impacts of pharmaceutical pollution that were not analyzed or disclosed as part of the [MEPA] analysis in this case."
Following an adverse district court ruling, Cottonwood, et al. appealed Mont. Rivers to this Court. Mont. Rivers v. Mont. Dep't of Env't Quality 2022 MT 132, 409 Mont. 204, 512 P.3d 1193 (Mont. Rivers II). We affirmed, ruling that DEQ was not required to proceed with a rulemaking that it had initiated and subsequently abandoned. Mont. Rivers II, ¶ 19.
¶14 On December 28, 2022, the District Court dismissed Cottonwood's constitutional challenges, ruling that the Montana Constitution's "clean and healthful" provisions are not self-executing and may not provide a cause of action standing alone. The District Court further ruled that MEPA provides sufficient remedies for Cottonwood's allegation that DEQ violated the Montana Constitution by failing to take a "hard look" at the potential impacts of pharmaceutical pollution in YC's MPDES permit.
¶15 The same day, the District Court denied Cottonwood's motion to supplement the administrative record, finding that Cottonwood failed to show that DEQ "should have considered" the documents from the Mont. Rivers administrative record, "but did not."
¶16 On June 30, 2023, the District Court granted DEQ summary judgment on Cottonwood's MEPA claims.
¶17 On July 7, 2023, the District Court entered a final judgment denying Cottonwood declaratory judgment and injunctive relief, and adopting its December 28, 2022 and June 30, 2023 orders.
¶18 Cottonwood appeals the District Court's orders granting summary judgment to DEQ on Cottonwood's MEPA claims and denying Cottonwood's motion to supplement the record.
¶19 We review summary judgment decisions and related conclusions of law de novo. Bitterrooters for Planning, Inc. v. Mont. Dep't of Env't Quality, 2017 MT 222, ¶ 15, 388 Mont. 453, 401 P.3d 712.
Extra-record Evidence
¶20 Cottonwood first argues that the District Court erred by denying its motion to supplement the record with evidence suggesting that DEQ was aware of the environmental harm pharmaceuticals pose when it declined to analyze them in an EIS.
¶21 Judicial review of an agency decision it limited to what was "on the record before the governing body at the time of its decision." Belk v. Mont. Dep't of Env't. Quality, 2022 MT 38, ¶ 33, 408 Mont. 1, 504 P.3d 1090 (citing Heffernan v. Missoula City Council, 2011 MT 91, ¶ 66, 360 Mont. 207, 255 P.3d 80). A court may admit extra-record evidence if, without it, it would be "impossible for the court to determine whether the agency took into consideration all relevant factors in reaching its decision." Skyline Sportsmen's Assn. v. Bd. of Land Commrs., 286 Mont. 108, 113, 951 P.2d 29, 32 (1997) (citations omitted). Extra-record evidence may be admitted when there is a showing that "the proffered information is new, material, and significant evidence that was not publicly available before the agency's decision and that is relevant to the decision or to the adequacy of the agency's environmental review ...." Section 75-1-201(6)(b)(ii), MCA. To meet this burden, a plaintiff must demonstrate that the agency should have considered the evidence but did not. Belk, ¶ 36.
¶22 Cottonwood seeks the admission of DEQ and EPA documents that describe certain pharmaceuticals-namely, endocrine disruptors-as an emerging area of environmental concern. We agree with the District Court that this information was not new and that it was publicly available at the time that Cottonwood filed this action. Indeed, Cottonwood was aware of the documents, as they were central to the Mont. Rivers litigation.
¶23 More significantly, however, Cottonwood has failed to show that DEQ should have considered this material in its environmental analysis but did not. Belk, ¶ 36. Both documents describe pharmaceuticals as an "emerging" environmental issue. Neither document indicates there is consensus-let alone guidance-about how pharmaceuticals should be monitored and regulated by state or federal agencies. DEQ's response to Cottonwood's public comment reflects that the agency considered those factors when it determined YC's Snowmaking Project does not pose significant environmental impacts under MEPA.
¶24 The District Court did not err when it determined Cottonwood did not satisfy the requirements for the admission of extra-record evidence under § 75-1-201(6)(b)(ii), MCA.
MEPA
¶25 Cottonwood further argues that DEQ violated MEPA by failing to perform an EIS, even though DEQ possessed evidence that pharmaceuticals harm the environment.
¶26 DEQ counters that it acted within its lawful discretion when it determined that an EA provided sufficient analysis of "pharmaceuticals" because it is a general term, and there is no scientific consensus around their impact. DEQ asserts that the effluent limitations and permit conditions in the MPDES permit will "ensure water quality, aquatic life, and human health, would be protected."
¶27 When reviewing the sufficiency of an agency's environmental review under MEPA, we ask whether the challenged decision was unlawful or arbitrary and capricious. Section 75-1-201(6)(a)(iv), MCA; Mont. Wildlife Fed'n v. Mont. Bd. of Oil &Gas Conservation, 2012 MT 128, ¶ 25, 365 Mont. 232, 280 P.3d 877. "An agency decision is arbitrary and capricious if made without consideration of all relevant factors or based on a clearly erroneous judgment." Bitterrooters, ¶ 16 (citing Clark Fork Coal. v. Mont. Dep't of Env't Quality, 2008 MT 407, ¶ 20, 347 Mont. 197, 197 P.3d 482).
¶28 MEPA obligates agencies to take a "hard look" at the environmental impacts of its decisions by "fulfilling its obligation to make an adequate compilation of relevant information, to analyze it reasonably, and to consider all pertinent data." Park Cnty. Env't Council v. Mont. Dep't of Env't Quality, 2020 MT 303, ¶ 18, 401 Mont. 168, 477 P.3d 288 (internal quotation omitted).
¶29 "The aim of DEQ's assessment in an EA is to evaluate the individual and cumulative impacts of a proposed action and determine their significance ...." Belk, ¶ 30. An EIS is not required if an EA establishes that an "agency action will not significantly affect the quality of the human environment." Bitterrooters, ¶ 20. Among the criteria that DEQ must address in making that determination are the "severity, duration, geographic extent, and frequency of occurrence of the impact." Admin. R. M. 17.4.608 (1989).
¶30 Mindful of the Legislature's obligations under the clean and healthful provisions of the Montana Constitution, DEQ is charged with administering the Montana Water Quality Act (MWQA). Section 75-5-211, MCA. Broadly, there are two ways DEQ carries out that task: by formulating and adopting water quality standards, § 75-5-301, MCA, and by administering the pollutant discharge permitting system, § 75-5-401, MCA. Prior to issuing an MPDES permit under the MWQA, DEQ must therefore ensure a proposed discharge conforms to MEPA by preparing an EA or EIS. Admin. R. M. 17.4.608 (1989).
¶31 While DEQ concedes that "pharmaceuticals are emerging contaminants of concern that may threaten aquatic life," it notes that Cottonwood's public comment did not reference a particular pharmaceutical of concern or provide information suggesting further analysis was required. In responding to Cottonwood, DEQ reasoned that "pharmaceuticals" is a general term and water quality standards do not exist for them at the federal or state level. Further, in analyzing whether there is "potential for violation of ambient water quality standards, drinking water maximum contaminant levels, or degradation of water quality," the EA provided that the "MPDES permit includes effluent limitations, monitoring requirements, and other permit conditions that will ensure the water quality standards and beneficial uses are protected." The EA also established that the proposed discharges to the high quality waters of Third Yellow Mule Creek and Muddy Creek were "evaluated to ensure the changes in water quality would be nonsignificant."
¶32 We do not accept DEQ's argument that it satisfied its MEPA obligations simply because water quality standards have not been established for "pharmaceuticals." We agree, however, that Cottonwood's claim lacks any specificity that would obligate DEQ to respond more comprehensively than it did.
¶33 On the record before us, we are not convinced that DEQ failed to consider all of the relevant factors or that it based its decision on clearly erroneous judgment. Bitterrooters, ¶ 16.
¶34 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. In the opinion of the Court, the case presents a question controlled by settled law or by the clear application of applicable standards of review.
¶35 Affirmed.
We Concur: JAMES JEREMIAH SHEA, INGRID GUSTAFSON, DIRK M. SANDEFUR, JIM RICE