Montana Supreme Court Rules Department of Environmental Quality Failed to Protect Water Near Rosebud Coal Mine

In an important victory for clean water, the Montana Supreme Court ruled on November 22, 2023, that the Montana Department of Environmental Quality (DEQ) repeatedly ignored the law and failed to protect water quality from an expansion of the “Area B” permit area of the Rosebud coal strip mine near Colstrip, one of the largest coal strip mines in the nation. The court’s order vacated the mining permit, finding that Montana’s laws governing strip mining (the Montana Strip and Underground Mine Reclamation Act) prohibit DEQ from allowing strip mining if a company cannot assure that water resources will be protected.

The Western Environmental Law Center, Earthjustice, Roger Sullivan, Derf Johnson, and Walton Morris represented the Montana Environmental Information Center and Sierra Club in the case.

“All too often, the state agency that is charged with protecting water quality chooses to protect a mining company that has been polluting area waters for decades,” said Anne Hedges, director of policy for the Montana Environmental Information Center. “High levels of salts in water are harmful to agriculture and the environment. DEQ allowed a substantial increase in salt levels over an absurdly long length of time in a water body that is already overloaded with salts. This decision creates an opportunity to move in a new direction that protects water quality and everything that depends on clean water downstream of this mine. Now is the time to adjust course and put Montana waters first.”

The court found that DEQ and the Board of Environmental Review (BER) did not adequately consider the coal mine’s impact to water resources, including cumulative impacts from the mine and the length of time pollution would be allowed to occur. The court also found that the BER hearings examiner improperly refused to consider evidence presented by the conservation groups.

“Montanans from across the state see decision-makers at state agencies betray their trust and best interests so huge corporations can make an easy buck,” said Caryn Miske, chapter director of Montana Sierra Club. “Breaking the law is bad enough, but it stings even more knowing Montana’s most precious resources are being destroyed by this negligent and blatant disregard of the facts. The court made the right decision here, but the fight to stop a rogue DEQ is far from over.”

The Rosebud strip mine is Montana’s second largest coal mine by volume. It feeds coal directly to the Colstrip coal-fired power plant. The mine is polluting adjacent waters, including the East Fork of Armells Creek, which has become so contaminated that DEQ has deemed it impaired and in violation of water quality standards.

As noted by the court, since 2006, “DEQ has designated the stream as impaired and failing to achieve water quality standards for supporting growth and propagation of aquatic life.” DEQ must consider whether the cumulative hydrologic impacts will cause material damage to area waters. DEQ ignored this duty when it approved an expansion of the Rosebud strip mine that DEQ itself found would extend the creek’s impairment for “tens to hundreds of years.” The Supreme Court remanded the matter to DEQ to consider the cumulative impacts of the permit amendment on area waters including an analysis of prolonged pollution.

“The court’s well-reasoned decision concludes that DEQ’s excuses for failing to protect Montana’s water don’t, in fact, hold water,” said Shiloh Hernandez, an attorney with Earthjustice, the law firm that represents plaintiffs. “DEQ now has a second chance to follow the law. We intend to hold the agency to its legal duty.”

In another blow to the Rosebud mine, on Friday, November 24, 2023, the Ninth Circuit Court of Appeals dismissed an appeal by Westmoreland Rosebud Mining, LLC — operator of the mine — of another court order reversing approval of a separate mine expansion. In September 2022, a federal district court in Montana ruled that federal approval of the Area F expansion of the Rosebud Mine violated federal law by failing to lawfully disclose harmful impacts to water; impacts of massive water withdrawals from the Yellowstone River by the Colstrip Power Plant to burn coal from the mine; the impacts of tens of millions of tons of greenhouse gas emissions from coal combustion; and to consider a just transition alternative for the community. Westmoreland attempted to appeal the district court’s decision, but the Ninth Circuit rejected the appeal as premature. The court explained that if Westmoreland has any complaints it must present them to the federal agency (the U.S. Office of Surface Mining) during the remand process.