Yellowstone Skies Clear... For Now
Appeals court upholds citizens’ right to challenge power plant near park.
Yellowstone advocates can breathe a little easier thanks to a recent decision by a Washington, D.C., appeals court. This summer, judges sided with environmentalists concerned about the impact of a power plant to be constructed near Yellowstone, and it now appears as though the project will be delayed or put on hold completely. Although the ruling might be considered only one procedural decision in a larger case, it’s a significant result that establishes the public’s right to demand that the federal government abide by certain environmental provisions in the face of scientific evidence.
The story is a bit complicated, and like many legal thrillers, it may contain a few more unexpected turns, but here are the basics: In December 2002, scientists with the National Park Service (NPS) and U.S. Fish and Wildlife Service (USFWS) determined that a proposed power plant to be located 110 miles northeast of Yellowstone and 75 miles south of the Charles M. Russell National Wildlife Refuge would be a “significant contributor” to poor air quality and poor visibility, yielding negative impacts “severe in frequency and magnitude” in these areas. As “federal Class 1 areas,” each is protected by a 1977 amendment to the Clean Air Act, which anticipated the incentive for industry to relocate to cleaner areas in the wake of Environmental Protection Agency (EPA) efforts to improve conditions elsewhere. What’s more, the EPA’s own review of Roundup suggested that the two 390-megawatt pulverized coal-fired boilers would produce unduly high SO2 emissions as well. To mitigate these factors, Roundup would need to nix the project or introduce controls to limit emissions, a potentially expensive and time-consuming process.
In response, the company’s executives simply dismissed such proposed alterations, insisting that visibility would invariably be obscured on days when snow, rain, or fog limited natural visibility anyway. Shortly thereafter, Assistant Interior Secretary Craig Manson weighed in on Roundup’s side, asking the Montana Department of Environmental Quality to toss out the federal government’s own scientific findings and issue a ruling without considering the negative effects; Manson supplied no evidence in support of this dramatic turnaround. The legal question was clear: In cases concerning the protection of federal Class 1 areas, can federal officials simply ignore scientific data?
Roundup’s executives argued that the ultimate decision lay with the state of Montana, which was free to rule on its own, regardless of the findings presented by NPS and USFWS. But NPCA teamed with the Greater Yellowstone Coalition and The Wilderness Society to file suit, supporting the crucial input that these agencies provide, and insisting that their findings can’t merely be swept aside by the Bush Administration. After a legal briefing, the presiding judge dismissed the case, ruling that private citizens such as NPCA’s members had no standing in the matter. But in July, an appeals court reversed that decision, ruling that private citizens have every right to make their voices heard.
“The fundamental question raised in this appeal is whether Clean Air Act protections for our national parks have any teeth,” says Abby Dillen, a lawyer with Earthjustice, which represents NPCA in the case. “Citizens must be able to hold federal officials accountable when they let politics trump air quality in Yellowstone. This ruling from the appeals court is critical because it confirms that the courthouse doors are open to citizen enforcement suits.”
“The basic issue in this case is whether the National Park Service can maintain professional integrity and judgment in the face of political meddling,” says Tony Jewett, senior director of NPCA’s Northern Rockies Regional Office. “Given that the Park Service is charged with protecting our national parks for future generations, professionalism, science, and good judgment have to take precedence over politics.”
Of course, the case isn’t over. Roundup can still appeal the ruling, and even if the ruling stands, there’s a good chance the power plant might still be constructed. But for now, the legal complications seem to have slowed Round-up’s momentum, and the project has screeched to a halt. And that’s good news for the skies over Yellowstone, the plants and animals within its boundaries that call it home, and the millions of park visitors who travel hundreds, even thousands of miles to enjoy every bit of it.
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