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WASHINGTON — Yellowstone National Park might be America’s best-known and most-treasured natural space, visited by millions of tourists each year. One hundred miles from the park lies Roundup, a small mining town in south central Montana desperate for new jobs. Within the next year, a group of investors wants to begin building a massive coal-powered electricity-generating plant next to the underground coal mine near Roundup. For much of the region, the project is a welcome one. But for national environmental groups seeking to keep the air in Yellowstone pristine and the sky clear, the plant is a threat — and they’re asking federal judges in Washington, D.C., to intervene. It’s the classic conflict between environmental protection and economic development, but with some twists: A top official in the Department of the Interior, the federal agency charged with safeguarding national parks, has sided with the company that wants to build the plant — over the recommendations of department scientists. And the environmental groups seeking to protect Yellowstone may never get their day in court. The $1 billion Bull Mountain power plant would be part of a planned complex that would include electrical transmission lines, a 35-mile railroad spur, and the existing mine in Montana’s Musselshell County, 16 miles south of Roundup, and would be the largest new industrial project in Montana in the past 20 years. For citizens of Musselshell County, where the population has fallen from a peak of more than 12,000 in the 1920s to about 4,500 today and where the largest employer is the school district, the 150 jobs that the power plant promises are enticing. “Montana needs industry. The majority in the state wants to see this project go,” says Larry Lekse, a Musselshell County commissioner. But along with the jobs it would bring, the coal-fired plant would discharge into the air mercury and a cocktail of greenhouse gases, including sulfur dioxide, nitrogen oxide and carbon dioxide. Environmentalists and federal scientists who have studied the region say that the plant, as it is planned now, would emit air pollution that would reduce visibility in Yellowstone and the 20,000 acres of federal wilderness area nearby. They complain that the federal government isn’t forcing the proposed plant’s owners to live up to the standards of the federal Clean Air Act. “Industry loves to frame this as a jobs-versus-environment question,” says Abigail Dillen, a Bozeman, Mont., lawyer who represents an environmental group challenging what it says is the failure of U.S. Interior Department officials to comply with the act’s procedures in a review of the proposed plant at Bull Mountain. “It doesn’t have to be that way.” COURTING WASHINGTON At the heart of a suit argued last month in the D.C. Circuit U.S. Court of Appeals is an about-face by a political appointee in the Department of the Interior. The National Parks Conservation Association wants the court to force the department to reverse its determination that the Bull Mountain power plant won’t emit significant air pollution. The association has asked D.C. Circuit Judges David Sentelle, A. Raymond Randolph and Merrick Garland to grant it standing to sue the government, which the lower court denied, saying that the group wouldn’t be directly affected by the plant. Historically, groups such as the conservation association have had a difficult, if not impossible, time securing standing to sue over environmental projects. But the association argues that because its interest lies in protecting national parks, a court should hear its case. In its suit, the association charges that Craig Manson, the Interior Department’s assistant secretary for fish, wildlife and parks, made an “arbitrary” decision to give Bull Mountain his blessing and ignored the findings of agency scientists. It is one of a string of disputes between political appointees of President Bush and federal scientists. In 2004, the Union of Concerned Scientists, which includes Nobel laureates and former federal agency directors, signed a statement voicing its concern over what members termed the misuse of science by the Bush administration. “When scientific knowledge has been found to be in conflict with its political goals, the administration has often manipulated the process through which science enters into its decisions,” the statement said. The practical impact of Manson’s decision is that Bull Mountain isn’t likely to implement the more costly pollution controls environmentalists and government scientists say would keep the air in Yellowstone clean. Under the Clean Air Act, states have the ultimate responsibility for granting regulatory approval for industrial projects. But when a plant could affect protected areas like Yellowstone, the states must get input from federal land managers such as the National Park Service or the Fish and Wildlife Service. At the end of 2002, a team of federal air-quality experts from the two services found that pollution from the Bull Mountain plant would adversely affect air quality in Yellowstone and in the nearby UL Bend wilderness area. According to the court record, Manson initially went along, making a recommendation to Montana environmental authorities echoing the scientists’ finding that the plant would cause visible pollution in the park. Determined to ultimately win the assistant secretary’s approval, Bull Mountain submitted its own pollution analysis to state and federal authorities, saying that its plant would not harm air quality in Yellowstone. The company used weather data specific to the Yellowstone area to argue that any visual impairment suffered by visitors to the park would be more likely to be caused by snow, rain or fog than by the plant. In its report, Bull Mountain also wrote that one of the baseline tests the government scientists used created an unrealistic, pre-industrial “horse-and-buggy” standard for approval of the coal plant. In January 2003, after hearing the company’s case, Manson changed his mind and sided with the power plant. A FINAL DECISION A 2001 Bush appointee, Manson has been a judge on the Superior Court of California in Sacramento, and before that, general counsel of the California Department of Fish and Game, where he was widely criticized by environmentalists for favoring developers. He had made his original decision after reviewing research done by National Park Service and U.S. Fish and Wildlife Service scientists. (UL Bend is administered by the Fish and Wildlife Service, and Yellowstone by the National Park Service.) Manson says an adverse-impact finding like the one for Bull Mountain is “reversed only when we get new information” that indicates the finding was wrong. “The company supplied us with new data,” Manson says in an interview. “There is an awful lot of confusion in the press, in the public, and, frankly, in the agency about when and how an adverse finding is made. I’m the only one who can make one, not the [National Park Service] or the [Fish and Wildlife Service]. Nobody except the assistant secretary.” Along with the air-quality issue, there is a disagreement over the pollution-control technology the plant would use. National Park Service scientists wrote in a 2002 memo, included in the court records, to their peers at the U.S. Fish and Wildlife Service that even Bull Mountain’s economic analysis of the cost of implementing sophisticated pollution-control technology “should be taken with several grains of salt.” With the conventional, less-efficient technology Bull Mountain plans to use, it would cost the company about $400 per ton of coal to scrub sulfuric acid from air emissions at the plant. That’s compared with about $540 per ton using the technology the government scientists recommended, says Don Shepherd, a National Park Service Air Resources Division staffer who worked on the Bull Mountain analysis. The latter figure is “still a lot of pollution reduction at a very low cost,” Shepherd says, noting that the Park Service considers economically feasible pollution-control technology that costs as much as $5,000 per ton of coal for a plant that is located near a national park. The scientists say their findings were disregarded by Manson and that he made a policy decision, but masked it as a scientific one. “It’s been a very sensitive issue,” says Chris Shaver, chief of the National Park Service’s Air Resources Division. “We provided the technical recommendation, and somebody else makes the policy decisions.” This isn’t the first time Manson has overridden findings by agency scientists. Last fall, Manson overruled a recommendation by government scientists in deciding that declining populations of marbled murrelets, a rare seabird, should not be considered for protection, according to the U.S. Fish and Wildlife Service. Manson remains staunchly sure of his decision and thinks that scientists sometimes misunderstand their role in the world of regulation and policy making. “Folks like to divide the world up into scientists and policy-makers, as if there is some very bright line,” Manson says. “We make science-informed policy decisions. Science is an intimate part of the policy-making process . . . but I make the final determination.” After receiving Manson’s blessing, Montana issued the permit for the power plant, but another environmental group challenged it in state court, where it remains in litigation. The Montana Supreme Court last month threw another wrench into the plans for the power plant when it ordered the state environmental review board to take another look at its decision to uphold the issuance of an air-quality permit for the proposed coal-fired power plant. A COAL RENAISSANCE The fight over Bull Mountain could be played out in towns across the country as the coal industry enjoys a modest revival. So-called clean-coal initiatives have been a focal point of the Bush administration’s domestic energy policy. In his 2005 energy proposal, unveiled in April, Bush renewed calls for a boost to coal production. A 2004 report by the Department of Energy’s National Energy Technology Laboratory showed that 94 new coal-fired electric power plants are planned across 36 states. In Montana, the boomlet hearkens back to the bitter environmental disputes of the 1970s, when coal production flourished. Some environmentalists feel as if little progress has been made in developing new sources of energy. “Now we are where we were 30 years ago, trying to fight these things,” says Larry Krajl, a self-described environmental radical and member of the Environmental Rangers, a group of military veterans who, in Krajl’s words, feel that “certain places are off-limits to development.” Alan Olson, a state lawmaker who has encouraged coal use, is a frequent source of Krajl’s ire. Olson, who lives a few miles from Roundup, introduced and helped pass 2001 legislation that allowed the revoked permit for the mine at Roundup to be issued to a new operator who could skip most of the application process. He says he is doing his part to create jobs in an anemic Montana economy. Smoothing the way for investors who frequently have been sued by Montana’s active environmental community is one way Olson thinks he can help. “There were very few potential environmental problems with the mine,” Olson says. “But how many millions were spent on it because of lawsuits?” Steven Wade, a Helena, Mont., lawyer who represents the Bull Mountain power plant company, touts the local economic benefits that the plant would bring. He says that public meetings about the plant were dominated by supporters. For a community in which the largest three employers are public entities — the school district, a hospital, and the county itself — finding adequate support from tax revenues for needs such as education, emergency medical services, and road maintenance can be a challenge. With about 50 employees, the Bull Mountain mine is the largest private employer in Musselshell County, where in 2000 the median household income was $25,527, according to the U.S. Census Bureau. That’s compared with $41,994 in per capita income nationally. To Wade, the argument for the plant is simple: “They need funds for their services.” But for organized labor in Montana, the lure of well-paying jobs that construction of plants like that proposed for Bull Mountain can offer remains tempered by environmental concerns. In late May, the state’s AFL-CIO endorsed “environmentally sound” coal and power plant development. “There’s hardly any work here. We just want to build powerhouses, but we also understand that they have to be good powerhouses,” says Jerry Driscoll, the Montana AFL-CIO’s executive secretary, adding that jobs for skilled construction workers hired to help build the power plant would pay about $22 an hour. While Bull Mountain isn’t a defendant in the D.C. Circuit appeal, if the environmental groups prevail in the case, they could establish another series of roadblocks to keep companies like it from getting industrial plants approved. Specifically, a court victory for the environmentalists could force the Interior Department to re-examine Manson’s finding that the Roundup plant would not affect air quality at Yellowstone. If the groups are not successful, they say in court documents, “agency officials [will be] free to utilize any arbitrary method — or no method at all — in considering air quality impacts to federal [protected] areas without fear of challenge by interested citizens.” Lily Henning is a reporter with Legal Times, a Recorder affiliate based in Washington, D.C.

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