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Guest view: The science and law underlying the consent decree

Guest view: The science and law underlying the consent decree

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Joe Griffin


An open letter to the BSB Council of Commissioners:  The science and law underlying the Consent Decree

I am compelled to address the Commissioners over a seeming contradiction between the legal and scientific basis of the Consent Decree that is before you.

The Silver Bow County Attorney’s office recently requested and received a legal analysis of former judge Brad Newman’s ruling in the case Silver Bow Creek Headwaters Coalition LLC v State of Montana from Ryan McLane, who is with the firm Franz & Driscoll, PLLP, Attorneys at Law. I quote the following from that analysis:

“Regardless of Silver Bow Creek Headwaters [decision], the DEQ has the sole statutory enforcement powers of Montana’s environmental laws, including the Montana Water Quality Act.

The Montana Supreme Court has recently affirmed the DEQ’s broad authority in this realm, and the courts’ great deference to DEQ decisions when they wrote:

The Legislature has authorized DEQ to administer the Montana Water Quality Act and the judiciary may not substitute its judgment for that of an agency carrying out a statutory duty assigned to it. And to ensure that agency decision-making is scientifically-driven and well-reasoned, this Court affords “great deference” to agency decisions implicating substantial agency expertise.”

I’m not using McLane’s legal analysis to extend the discussion of former judge Newman’s opinion of his ruling but to illustrate the point that the law follows science and not the other way around.

I emphasize here that the Montana Supreme Court affords great deference to DEQ’s scientific expertise and now focus my comments back to the matter at hand - the Consent Decree. It is an agreement deeply steeped in years of science and in law.

As with the Montana Supreme Court, this council should defer to 37 years of science and technology that underlie this Consent Decree.

When I think back to the faces I have seen at the table in countless technical discussion and countless negotiations, I see many Montana Tech graduates. I see University of Montana, MSU and Carrol College graduates. Most who get into Clark Fork watershed cleanup stick around because they know we are leading the world in environmental cleanup, and this is a once-in-a-lifetime career opportunity. That has led to real continuity of the personnel involved in Clark Fork basin cleanups.

The team that produced the Consent Decree includes scientists and lawyers that have been working toward this agreement since the 1990s. You could say it was a team of rivals composed of individuals from EPA, Atlantic Richfield, DEQ, NRD and of course Butte-Silver Bow. And an army of their consultants.

Discussions were often heated and antagonistic. But in the end, the team found consensus that protects human health and the environment.

We have had the best and brightest behind this final plan to clean up Butte and Silver Bow Creek. I urge the Council of Commissioners to approve the Consent Decree at the May 20 Council meeting.

Joe Griffin is a hydrogeologist who has been involved in Clark Fork basin Superfund since 1990 as both a consultant to Atlantic Richfield and a DEQ project manager.


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