Chief Justice Mike McGrath delivered the Opinion of the Court.
¶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 Courts 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 Cottonwoods claims involve DEQs decision to grant the Yellowstone Mountain Club (YC) a Montana Pollution Discharge Elimination System (MPDES) permit for YCs proposed “water reuse” snowmaking project (Snowmaking Project), which will repurpose treated wastewater for YCs 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 YCs 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 YCs 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 Montanas 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 Cottonwoods 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 DEQs 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 Envt 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.
1
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.”
¶14 On December 28, 2022, the District Court dismissed Cottonwoods constitutional challenges, ruling that the Montana Constitutions “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 Cottonwoods allegation that DEQ violated the Montana Constitution by failing to take a “hard look” at the potential impacts of pharmaceutical pollution in YCs MPDES permit.
¶15 The same day, the District Court denied Cottonwoods 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 Cottonwoods 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 Courts orders granting summary judgment to DEQ on Cottonwoods MEPA claims and denying Cottonwoods motion to supplement the record.
¶19 We review summary judgment decisions and related conclusions of law de novo. Bitterrooters for Planning, Inc. v. Mont. Dept of Envt 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. Dept of Envt. 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 Sportsmens 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 agencys decision and that is relevant to the decision or to the adequacy of the agencys 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. DEQs response to Cottonwoods public comment reflects that the agency considered those factors when it determined YCs 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 agencys 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. Dept of Envt 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. Envt Council v. Mont. Dept of Envt Quality, 2020 MT 303, ¶ 18, 401 Mont. 168, 477 P.3d 288 (internal quotation omitted).
¶29 “The aim of DEQs 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 Legislatures 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 Cottonwoods 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 DEQs argument that it satisfied its MEPA obligations simply because water quality standards have not been established for “pharmaceuticals.” We agree, however, that Cottonwoods 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.
FOOTNOTES
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. Following an adverse district court ruling, Cottonwood, et al. appealed Mont. Rivers to this Court. Mont. Rivers v. Mont. Dept of Envt 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.
MIKE McGRATH
We Concur:
JAMES JEREMIAH SHEA
INGRID GUSTAFSON
DIRK M. SANDEFUR
JIM RICE