Category: 2017 Legislature

If you want to visit Ground Zero in the intra-GOP debate about what private businesses owe the society that has been built around them, look no further than Montana’s Senate Bill 338.

It specifies that when a coal plant above a certain size in Montana closes, as two units of the Colstrip Generating Station in southeastern Montana are expected to do no later than July 2022, the plant owner has to pay for decommissioning costs. Ordinary enough, right? Well, sort of—we expect heavy industry to clean up after itself. But those “decommissioning costs,” as the legislation defines them, do not just include demolishing the facility.

When the Colstrip station closes, barring a miracle, the community is going to become a shell of its former self. The power plant’s place in that community makes Malmstrom Air Force Base’s place in Great Falls look small. A plant closure means an instant reduction in property values, a cost shift to the remaining taxpayers in the county, and a lot of stranded assets in the form of local government projects that still have outstanding balances on their bond arrangements. The cost of all of these consequences of the plant closure are things the legislation includes within its definition of “decommissioning costs.” In other words, if the legislation becomes law, the power plant owners will have, among other things, the obligation to pay out howeowners and small businesses who find themselves underwater in their mortgages.

If those coal plants stay open longer, then they get a break from paying this bill, on the theory that their continued employment of locals and continued tax payments reduce the burden that the plant closure will transfer to others.

The Great Falls Tribune reported out a specific price tag to this legislation. But the actual numbers are not specified anywhere in the legislation, and would be subject to a process where people could submit their claims to a state agency, the Department of Environmental Quality, that’d adjudicate the total amount of “decommissioning costs.”

There are good arguments on both sides of the legislation.

On the one hand, this bill is a big intervention in the affairs of “private” business. Don’t power plant owners have enough regulatory burden without further legislation requiring “exit fee” payments? Didn’t the workers at Colstrip understand that they were working in and living in an economy with one big fish, and that their property values, their livelihoods, and their schools would all be worse off when that employer decided to pick up and go? Maybe. Laissez-faire.

On the other hand, this is a power plant that isn’t really closing because of the “free market.” It is much more like the decision the government makes with respect to a big employer like… Malmstrom. The proximate cause of the plant closure is environmentalist pressure in Washington (both of them – D.C. and State).

Up until just a year ago, one of the Colstrip plant owners, Puget Sound Energy, which is the electric utility for the metro Seattle area, was singing its praises, suggesting it was one of its cheapest resources. That ended the day when the Sierra Club and Puget, and also Talen Energy, signed an agreement to close Units 1 and 2 of the facility by mid-2022 instead of facing further litigation over ash ponds near the property. For companies like Puget Sound Energy, that’s all fine. They stand to get all the money they need to close and all the money the need to build a new power plant, likely a gas plant and a wind farm in Washington State, to replace the power supply. That’s because they’re a regulated utility. (Talen, meanwhile, is a so-called merchant utility. It doesn’t have a captive set of ratepayers to charge its expenses; its revenues are subject to the open market’s prices for energy, although these prices themselves are the function of a glut of oversupply that has resulted from other government policies.)

So here’s the question: When a regulated utility gets co-opted to do something that is not economic, all with the assurance that the utility is going to be made whole by the same politicians who pressured them to close it, then what is the “free market” response from Montana legislators? To do nothing? That might just make you a quiet partner of Washington politics.

There’s peril in this for the Montana left too. It was the Montana Environmental Information Center (the Sierra Club’s local branch) that filed the litigation that is resulting in the closure of Units 1 & 2 of Colstrip. Does the Sierra Club want to give the workers there a fair shake – or not? If they don’t give a fair deal to those workers, “MEIC” and “Sierra Club” are going to be remembered forever as the names that, in the eyes of those workers, ruined their lives.

This bill could be a loser or a winner. The politics aren’t clear on it. Labor Democrats probably will love it, some of the environmentalist D’s might hate it. For Republicans, SB 338 might be a litmus test for who in the Montana GOP is a “Trump Republican” and who is not. Trump, of course, has been fully willing to intervene in these situations, using the powers of the state, or at least his suggestion of them, to save jobs and promote local economies. Will Montana’s legislative Republicans do the same?

You can track SB 338 here. It’s up for a hearing next week, on March 16.

Rep. Adam Hertz is the man.

He’s young, he’s smart, and he’s getting things done in Helena. (Two of his bills, HB 297 and HB 300, were passed out of committee unanimously.)

Before entering the Legislature, Hertz served a term on the Missoula City Council, where he opposed Missoula’s unconstitutional gun ordinance. As a fiscal conservative, he found himself not just in the minority, but often as the lone dissenting voice on the uber-progressive council. (Note to Great Falls City Commissioners: it’s OK to disagree with each other on occasion.)

The freshman Republican has also shown a willingness to sensibly buck party orthodoxy. See his Facebook post on capital punishment:

https://www.facebook.com/AdamHertzMT/posts/1616874694996420

And perhaps best of all, he recently introduced legislation, HB 430, that would allow retirement homes to purchase liquor licenses:

Adam Hertz on HB430: "Make Retirement Homes Great Again." The bill would allow retirement homes to obtain liquor licenses. #mtleg #mtpol

— Freddy Monares (@TGIFreddy) February 16, 2017

U.S. Senator Hertz? Governor Hertz?

Rep. Jeremy Trebas’ bill to ban municipal cell phone bans died in its second reading Tuesday night by a 63-37 vote.

Whether or not one agrees with the practice of singling out gabby drivers (versus, say, hungry drivers who snack behind the wheel, or any other type of distracted drivers), we argued that because virtually every other driving-related offense is codified by the state of Montana — and not by cities — the issue of cell phone use should fall under the state’s purview, as well.

This question framed the discussion in the House:

Trebas bill on cellphones became quasi debate on city rights vs. state rights.

— Phil Drake (@IR_PhilDrake) January 24, 2017

Notably, every House Democrat, save for Box Elder’s Jonathan Windy Boy, voted against the bill.

Who knew Democrats were such staunch advocates of local control?

Montana House Rep. Kirk Wagoner, R-Montana City, wants to protect public employees who blow the whistle on government misconduct. He has introduced two bills, HB 202 and HB 208, “that would criminalize attempts by supervisors to retaliate against state employees who report corruption,” attorney and former Rep. Matthew Monforton, R-Bozeman writes.

While Wagoner’s proposals — in lockstep with the First Amendment — should not be about partisan politics, Monforton doubts that House Democrats and the Governor’s office will act accordingly:

Democrats (another group that supposedly looks out for state employees) weren’t impressed. Governor Steve Bullock will never sign a bill that immunizes employees who open closets holding his skeletons.

For his part, and to his credit, Rep. Wagoner has pledged to work with Democrats. From the Helena IR:

Wagoner said he would work with opponents to tweak his bill. For instance, he said he would reduce the penalty so it was not a felony, specify the case would be a private action that could go straight to a judge without investigation, and clarify the law does not cover local governments.

But will Democrats work with him? Monforton offers some excellent suggestions for Republicans in the face of Democrat obstructionism.

Read his entire post here.

Today, the Montana House Judiciary Committee heard testimony on HB 194, a bill sponsored by Rep. Jeremy Trebas, R-Great Falls, that would prohibit local governments from imposing “restrictions on [the] use of mobile communications devices while operating a motor vehicle.” We published Trebas’ prepared remarks two days ago.

In testimony opposing Trebas’ bill, City Commissioner Bill Bronson included a letter from our very good police chief (and arguably the City’s finest department head), David Bowen. It reads:

Members of the House Judiciary Committee:

In order to take a proactive step in reducing distracted driving crashes that result in property loss, personal injury and even death, cities like Great Falls have passed local ordinances to prohibit the use of electronic hand-held devices in order to equip law enforcement with the tools necessary to address this rising problem.

By prohibiting the ability of the local communities to help curb this problem, you are endangering the welfare of our citizens that we have taken an oath to safeguard. I am opposed to HB 194 and would strongly encourage our lawmakers to consider the consequences of how this bill affects the motoring public.

David Bowen

Great Falls police chief

Trebas thinks his bill will make it out of committee, but is unsure of its chances on the House floor.

Even if it does, we can’t imagine Governor Bullock would sign it into law.

Rep. Jeremy Trebas, R-Great Falls

Rep. Jeremy Trebas, R-Great Falls (HD-25), submitted to us testimony he will add to to the House Judiciary Committee on Tuesday, January 17, at 8:00 a.m. Here is the full text:

Mr. Chairman and Members of the Committee,

Today I am presenting a unique bill to you, House Bill number 194. It is unique because it goes in the opposite direction of most if not all other governments, State and Local, in the U.S., on the topic of cell phone use while driving. While most are getting harsher in their penalties for driving while using a cell phone, this bill proposes that we stop the enforcement of cell phone bans, at least until they are shown to be effective in protecting public safety.

Why should we put a stay on the bans? The short answer is that they don’t really seem to be working, meanwhile cities are charging citizens large fines and in at least one city in Montana, instituting mandatory community service for 2^nd and 3^rd offenses, at 20 hours and 40 hours respectively.

I have some statistics from a recurring study to present to you, which serves largely as the basis for my argument to take a wait-and-see approach as far as bans are concerned. The study is conducted by The Insurance Institute for Highway Safety. They are the organization that you hear quoted in commercials about vehicle crash data. They give out the “Top Safety Pick” awards to vehicle manufacturers. I think you will find them to be an unbiased and reputable source of information. Their studies have indicated no discernible difference in collision rates prior to and post bans in States that have made cell phone use illegal while driving. In fact, one of their studies indicated a slight increase in collision rates post ban. There is speculation as to why that happened, and two main reasons stick out. One reason is that people try to hide the activity by lowering their phone down into their vehicle to avoid detection, causing their eyes to be further from the road than they otherwise would be. The second reason is that while the bans decrease use of cell phones among law abiding citizens, the bad drivers out there are just going to continue being bad drivers. So again, collision rates do not decrease because of these bans. I’ve heard the argument that we just have to give them time to work. I would tell you that the study I referenced was first published in 2009, and then they ran tests again and published another study in 2011, and yet again in 2013, with increased special enforcement in their most recent study. If these bans were working, there should have been an indication by now, proven out by the statistics.

I would also like to say that I know unbanning an activity that is dangerous makes some of you uncomfortable. I get that, and I understand that being distracted while driving is dangerous and there are also studies and statistics that point that out, which I acknowledge. But we are picking one small area of distracted driving and saying that it is the worst form, while numerous other distracted driving activities go unenforced. There is already a law on the books to enforce distracted driving, we don’t need a special category just for cell phones, which as I hope I have made clear, just doesn’t work to increase the safety of the public, however counter-intuitive that may seem.

So, some questions I have received in the 4 years I’ve been making this argument include, things like, “How about just a texting ban?”

The studies from IIHS included the study of texting while driving, and banning it only seemed to cause people to try and hide the activity, by further lowering their phone and their eyes down into the vehicle and away from the road. It didn’t help reduce collision rates.

Or “Why can’t people just use a Bluetooth/Handsfree device?”

It is not the device, necessarily, that distracts a person, it is the conversation. While engaging in conversation, whether it is with a person inside the vehicle or on the phone, the brain switches to a part of the brain called the parietal lobe, which takes away some of the focus necessary for driving. So it is not the device that distracts you but the conversation. It is still legal to have someone sit next to you in the vehicle and distract you by talking. It’s also legal to have kids fighting in the back seat. Sometimes talking on the phone helps mitigate greater distractions while driving.

Some people ask whether I have ever received a ticket for driving on my cell phone?

No. The City of Great Falls instituted their ban in August of 2012 and I have not received a ticket. I’m a fine, upstanding, law abiding citizen, most of the time…

And lastly, “Don’t we have more important things to work on?”

Yes and no. There are more important issues to work on, but this issue is important to those that are receiving fines and community service sentences in the name of public safety, when no increase in public safety has actually occurred.

Thanks for your attention Mr. Chair and members of the committee. I’ll field any questions you may have, and I reserve the right to close.