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Environmental policy group sues DOJ over withheld communications with Canadian coal company

by BLAIR MILLER Daily Montanan
| April 21, 2024 12:00 AM

A Montana environmental policy group sued the state Department of Justice earlier this month, alleging the department is violating the organization’s right to know under the constitution by withholding communications between the department and a Canadian coal mining company whose pollution is flowing downstream to Montana.

The Montana Environmental Information Center is asking a judge to force the DOJ, led by Attorney General Austin Knudsen, to turn over a privilege log and 414 documents so the court can review them to see if they should be handed over to the organization.

The records involve communications between the DOJ and Teck Coal, a company that owns coal mines in British Columbia across the border from northwestern Montana that the U.S. Geological Survey said in November was causing vast increases in selenium pollution in the Elk River. The Elk River flows downstream into Lake Koocanusa.

The company was fined $60 million in 2021 for dumping harmful materials into the river and harming westslope cutthroat trout, white sturgeon and other fish populations.

Elevated levels of selenium can be harmful to fish and bird reproduction and disrupt the ecosystem, according to the U.S. Geological Survey and numerous other studies.

In November, a USGS study reported that levels of selenium and nitrate had been increasing for decades and that the selenium concentrations at the border had not met Montana’s site-specific standards since July 2020.

Last month, the International Joint Commission, which decides water disputes and other issues on the U.S.-Canada border, was asked by both governments and the Ktunaxa Nation Council to oversee the establishment of a framework to study the pollution and find ways to reduce it.

Following years of discussions between Montana and Canadian governments over the selenium problem, in late 2020, the Montana Board of Environmental Review wrote an administrative rule setting a water quality standard of 0.8 micrograms per liter of selenium for Lake Koocanusa from the border with Canada down to the Libby Dam, which was approved by the U.S. Environmental Protection Agency in 2021. The EPA’s federal standard is 1.5 micrograms per liter but allows for site-specific levels as well that can be more stringent.

But Teck Coal and Lincoln County Commissioners asked the board to review the rule, and it sided with the coal company and tried to overturn it. That led the Department of Environmental Quality to sue the board, alleging the board had overstepped its authority, and then the MEIC to challenge the board’s decision.

Those two lawsuits are still ongoing in Lewis and Clark District Court. The Montana Department of Justice is an intervenor in the DEQ’s lawsuit, according to court records.

The Montana Environmental Information Center submitted a public records request to the DOJ on Jan. 4 asking for any documents and communications it has had with Teck Coal since the start of 2022.

But according to the new lawsuit, the organization received nothing back until a communications staffer with the DOJ on Jan. 17 told the organization there were likely many privileged documents that needed to be searched.

The request was narrowed to only communications and a list of terms, according to the MEIC, after which the department said it needed to pay a fee just to search for the documents.

The organization declined, and on Feb. 14, the attorney general’s assistant said the MEIC could pay after the request was filled and also that the communications would be privileged since both the DOJ and Teck Coal were involved in active litigation, according to the suit.

The DOJ charged the MEIC $2,769 for 414 records which the group paid on March 14. But on March 20, according to the lawsuit, the DOJ asked the organization to withdraw its request and again said the records were privileged.

A week later, the organization responded and said the DOJ had to provide a privilege log at the very least and set an April 26 deadline for the department to provide the records.

But on April 5, the DOJ again said it wouldn’t comply with the request nor provide a privilege log, claiming most of the communications are protected under “common interest privilege,” which is a type of attorney-client privilege that at times can cover communications between lawyers from two separate parties. The DOJ offered to give the organization its money back and provide the records it determines are not privileged.

The Montana Environmental Information Center believes the Department of Justice is violating its right to know under the state constitution as well as public records laws since it has not provided any records or privilege log. It also contends that a common interest privilege has never before existed between Montana’s government and a regulated foreign corporation.

The Department of Justice did not immediately respond to an email seeking comment.

The suit asks a judge to grant writs of mandamus directing the DOJ to produce the documents and a privilege log for a review by the judge, who would then determine what is privileged and what could be released to the organization.

“Not only are (the DOJ) failing to live up to their name and bring this corporation to justice, but they’re threatening those of us who are trying to do so in their stead,” MEIC Deputy Director Derf Johnson said in a statement. “Even more alarming is that the DOJ is claiming it has a ‘common interest’ with Teck Coal, and so the documents can be concealed from public scrutiny.”

Blair Miller is a Helena-based reporter. The Daily Montanan is a nonprofit newsroom.