This is an archived article that was published on sltrib.com in 2006, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
A conservative state lawmaker wants to buffer the blow of environmental lawsuits for Utahns building roads, dams, power plants and other projects.
But environmentalists are calling Rep. Aaron Tilton's trio of environmental bond bills "unconstitutional."
"Everybody deserves his or her day in court," said Mark Clemens, lobbyist for the Utah chapter of the Sierra Club, "and what Rep. Tilton's legislation does is make that more difficult."
Tilton, a Springville Republican, said the costs associated with the Legacy Parkway fight prompted him to introduce the bills.
All three bills - HB100, HB259 and HB335 - require someone who wants to appeal a state or federal agency's action to post a bond with the state Commerce Department.
HB259 deals with requests for a stay of an Air Quality Board decision. HB335 deals with stay requests before the Radiation Control Board and HB100 covers appeals of state or federal actions under 31 environmental laws, including the federal Clean Air Act, the Clean Water Act and the Nuclear Waste Policy Act.
The bonds would cover such costs as employee pay and benefits, lost profits and "consequential costs," like swelling construction costs, along with tax revenue that was lost while the case was being appealed.
"There is no representation [in current law] for a company or a state [agency] or other entities that would be aggrieved by the action," he said. The legislation "does not prevent anyone from filing a lawsuit."
Tilton lists his occupation as "business development" and has several companies, including a company involved in electric-power generation, called T.E. Industries Inc. He also is assistant vice chairman of the newly formed Conservative Caucus, a political fundraising committee that started out with $10,000 in seed money from Envirocare of Utah.
Both Envirocare and power companies are now facing the kinds of legal actions that would be covered by his bills. Tilton insists, however, that the bills address general principles, not specific cases.
He said many environmental lawsuits are intended to do nothing more than cause costly delays. For electric-plant opponents, for instance, the broader goal is to drive up the cost of power so that alternative energy becomes more economically attractive, he said.
Tilton added: "The courts have allowed them to hijack projects."
Stephen Bloch, staff attorney for the Southern Utah Wilderness Alliance, described HB100 as "a sweeping effort to keep citizens and citizens' organizations and businesses at arm's length from the courthouse."
He predicted that a thorough review of the bill would confirm that it is unconstitutional, violating Utah's open courts law and Congress' insistence that citizens not be impeded in seeking review of projects.
"That's not how Congress has set up federal environmental laws," Bloch said, noting that the courts have that power and use it, as they did in the Legacy fight. "The states can't step in and require a bond."
While Tilton's legislation targets environmental groups, some suggest businesses like real estate companies and special service districts may also object to them. Tilton counters that a law similar to his Air Quality Bond bill has held up in Montana.
Dianne Nielson, director of the Utah Department of Environmental Quality, said her agency has no formal position on the bills. But she expressed concern that the measures might have a chilling effect on public participation.
"In Utah, as a state we have made great efforts to make all processes inclusive to all parties - but especially the public," she said.