Montana Supreme Court hears climate lawsuit against Montana youth
8 mins read

Montana Supreme Court hears climate lawsuit against Montana youth

HELENA — Attorneys weighed in on the scope of the Montana Constitution’s environmental protections and the separation of powers Wednesday in one of the nation’s most high-profile climate trials. In an hourlong hearing that drew hundreds of spectators, the Montana Supreme Court heard opposing opinions on whether the Montana Constitution’s “anticipatory and preemptive” environmental protections should require state agencies to consider climate-focused analyses when reviewing fossil fuel projects.

The case against Montana was filed by 16 young Montana residents who alleged in their 2020 lawsuit that the state failed to uphold their constitutional right to a “clean and healthful environment” by failing to study the climate-warming potential of greenhouse gas-generating projects such as coal-fired power plants and oil pipelines.

During a seven-day trial last June, the plaintiffs argued that the state threatened their physical and mental health, economic security, cultural traditions and recreational interests by approving projects that contributed to longer and more intense wildfire seasons, shrinking snowpack, reduced summer river flows and extreme weather events.

Plaintiffs in the Held v. Montana lawsuit leave the Montana Supreme Court following a hearing on July 10, 2024.
Loan: Amanda Eggert / MTFP

In August, Lewis and Clark County District Judge Kathy Seeley sided with the plaintiffs. In a 103-page ruling, the judge said Montana contributed to the harm to the youth and had the opportunity to mitigate those effects by changing its approach to permitting energy projects.

Seeley ordered the state to include greenhouse gas analyses in its environmental reviews, a change currently being implemented by the Montana Department of Environmental Quality. Seeley also wrote in the order that the state must either “have the discretion to deny permits for fossil fuel activities if the activities would result in emissions (of greenhouse gases) that cause unconstitutional degradation and depletion of Montana’s environment and natural resources” or “the permitting statutes themselves must be unconstitutional.”

Attorneys for the state stressed during Wednesday’s hearing that Montana does not deny that climate change is happening or that it is being accelerated by human activity. Dale Schowengerdt, who represented Gov. Greg Gianforte, the Montana Department of Environmental Quality and two other state agencies In his appeal, he focused his arguments on whether using the courts to reverse climate change exceeds the “bounds of the judicial authority.”

“This is a complex issue that cannot be resolved by, as the Ninth Circuit has said, the justices. It is, for better or worse, a political issue,” he said, referring to an ongoing federal case, Juliana v. United States, that has been largely decided in favor of the federal government.

Schowengerdt and Montana Department of Justice Attorney Mark Stermitz also argued that the court should decide the issues raised in this case in the context of the specific permit decision and found that the plaintiffs’ claims were weakened by the lack of a clear remedy.

Attorney Roger Sullivan, representing the youth, countered that it is the Supreme Court’s job to decide the constitutionality of laws like the one at issue in this lawsuit and that the Montana Constitution unequivocally protects the right of Montanans to a functioning “environmental life support system.”

Consistent with earlier claims made by the state in the lawsuit, Stermitz argued that even if the state eliminated “every ounce of fossil fuels used in Montana,” it “would have no effect on the injuries suffered by plaintiffs.”

This, he argued, raises the issue of whether a plaintiff has standing, a legal concept used to determine whether a party has grounds to bring legal claims. Establishing standing typically requires a plaintiff to link his or her injuries to the defendant’s actions and show that the defendant could mitigate those injuries by changing his or her actions.

The state’s appeal was supported by the Treasure State Resources Association, the Montana Chamber of Commerce, the Frontier Institute, a free-market think tank, Northwestern Energy and the Montana Legislature, which argued that the district court was usurping policymaking authority that properly belongs to legislators.

Stakeholders supporting the district court’s findings include members of Montana’s outdoor recreation industry, a group of public health experts and physicians, a coalition of constitutional and environmental law professors, and a collective of environmental and tribal advocacy groups. Six retired Montana Supreme Court justices also spoke out, suggesting the legislature had seized too much control, threatening the separation of powers that is the foundation of the U.S. Constitution.

Litigants and interested observers gathered in the Montana Supreme Court chambers to follow the trial on July 10, 2024.
Loan: Amanda Eggert / MTFP

In his brief, Sullivan emphasized the urgency of the issue before the Supreme Court and argued that it was the proper forum to answer such questions, given the constitutional harms alleged by the plaintiffs in their testimony and the court’s unique role in reviewing the constitutionality of the statute.

He said the state has failed to protect Montana’s “environmental life support system” as required by the Montana Constitution, to the detriment of current and future generations of Montana’s children. In his opening statement, Sullivan focused on changes to the Montana Environmental Policy Act that address both climate analysis and Montanans’ access to legal remedies in the face of misinformed permitting decisions.

“This two-headed legislative hydra blinds Montana’s environmental agencies to the most serious environmental crisis Montana has ever experienced — the climate crisis — and closes the doors of Montana’s courts to those who seek redress for harms hidden from the agencies’ eyes,” Sullivan said.

Judge Jim Rice asked If the issue is “ripe” enough for judicial interpretation, given that the plaintiffs are not challenging a specific energy project, Sullivan responded that Montana is in a climate crisis “right now.”

“The temperature is rising every day. It may be warmer tomorrow, but it will certainly be much warmer 50 years from now when these young plaintiffs are my age if nothing is done,” Sullivan said. “This case could not be more mature.”

Rice responded that the case is related to another lawsuit that went before the justices in May. That lawsuit concerns a gas-fired power plant that NorthWestern Energy built in Laurel. That case, which has not yet been decided by the court, also concerns the constitutionality of House Bill 971, a law that prevents the state from conducting greenhouse gas analyses that lawmakers passed last year to help the NorthWestern gas-fired power plant overcome a district court ruling that invalidated its permit. The plant is expected to emit 23 million tons of carbon dioxide into the atmosphere over its 30-year life.

“It’s interesting to compare this case to the one we (heard) recently about the Laurel plant … a real case with a real permit. That’s missing here and it seems like you’re trying to get some kind of blanket ruling here,” he said.

At a news conference after the hearing, Andrea Olson of Our Children’s Trust, an Oregon-based organization that pursues youth climate claims against state and federal agencies, responded to the judge’s claims.

“We’re already in an emergency situation — a piecemeal challenge is not the way to go,” Olson said. “We need to do something that addresses the problem at its source.”

The judges did not indicate when they would issue a ruling.