Eleven of the 16 youth plaintiffs in the Held v. Montana case pose for a photo after Day 5 of the trial on Friday, June 16, 2023. Top row (left to right): Lander Busse, Badge Busse, Grace, Rikki Held, Olivia. Bottom row (left to right): Kian, Mica, Claire, Eva, Taleah, Sariel. (Photo by Blair Miller, Daily Montanan)
The State of Montana’s failure to consider greenhouse gas emissions from energy and mining projects violates the state constitution because it does not protect Montanans’ right to a clean and healthful environment and the state’s natural resources from unreasonable depletion, a judge ruled Monday in a victory for 16 youth plaintiffs who sued the state.
Lewis and Clark County District Court Judge Kathy Seeley sided with the young plaintiffs in her decision in the Held v. Montana trial, striking down as unconstitutional the so-called “limitation” to the Montana Environmental Policy Act, which was amended by the legislature this year, as well as another portion of law surrounding greenhouse gas emissions that was changed this past session.
Seeley permanently enjoined the 2023 version of the MEPA limitation, passed via House Bill 971 more than halfway through the session, as well as a portion of Senate Bill 557, saying both were unconstitutional and the latter “removes the only preventative, equitable relief available to the public and MEPA litigants.”
“Plaintiffs have a fundamental right to a clean and healthful environment, which includes climate as part of the environmental life support system,” Seeley wrote in her decision.
Julia Olson, the chief legal counsel and executive director for Our Children’s Trust, the group behind the lawsuit, called Seeley’s decision precedent setting and “a sweeping win” for Montana, the youth plaintiffs, and the climate, and said more court victories would be coming.
“Today, for the first time in U.S. history, a court ruled on the merits of a case that the government violated the constitutional rights of children through laws and actions that promote fossil fuels, ignore climate change laws, and disproportionately imperil young people,” Olson said.
“The Honorable Judge Kathy Seeley declared Montana’s fossil fuel-promoting laws unconstitutional and enjoined their implementation. As fires rage in the West, fueled by fossil fuel pollution, today’s ruling in Montana is a game-changer that marks a turning point in this generation’s effort to save the planet from the devastating effects of human-caused climate change.”
In statements provided by their attorneys, two of the plaintiffs, Kian Tanner and Eva Lighthiser, said they were elated by the judge’s decision.
“Frankly, the elation and joy in my heart is overwhelming in the best way,” Tanner said. “We set the precedent not only for the United States, but for the world.”
“I’m so speechless right now. I’m really just excited and elated and thrilled. I cannot believe the ruling. I’m just so relieved. I feel so grateful to have worked with every single person involved in this,” Lighthiser said.
Seeley wrote in her 103-page order that the MEPA limitation, which prohibits the state from considering greenhouse gas emissions and climate impacts when deciding whether to approve permits for energy and mining projects, violated Montanans’ rights under the 1972 state constitution.
The constitution says that they have a right to a clean and healthful environment and that each Montanan “shall maintain and improve a clean and healthful environment in Montana for present and future generations.”
Seeley also wrote that the state constitution commands the legislature to “provide for the administration and enforcement” to meet the state’s obligation to maintain and improve the environment and provide remedies to prevent its unreasonable depletion and degradation.
“Montana’s climate, environment, and natural resources are unconstitutionally degraded and depleted due to the current atmospheric concentration of GHGs and climate change,” Seeley wrote.
She said that MEPA makes clear the state should use “all practicable means” to fulfill those constitutional responsibilities, and that the law’s limitation, in place since 2011 and tweaked by lawmakers this session in response to a Yellowstone County judge’s order regarding emissions at a plant in Laurel, is failing to meet those constitutional duties.
Seeley wrote, rather, that the MEPA limitation “conflicts with the very purpose of MEPA” in trying to meet those obligations.
“By prohibiting consideration of climate change, (green house gas) emissions, and how additional GHG emissions will contribute to climate change or be consistent with the Montana Constitution, the MEPA Limitation violates Plaintiffs’ right to a clean and healthful environment and is facially unconstitutional,” Seeley wrote in her order.
Further, she said, the state did not put forward any evidence there was a compelling governmental interest in having the limitation in place, and Seeley noted there was undisputed testimony that the state could evaluate greenhouse gas emissions and their impacts, as well as consider switching more energy sources to renewable energy.
She also found a section of law created by the legislature this year through Senate Bill 557 to be unconstitutional. That new portion of law said that a permit approved by a Montana agency that did not include a greenhouse gas emissions evaluation could not be vacated, voided, or delayed unless Congress started regulating carbon dioxide as a pollutant under the federal Clean Air Act.
Both that clause of Senate Bill 557 and House Bill 971 were created by the Republican supermajority in direct response to Judge Michael Moses’ ruling that a NorthWestern Energy power generating station in Laurel could not proceed because the Department of Environmental Quality had failed to consider emissions impacts from the plant. He later vacated the order after the legislature’s moves as the state appealed the ruling to the Montana Supreme Court.
Seeley wrote the newly amended law is unconstitutional “because it eliminates MEPA litigants’ remedies that prevent irreversible degradation of the environment, and it fails to further a compelling state interest.”
Seeley wrote that the state’s authorization of fossil fuel activities without analyzing emissions or climate impacts result in emissions that have caused, and will continue to perpetuate human-caused climate change, and that the state has the authority to alleviate and avoid those climate impacts.
Seeley said the plaintiffs had proven injury because of the state’s failure to consider greenhouse gas emissions and climate change, and noted outright that “every additional ton of GHG emissions exacerbates Plaintiffs’ injuries and risks locking in irreversible climate injuries.”
She wrote that their injuries would only get worse and become irreversible “without science-based actions” to address climate change, that the plaintiffs had proven children are irreversibly harmed by pollution, and that they would continue to suffer injuries “due to the State’s statutorily mandated disregard of climate change in the MEPA limitations, and due to SB 557’s removal of MEPA’s preventative equitable remedies.”
Seeley also wrote that if the state was allowed to consider GHG emissions and climate change during MEPA reviews, those would provide the state with “clear information” it needs to make science-based decisions within the framework of the state constitution and deny permits when they do not conform with those constitutional requirements.
Roger Sullivan, a Kalispell-based attorney who worked for the plaintiffs, said Seeley’s order was “a landmark decision establishing enforceable principles of intergenerational justice. Barbara Chillcott, senior attorney at the Helena-based Western Environmental Law Center, said it was “incredibly gratifying” to learn the judge’s decision.
“This decision sets important precedent for other constitutional climate cases in the U.S., and, most importantly, gives these youth plaintiffs some hope for a better future,” Chillcott said.
The case was originally filed in March 2020, when the plaintiffs were ages 2 to 18. The original version challenged the MEPA limitation as well as the state energy policy – both of which were repealed or modified this past legislative session in response to the lawsuit and the ruling from Moses and Yellowstone County.
After last-minute attempts by the state to keep the case from going to trial failed, Seeley heard five days of testimony in June from 12 of the 16 plaintiffs and how their lives, leisure, health, and cultural traditions, among other things, were being negatively affected by human-caused climate change. In addition to questions over MEPA and other policies, they had sought a declaration that 350 parts per million of carbon dioxide should be a stated standard for the state, though the judge’s order did not go that far.
The plaintiffs called 10 expert witnesses, including a Nobel Prize-winning climate scientist from Montana, other climate analysts, a renewable energy specialist, a state environmental policy expert, a child psychologist, and Native experts who told the court about why the climate was warming, Montana’s outsized contributions to GHG emissions, how easily Montana could move toward using more renewable resources, and how climate change affects the brains and bodies of children.
The state called the director of the Department of Environmental Quality, one of its division directors, and just one of its three expert witnesses to the stand on the sixth day of the trial before resting its case. It did not call to the stand its climate or child psychology experts, but the three expert witnesses in total billed the state nearly $95,000, the Daily Montanan first reported.
Seeley wrote in her order Monday that the testimony of the state’s lone expert witness, Terry Anderson, “was not well-supported, contained errors, and was not given weight by the Court.”
Much of the state’s argument surrounded their stance that MEPA was procedural and not directive, that the permitting statutes are what speak to the constitutional environmental provisions, and that Montana’s greenhouse gas emissions only make up a tiny slice of global emissions and could not have an outsized effect on global greenhouse gas values.
DEQ Director Chris Dorrington made some of these claims during his testimony, and also told the court he “was not deeply familiar” with the work of the Intergovernmental Panel on Climate Change, whose reports were the basis of much of the plaintiffs’ climate experts’ testimony.
The state’s attorneys had also hoped that the legislature’s changes to the MEPA limitation and environmental impact statement law nullified the plaintiffs’ original claims, but Seeley only agreed to dismiss the part of the case involving the repealed state energy policy ahead of the trial.
A spokesperson for the Governor’s Office said the office was reviewing the decision and “evaluating next steps.” The Attorney General’s Office declined to comment to the Daily Montanan but pointed to a statement provided to a news talk radio station.
In a statement the Attorney General’s Office provided to KGVO talk radio, spokesperson Emily Flower said the state would appeal the ruling, calling it “absurd” and saying the trial was “a week-long taxpayer-funded publicity stunt that was supposed to be a trial.”
“Montanans can’t be blamed for changing the climate – even the plaintiffs’ expert witnesses agreed that our state has no impact on the global climate. Their same legal theory has been thrown out of federal court and courts in more than a dozen states,” Flower said. “It should have been here as well, but they found an ideological judge who bent over backward to allow the case to move forward and earn herself a spot in their next documentary.”
Rebecca Harbage, the public policy director for DEQ, said in a statement on behalf of the department: “DEQ’s mission is a to champion a healthy environment for a thriving Montana, and we take that mission seriously. We are currently reviewing the decision.”
Region 8 U.S. Environmental Protection Agency Administrator K.C. Becker called Seeley’s ruling “a landmark moment” in young people’s efforts to protect the earth for future generations.
“Every day the youth in Montana and across their world are watching the impacts of climate change fil their social media feeds as they witness the increased frequency of wildfires and flooding,” Becker said in a statement. “No longer are young people demanding action on the climate crisis from the sidelines – they are successfully advocating for it themselves. They are channeling their feelings of concern and frustration into climate activism. … This decision today sets a precedent for intergenerational accountability and environmental justice, ensuring that the decisions made today positively impact the well-being of tomorrow’s generations.”
Joanie Kresich, the chair of conservation and agriculture organization Northern Plains Resource Council, said in a statement the group, which has held meetings about the Laurel generating station emissions, said it would be watching how the ruling affects other energy projects in Montana that burn fossil fuels and emit greenhouse gasses.
“We will be watching closely to see how this groundbreaking ruling affects prior judicial orders requiring the state of Montana to consider the 23 million tons of climate pollution that NorthWestern Energy’s methane-fired power plant would emit if completed in Laurel,” Kresich said. “This ruling makes it clear that the future prosperity and health of our youth must be considered in all of Montana’s energy decisions.”
Another group, Montana Conservation Voters, said the ruling was a win for Montanans and affirmed the state’s constitutional protections.
“Instead of passing laws that limit our ability to regulate pollution, the state now must consider how its policies affect the health and wellbeing of its citizens and environment,” MCV Executive Director Whitney Tawney said. “The ruling is also a reminder of the importance of Montana’s constitution, and we applaud the brave young Montanans who stood up to protect the rights and freedoms promised to everyone in this state.”
Last week, an attorney with Our Children’s Trust told the Daily Montanan it intended to seek attorneys’ fees and costs should Seeley side with the plaintiffs.
Our Children’s Trust also has a similar case in Hawaii set to go to trial next summer, a federal case that has been allowed to proceed, and other pending cases in Utah and Virginia.
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