The Montana Supreme Court on Wednesday upheld a district court ruling in the nation’s first constitutional climate change trial , affirming that the youth plaintiffs have a “fundamental constitutional right to a clean and healthful environment” while revoking two Montana statutes.
The 70-page decision, authored by Chief Justice Mike McGrath, comes 16 months after Lewis and Clark District Court Judge Kathy Seeley ruled in the landmark Held v. Montana lawsuit, explicitly stating that the state’s greenhouse gas emissions are “proven to be a substantial factor in causing climate impacts to Montana’s environment, and harm and injury to the youth plaintiffs.” Seeley’s decision also rolled back two laws enacted by the 2023 legislature that changed the Montana Environmental Policy Act.
The state immediately appealed the decision to the Montana Supreme Court, which heard oral arguments in the appeal in July. The court found in a 6-to-1 decision that Montana’s constitutional guarantee of a “clean and healthful environment” includes a stable climate system, “which is clearly within the object and true principles of the Framers inclusion of the right.”
“Plaintiffs showed at trial—without dispute—that climate change is harming Montana’s environmental life support system now and with increasing severity for the foreseeable future,” the order states. “Plaintiffs showed that climate change does impact the clear, unpolluted air of the Bob Marshall wilderness; it does impact the availability of clear water and clear air in the Bull Mountains; and it does exacerbate the wildfire stench in Missoula, along with the rest of the State.”
The six-justice majority found the law which limited analysis of greenhouse gas emissions during environmental reviews violates the Montana Constitution’s “right to a clean and healthful environment,” and enjoined the state from acting on it.
Justice Jim Rice dissented.
The lawsuit, the first of its kind to reach trial, was filed by 16 youth plaintiffs from across Montana who alleged the state violated their constitutional right to a clean and healthful environment by promoting the fossil fuel industry and exacerbating the effects of climate change.
“This ruling is a victory not just for us, but for every young person whose future is threatened by climate change. We have been heard, and today the Montana Supreme Court has affirmed that our rights to a safe and healthy climate cannot be ignored,” lead plaintiff Rikki Held said in a statement.
Our Children’s Trust and the Western Environmental Law Center, which represented the youth plaintiffs in the case, said in a news release they hoped the ruling would be fully implemented, and if that does not happen, they would be prepared to take further legal action to ensure the state is complying.
“This ruling clarifies that the Constitution sets a clear directive for Montana to reduce its greenhouse gas emissions, which are among the highest in the nation on a per capita basis, and to transition to a clean, renewable energy future,” Western Environmental Law Center attorney Melissa Hornbein said in a statement.
Montana’s Republican Gov. Greg Gianforte said in a statement the state is reviewing the decision but that he believes it will lead to “perpetual lawsuits” that will “waste taxpayer dollars and drive up energy bills” for Montanans. He also accused the court, which interprets whether laws made by the Legislature are constitutional when they are challenged, of making policy outside of its purview.
“This Court continues to step outside of its lane to tread on the right of the Legislature, the elected representatives of the people, to make policy,” Gianforte said. “This decision does nothing more than declare open season on Montana’s all-of-the-above-approach to energy, which is key to providing affordable and reliable energy to homes, schools, and businesses across our state.”
Right to a clean and healthful environment
Following Judge Seeley’s 2023 ruling, the defendants — including the state departments of Environmental Quality, Natural Resources and Conservation and Transportation — appealed to the Montana Supreme Court.
The state asked the appellate justices to review four issues: Whether the Montana Constitution’s guarantee of a clean and healthful environment includes a “stable climate system that sustains human lives and liberties;” whether the youth plaintiffs had standing to bring the initial lawsuit; whether the MEPA limitation is unconstitutional; and whether the district court abused its discretion by denying a state request for psychiatric examination of the plaintiffs.
Delegates to the 1972 constitutional convention were overwhelmingly in favor of increasing environmental protections for Montana. The language in Article IX of the Montana Constitution — “The state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations” — came about “hours and hours of debate, rethinking, restructuring, political maneuvering and numerous votes,” recalled constitutional delegate Mae Nan Ellingson.
The majority’s opinion drew heavily on transcripts of the debates from the constitutional convention in their opinion.
The state argued that because the framers used Montana-specific examples of a clean environment — such as the clear, unpolluted air near the Bob Marshall Wilderness — instead of specifically discussing climate change or other global issues when adopting the environmental rights, they “could not have intended to include an environment undegraded from the effects of climate change,” according to court documents.
The court disagreed, citing Seeley’s findings of fact that greenhouse gas emissions have specific effects within the state, “drastically altering and degrading Montana’s climate, rivers, lakes, groundwater, atmospheric waters, forests, glaciers, fish, wildlife, air quality, and ecosystem.”
“We reject the argument that the delegates—intending the strongest, all-encompassing environmental protections in the nation, both anticipatory and preventative, for present and future generations—would grant the State a free pass to pollute the Montana environment just because the rest of the world insisted on doing so,” the opinion states. “The District Court’s conclusion of law is affirmed: Montana’s right to a clean and healthful environment and environmental life support system includes a stable climate system, which is clearly within the object and true principles of the Framers inclusion of the right to a clean and healthful environment.”
In the matter of standing, which addresses whether the youth had the legal right to bring the case, the state argued the youth stories of harm from climate change impacts were not “legally unique” nor “distinguishable from the general public at large,” and thereby do not meet the threshold for bringing the constitutional lawsuit.
However, the court disagreed, citing a previous ruling made by the Montana Supreme Court that plaintiffs alleging constitutional harm do not have to distinguish their harm from that of the general public.
“Holding that there is no sufficient injury for any Montanan to bring a claim asserting their constitutional right to a clean and healthful environment just because every Montanan is harmed by climate change” would be a misapplication of standing, according to the court’s majority.
The court also considered the argument that to have standing, plaintiffs must show that legal relief will alleviate their injuries. Lawyers for the state argued that because climate change is a global problem, whereas Montana’s contribution to global greenhouse gas emission is comparatively negligible, “no single judicial action in Montana can meaningfully reduce climate change, and thus redress Plaintiffs’ injuries.”
However, the court rejected that notion, stating it could potentially “immunize the state from litigation” for similar constitutional claims, and citing a Massachusetts case that acknowledged “a reduction in domestic emissions would slow the pace of global emissions increases, no matter what happens elsewhere.”
The court opinion also summarized the myriad stories told by the 16 youth plaintiffs during the two-week district court trial last summer, indicating that their collective “athletic, recreational and economic injuries,” give them sufficient personal standing in the case.
“I was really pleased to see that the Montana Supreme Court grounded its analysis of harm in the testimony of the youth plaintiffs,” Roger Sullivan, an attorney with McGarvey Law in Kalispell who represented the plaintiffs, told the Daily Montanan. “It specifically mentioned the impacts on the working ranches in Montana, on the diminishment of the recreational opportunities the youth plaintiffs can experience, of the harm that comes from breathing in the smoke that annually descends on our valley. I was pleased to see they got both the harm these youth plaintiffs are experiencing, the cause of it as a result of fossil fuels being collected and combusted, and that Montana is one of the actors in this global phenomenon.”
Court affirms that MEPA limitation is unconstitutional
The court majority also agreed that Seeley’s decision that the limitation to Montana Environmental Policy Act, which was initially put into law by the 2011 Legislature but tweaked again by Republicans in the 2023 Legislature, was unconstitutional.
The limitation originally said that environmental reviews of energy projects could not include environmental impacts those projects would create outside of Montana unless required by a federal agency or state law.
The Republicans in the 2023 Legislature passed a bill ahead of the Held vs. Montana trial and partially in response to a Yellowstone County judge’s decision regarding the greenhouse gas emissions of a NorthWestern Energy plant in Laurel.
The new version passed and signed into law by Republican Gov. Greg Gianforte changed the limitation’s wording to say an environmental review for energy project permits cannot evaluate greenhouse gas emissions or their impacts to the climate either inside or outside of Montana unless Congress amends the Clean Air Act to regulate carbon dioxide emissions.
Throughout the Held case, the state has made the argument that MEPA is procedural in nature and that the underlying permitting statutes are what uphold the constitutional provisions requiring a clean and healthful environment.
In Wednesday’s majority opinion, the court said while MEPA may be procedural, that word “of course, does not mean ‘unimportant.’”
“Here, the State’s argument that (greenhouse gas) emissions do not have a ‘reasonably close causal relationship’ to permitting a coal mine or an electrical generation plant—both of which need a permit under the Clean Air Act under the agreed facts in District Court—is disingenuous at best,” the opinion says.
The court addressed the state’s argument that a single Montana project’s greenhouse gas emissions are insignificant on a global scale, writing that just because that may be the case, that does not mean the emissions will not affect the environment or result in degradation to it in violation of the state constitution.
The court offered a theoretical example as to why that argument from the state was not accepted. It said doing so would be akin to not regulating any selenium pollution from mines in Montana that drain into Lake Koocanusa simply because 95% of the selenium that enters the lake comes from Canadian coal mines.
“The fact that climate change impacts extend beyond Montana’s borders, as does selenium pollution and other environmental harms, does not allow the State to disregard its contributions to environmental degradation within Montana,” the court wrote.
The majority opinion says a clean and healthful environment cannot exist unless the state can make “adequately informed decisions.” It also says that the plaintiffs could not be aware of how energy projects might affect the environment if the Legislature “forecloses an entire area of review proven to be harmful” to the environment, and that the Legislature cannot know whether it should make more law to better address climate change if impacts from state actions cannot be reviewed.
“Foreclosing environmental review of (greenhouse gas) emissions under MEPA prevents state agencies from using any information garnered during this process to inform and strengthen substantive permitting or regulatory decisions or any mutual mitigation measures or alternatives that might be considered when the environmental harms of the proposed project are fully understood,” the court wrote.
“The MEPA Limitation arbitrarily excludes all activities from review of cumulative or secondary impacts from review of cumulative or secondary impacts from (greenhouse gas emission) without regard to the nature or volume of the emissions absent a requirement by federal law.”
Thus, the court wrote, the MEPA limitation is unconstitutional and permanently stopped. However, the court added that its decision only means the Constitution does not allow for the Legislature to prohibit environmental reviews from evaluating those emissions, and wrote that “other issues will be discussed in the context of specific permitting cases.”
Rice dissents while Republicans accuse Supreme Court of legislating from the bench
Justice Dirk Sandefur wrote a separate concurrence in which he agreed with “the Court’s ultimate issue holdings in this case.” But he said the majority did not address how MEPA reviews and projects that would otherwise comply with state and federal regulations could be considered in the face of global warming
He said he believed that even eliminating all fossil fuel projects in Montana could not reduce the injuries to the plaintiffs, which he said were shared by everyone in Montana and “inhabitants of planet earth” because of climate change’s global nature.
Sandefur wrote that it is undisputed that climate change is harming Montana’s environmental life support system but that the majority’s focus on that was “no more than a political and public policy statement of the obvious.”
He said while he still had questions about judicial standing for the plaintiffs, he agreed they at least had “minimally sufficient” standing to make their claims and agreed that the Legislature’s limitation to MEPA were unconstitutional. He also criticized the state’s request at the district court level to conduct psychiatric evaluations of eight of the plaintiffs, a request that Seeley denied but which the state appealed, “patently ridiculous and overly intrusive.”
Rice’s dissent rested almost solely on the question of whether the plaintiffs had standing in the case, and he largely agreed with the state’s arguments that they did not because he said the state took no action to directly injure the plaintiffs.
“An alleged injury cannot be a theoretical observation that the challenged MEPA framework is insufficient; rather, for standing purposes, a concrete current or impending violation of the constitutional right to a clean and healthful environment—the injury—by way of the government’s application of the framework to the Plaintiffs—the cause—is required,” Rice wrote.
He warned that not only did the majority’s holding open the door for “ad hoc judicial natural resources management,” and warned it could be viewed as legislating from the bench.
“The Court’s thumps (sic) up or thumbs down decisions in response to such lawsuits will truly allow the Court to act as an ad hoc legislative body for policy ideas never directly applied in a concrete way to the litigants,” Rice wrote.
Incoming Senate President Matt Regier, R-Kalispell, and incoming House Speaker Brandon Ler, R-Savage, issued a joint statement telling the court to “buckle up” for the upcoming session. Republicans plan to bring forth dozens of bills attempting to strip power away from the Supreme Court and judiciary branch, and others that attempt to make a more conservative court possible, following years of displeasure with the court’s rulings that have largely gone against their wishes. They, too, maintained the court was stepping on their powers.
“The Montana Supreme Court turned the courtroom into a legislative policy committee, drastically overstepping its constitutional boundaries into the Legislature’s role and violating the separation of powers,” Regier and Ler said in the statement. “Montanans will continue to suffer decades of economic and social harm if we don’t turn our activist and overreaching courts around.”
The plaintiffs said they are happy and hopeful that the court’s decision is now forever in the record despite what one of them, Grace Gibson-Snyder, called “rhetoric of denial” from Montana’s Republican leadership.
“Despite the incompetence and disrespect of our state government towards our shining light of a constitution, justice and hope prevails,” plaintiff Lander Busse added in an interview. “This decision should be a beacon of hope for those across the globe who see the impacts of a man made changing climate every day, and a cornerstone of judicial achievement for what makes our state the last best place.”
Opinion – Published
