Roger Sullivan argues on behalf of the plaintiffs in the Held v. Montana case at the Montana Supreme Court on July 10, 2024. (Photo by Blair Miller, Daily Montanan)
The Montana Supreme Court heard oral arguments Wednesday morning in the Held vs. Montana case, as attorneys for 16 Montana youth and for the state, governor, and several agencies engaged with the court on questions about how Montana’s environmental law and permitting processes function, and whether Montana’s forward-looking constitution can nullify laws that do not protect the environment for current and future generations.
Wednesday’s hearing at the Supreme Court comes more than a year after Lewis and Clark County District Court Judge Kathy Seeley heard arguments from the sides during a seven-day trial.
Last August, Seeley struck down the so-called “limitation” to the Montana Environmental Policy Act that prohibited Montana from considering greenhouse gas emissions and climate impacts from energy and mining projects in what the plaintiffs called a landmark victory. The State of Montana, Gov. Greg Gianforte, Department of Environmental Quality, Department of Natural Resources and Conservation, and Department of Transportation appealed the ruling.
In front of hundreds of people that led the court to open an overflow room, the justices peppered attorneys from both sides with questions – two attorneys for the state had 40 minutes to deliver arguments, while the plaintiffs’ attorney had 30 minutes – throughout their presentations.
They asked about the scope of Seeley’s ruling last August, overturning the MEPA limitation, and whether Montana’s constitutional guarantees regarding the environment mean the state must, or simply could, consider emissions and climate impacts from energy projects. Those included some challenges to both sides.
“To redress (the plaintiffs’) climate-based injuries, it would require a stable climate. That would require actions by the state. Challenging MEPA doesn’t get them there because it doesn’t allow agencies to deny or modify a permit,” said attorney Dale Schowengerdt, representing the governor and the three agencies.
“So, you’re saying they would never have standing because if they did challenge a permit, they couldn’t show that that permit alone could impact global climate change?” asked Justice Beth Baker.
Schowengerdt said he believed that should be the case because the state believes climate change is a global issue that Montana cannot solve on its own.
Seeley’s order last August did not order the state to conduct any specific emissions or climate analyses but said the Legislature and governor could not pass laws expressly prohibiting those analyses because it violated the guarantee of a clean and healthful environment in the constitution.
While attorneys for the state had noted that the plaintiffs also previously filed a permit challenge saying they believed Seeley’s order meant the state must consider emissions, several justices told the state’s attorneys that Seeley’s order did no such thing and that the court was not considering telling the state how many tons of carbon dioxide was too much to emit.
“It doesn’t have anything to do with a specific permit; it has to do with whether this aspect of the environment should be considered when evaluating a permit,” said Justice Laurie McKinnon. “Nobody, and in fact, this court refused to implement some sort of plan that set forth the amount or whatever. So, this is a very narrow question.”
The attorneys for the state also told the court – as they had in filings ahead of the hearing – that the federal 9th Circuit Court of Appeals has decided a similar case in Oregon involves a political question and largely dismissed the plaintiffs’ case. They said the Montana Supreme Court should come to a similar conclusion because the ability for courts to rule on climate change is outside of its powers.
“For a district court to rest their entire decision on, especially in a case of this magnitude, I think, it’s a tacit recognition that the court was getting into the political arena,” Stermitz said.
McKinnon responded by saying the district court ruled there can’t be a complete absence of climate and emissions information when considering permits but there wasn’t a direction as to how that information needed to be utilized.
“It’s just that this information should be there, which I think was also the case before the 2011 amendment or limitation was put in the statute. They were considering greenhouse gases,” she said.
Stermitz closed by noting one of the plaintiffs’ expert witnesses at the trial had said that every ton matters and eliminating Montana’s fossil fuel emissions would still be a small slice of the global pie.
“No cars, no power plants, no nothing. And it will not impact the injuries that the plaintiffs are alleging, and that’s an immutable fact because of the nature of the problem. And that’s what’s caused the other courts to dismiss the claims that are similar to this,” he said.
Kalispell-based attorney Roger Sullivan argued on behalf of the plaintiffs, telling the court climate change is an ongoing crisis, that Seeley already ruled that Montana’s environment is being degraded, and that it is incumbent to uphold her ruling because the courts are charged with upholding Montana’s constitution.
“This legislatively imposed double-headed hydra closes the eyes of Montana’s environmental agencies to the most serious environmental crisis Montana has ever experienced – the climate crisis,” Sullivan said. “And it closes Montana’s courthouse doors to those seeking redress from the harms hidden from the agencies’ eyes.”
Sullivan said the state was arguing that neither the state constitution nor Montana Environmental Policy Act provide protections for Montanans because “MEPA is just an empty process, requiring them to check a box.”
Sullivan, Baker and McKinnon had a back-and-forth discussion about the plaintiffs’ injuries and part of Seeley’s order in which she said the state must be able to deny permits when they would cause unconstitutional degradation of the environment “or the permitting statutes themselves must be unconstitutional.”
Sullivan said the permitting statutes, like the Clean Air Act and several others, give agencies control over permitting for fossil fuel activities, and some authorize agencies to establish emission limits to prevent air pollution.
“They have the discretion, and it is a matter of the agency doing the work it has to do. With those impediments removed, then yes, the agencies can move forward and bring their decision-making into constitutional compliance,” Sullivan said.
Justice Jim Shea asked him whether the case was ripe for the court since there was no permit being challenged and whether the plaintiffs were “essentially asking for an advisory opinion as to whether or not this statute is constitutional if and when a permit is being sought.”
Sullivan responded that Montana “is in the midst of a climate crisis right now.”
“Yes. This issue of the constitutionality of the State of Montana, with those prohibitions in terms of agency review of greenhouse gases, they can’t even consider it, nor can they come before the court seeking redress because of the double-headed hydra,” Sullivan said.
Justice Jim Rice pointed out the court recently heard another case about permits for a NorthWestern Energy plant in Laurel that was also challenged under MEPA, which the court has not decided but has previously said is linked with their forthcoming decision in the Held case.
“It’s a MEPA case. The statute was applied there. The challenged statute that you are arguing was there and is argued as unconstitutional in a real case with a real permit. That is lacking here,” Rice said. “And it seems like what you’re trying to do is to obtain here some generic judgment that doesn’t apply to anything in this case.”
McKinnon asked Sullivan why he thought the limitation could be considered outside the context of a permitting challenge and if that was because that involved a constitutional right.
“This is the appropriate mechanism to challenge what is going on impacting these youth plaintiffs and, indeed, all young Montanans now and into the future,” he replied. “It is that dimension of constitutionality that clearly gives them standing to come before this court.”
Several of the plaintiffs and one of the attorneys said at a news conference after the hearing they felt the justices were well-prepared and deeply knowledgeable about the case. They also said they do not believe they need to challenge permitting statutes “piece by piece” in order to ensure their constitutional rights are guaranteed by the state.
“This is an evasion of responsibility. It’s an evasion of your constitutional obligation to protect our rights and our state,” said plaintiff Grace Gibson-Snyder, 20. “So, here’s my question. Why would you not try? Why would you not be one piece of the complex solution to the complex problem?”
by Blair Miller, Daily Montanan
July 10, 2024
by Blair Miller, Daily Montanan
July 10, 2024
The Montana Supreme Court heard oral arguments Wednesday morning in the Held vs. Montana case, as attorneys for 16 Montana youth and for the state, governor, and several agencies engaged with the court on questions about how Montana’s environmental law and permitting processes function, and whether Montana’s forward-looking constitution can nullify laws that do not protect the environment for current and future generations.
Wednesday’s hearing at the Supreme Court comes more than a year after Lewis and Clark County District Court Judge Kathy Seeley heard arguments from the sides during a seven-day trial.
Last August, Seeley struck down the so-called “limitation” to the Montana Environmental Policy Act that prohibited Montana from considering greenhouse gas emissions and climate impacts from energy and mining projects in what the plaintiffs called a landmark victory. The State of Montana, Gov. Greg Gianforte, Department of Environmental Quality, Department of Natural Resources and Conservation, and Department of Transportation appealed the ruling.
In front of hundreds of people that led the court to open an overflow room, the justices peppered attorneys from both sides with questions – two attorneys for the state had 40 minutes to deliver arguments, while the plaintiffs’ attorney had 30 minutes – throughout their presentations.
They asked about the scope of Seeley’s ruling last August, overturning the MEPA limitation, and whether Montana’s constitutional guarantees regarding the environment mean the state must, or simply could, consider emissions and climate impacts from energy projects. Those included some challenges to both sides.
“To redress (the plaintiffs’) climate-based injuries, it would require a stable climate. That would require actions by the state. Challenging MEPA doesn’t get them there because it doesn’t allow agencies to deny or modify a permit,” said attorney Dale Schowengerdt, representing the governor and the three agencies.
“So, you’re saying they would never have standing because if they did challenge a permit, they couldn’t show that that permit alone could impact global climate change?” asked Justice Beth Baker.
Schowengerdt said he believed that should be the case because the state believes climate change is a global issue that Montana cannot solve on its own.
Seeley’s order last August did not order the state to conduct any specific emissions or climate analyses but said the Legislature and governor could not pass laws expressly prohibiting those analyses because it violated the guarantee of a clean and healthful environment in the constitution.
While attorneys for the state had noted that the plaintiffs also previously filed a permit challenge saying they believed Seeley’s order meant the state must consider emissions, several justices told the state’s attorneys that Seeley’s order did no such thing and that the court was not considering telling the state how many tons of carbon dioxide was too much to emit.
“It doesn’t have anything to do with a specific permit; it has to do with whether this aspect of the environment should be considered when evaluating a permit,” said Justice Laurie McKinnon. “Nobody, and in fact, this court refused to implement some sort of plan that set forth the amount or whatever. So, this is a very narrow question.”
The attorneys for the state also told the court – as they had in filings ahead of the hearing – that the federal 9th Circuit Court of Appeals has decided a similar case in Oregon involves a political question and largely dismissed the plaintiffs’ case. They said the Montana Supreme Court should come to a similar conclusion because the ability for courts to rule on climate change is outside of its powers.
“For a district court to rest their entire decision on, especially in a case of this magnitude, I think, it’s a tacit recognition that the court was getting into the political arena,” Stermitz said.
McKinnon responded by saying the district court ruled there can’t be a complete absence of climate and emissions information when considering permits but there wasn’t a direction as to how that information needed to be utilized.
“It’s just that this information should be there, which I think was also the case before the 2011 amendment or limitation was put in the statute. They were considering greenhouse gases,” she said.
Stermitz closed by noting one of the plaintiffs’ expert witnesses at the trial had said that every ton matters and eliminating Montana’s fossil fuel emissions would still be a small slice of the global pie.
“No cars, no power plants, no nothing. And it will not impact the injuries that the plaintiffs are alleging, and that’s an immutable fact because of the nature of the problem. And that’s what’s caused the other courts to dismiss the claims that are similar to this,” he said.
Kalispell-based attorney Roger Sullivan argued on behalf of the plaintiffs, telling the court climate change is an ongoing crisis, that Seeley already ruled that Montana’s environment is being degraded, and that it is incumbent to uphold her ruling because the courts are charged with upholding Montana’s constitution.
“This legislatively imposed double-headed hydra closes the eyes of Montana’s environmental agencies to the most serious environmental crisis Montana has ever experienced – the climate crisis,” Sullivan said. “And it closes Montana’s courthouse doors to those seeking redress from the harms hidden from the agencies’ eyes.”
Sullivan said the state was arguing that neither the state constitution nor Montana Environmental Policy Act provide protections for Montanans because “MEPA is just an empty process, requiring them to check a box.”
Sullivan, Baker and McKinnon had a back-and-forth discussion about the plaintiffs’ injuries and part of Seeley’s order in which she said the state must be able to deny permits when they would cause unconstitutional degradation of the environment “or the permitting statutes themselves must be unconstitutional.”
Sullivan said the permitting statutes, like the Clean Air Act and several others, give agencies control over permitting for fossil fuel activities, and some authorize agencies to establish emission limits to prevent air pollution.
“They have the discretion, and it is a matter of the agency doing the work it has to do. With those impediments removed, then yes, the agencies can move forward and bring their decision-making into constitutional compliance,” Sullivan said.
Justice Jim Shea asked him whether the case was ripe for the court since there was no permit being challenged and whether the plaintiffs were “essentially asking for an advisory opinion as to whether or not this statute is constitutional if and when a permit is being sought.”
Sullivan responded that Montana “is in the midst of a climate crisis right now.”
“Yes. This issue of the constitutionality of the State of Montana, with those prohibitions in terms of agency review of greenhouse gases, they can’t even consider it, nor can they come before the court seeking redress because of the double-headed hydra,” Sullivan said.
Justice Jim Rice pointed out the court recently heard another case about permits for a NorthWestern Energy plant in Laurel that was also challenged under MEPA, which the court has not decided but has previously said is linked with their forthcoming decision in the Held case.
“It’s a MEPA case. The statute was applied there. The challenged statute that you are arguing was there and is argued as unconstitutional in a real case with a real permit. That is lacking here,” Rice said. “And it seems like what you’re trying to do is to obtain here some generic judgment that doesn’t apply to anything in this case.”
McKinnon asked Sullivan why he thought the limitation could be considered outside the context of a permitting challenge and if that was because that involved a constitutional right.
“This is the appropriate mechanism to challenge what is going on impacting these youth plaintiffs and, indeed, all young Montanans now and into the future,” he replied. “It is that dimension of constitutionality that clearly gives them standing to come before this court.”
Several of the plaintiffs and one of the attorneys said at a news conference after the hearing they felt the justices were well-prepared and deeply knowledgeable about the case. They also said they do not believe they need to challenge permitting statutes “piece by piece” in order to ensure their constitutional rights are guaranteed by the state.
“This is an evasion of responsibility. It’s an evasion of your constitutional obligation to protect our rights and our state,” said plaintiff Grace Gibson-Snyder, 20. “So, here’s my question. Why would you not try? Why would you not be one piece of the complex solution to the complex problem?”
Daily Montanan is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Daily Montanan maintains editorial independence. Contact Editor Darrell Ehrlick for questions: info@dailymontanan.com. Follow Daily Montanan on Facebook and X.
Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our website. AP and Getty images may not be republished. Please see our republishing guidelines for use of any other photos and graphics.
Blair Miller is a reporter based in Helena who primarily covers government, climate and courts. He’s been a journalist for more than 12 years, previously based in Denver, Albuquerque and mid-Missouri.
Daily Montanan is part of States Newsroom, the nation’s largest state-focused nonprofit news organization.
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© Daily Montanan, 2024
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The Daily Montanan is a nonprofit, nonpartisan source for trusted news, commentary and insight into statewide policy and politics beneath the Big Sky.
We’re part of States Newsroom, the nation’s largest state-focused nonprofit news organization.
Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our website. (See full republishing guidelines.)
© Daily Montanan, 2024