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Recent changes to Montana law forbidding the consideration of greenhouse gases in its environmental reviews won’t stop an upcoming trial into whether the state is violating its constitutional duty to safeguard a “clean and healthful environment,” a judge ruled this week.
In the May 23 order, however, Lewis and Clark County District Judge Kathy Seeley did dismiss a portion of the lawsuit that sought to overturn the state’s energy policy. Republican lawmakers repealed the state’s energy policy in the legislative session that ended earlier this month. The plaintiffs challenged the law specifically, Seeley wrote, and she cannot rule on the constitutionality of statute that no longer exists.
The lawsuit was filed in 2020 by attorneys with the environmental group Our Children’s Trust on behalf of 16 young plaintiffs in Montana. They allege the state’s policies of promoting fossil fuels and not regulating greenhouse gas emissions violate their rights to a “clean and healthful environment” under the state constitution.
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Scheduled to begin next month, the trial is believed to be the first of its kind in the country, and will test some of the strongest environmental language found in any state constitution. Some of the youth plaintiffs are set to take the stand, and Our Children’s Trust has also lined up a number of expert witnesses to testify on the science and impacts of climate change.
The lawsuit also takes aim at the state’s laws governing environmental reviews, known as the Montana Environmental Policy Act (MEPA). In response to a separate ruling in another ongoing case, Republican lawmakers last month enacted a major change to the environmental statute.
While the law previously barred state agencies from considering environmental “impacts that are regional, national or global in nature,” the judge in that case found this could still apply to the effects of greenhouse gas emissions within Montana. Republicans sought to address that by amending the law to specifically forbid state agencies from considering “greenhouse gas emissions and corresponding impacts to the climate in the state or beyond the state’s borders.”
The state, along with Gov. Greg Gianforte and several departments and agencies, is being defended in the climate lawsuit by Attorney General Austin Knudsen’s office. Knudsen previously argued that with the recent changes to MEPA under House Bill 971, the Legislature has created “a wholly new statute” and the allegations to the previous version no longer apply.
In her order, Seeley referred to the new version of the law as the “MEPA limitation.”
“On its face, the MEPA limitation appears to conflict with the purpose of MEPA, which is to aid the state in meeting its constitutional obligation to prevent degradation by ‘information the agency and the interested public of environmental impacts that will likely result’ from state actions,” Seeley wrote.
She also rejected the state’s argument that the state has no authority to regulate greenhouse gas emissions.
“The state may not have the power to regulate out-of-state actors that burn Montana coal, but it could consider the effect of burning that coal before permitting a new coal mine,” she wrote. “This court cannot force the state to conduct that analysis, but it can strike down a statute prohibiting it.”
Elsewhere in her order, the district judge also addressed the state’s point that the MEPA changes include exceptions if the federal government decides to mandate the consideration of greenhouse gases.
“The intent of the framers was not to lag behind the federal government in environmental protections, it was to have the strongest constitutional environmental protections in the country,” she said, referring to a 2020 Montana Supreme Court ruling that came to the same conclusion.
The trial, scheduled for 10 days beginning June 12, will require the plaintiffs to show that the impacts of climate change in Montana can be attributed to the state’s use of fossil fuels. They will also need to make the case that a stable climate is included under the state constitution’s environmental provisions, which also tasks the Legislature with protecting “the environmental life-support system from degradation.”
“Based on the plain language of the implicated constitutional provisions, the intent of the framers and Montana Supreme Court precedent,” Seeley wrote, “it would not be absurd to find that a stable climate system is included in the ‘clean and healthful environment’ and ‘environmental life-support system’ contemplated by the framers.”
In a 2021 order, Seeley previously narrowed the scope of the lawsuit. The plaintiffs had initially asked the court to order the state to complete an inventory of emissions caused by fossil fuels and to prescribe a policy for the state to reduce greenhouse gas emissions.
On both of those requests, she found that doing so would “require the court to exceed its authority by overseeing analysis and decision-making that should be left to” the legislative and executive branches.