The Montana Supreme Court will hear oral arguments next Wednesday in the state’s appeal of a district court judge’s decision in the Held vs. Montana case, setting the stage for a decision that will have broad impacts on environmental law and regulations in Montana.

Considering the arguments from both sides, and additional briefs from Republican-led states and recreation businesses like Orvis and Patagonia, the court will have to decide whether to uphold Lewis and Clark County District Court Judge Kathy Seeley’s order from last August finding the state was violating the constitutional rights of the 16 youth plaintiffs to a clean and healthful environment.

Seeley’s order struck down the so-called “limitation” to the Montana Environmental Policy Act that prohibited the state from considering greenhouse gas emissions and climate impacts from energy and mining projects.

She also enjoined a portion of another bill passed by Republican lawmakers last year that said permits approved by Montana agencies that did not include a greenhouse gas emissions evaluation could not be vacated or voided unless Congress voted to start regulating carbon dioxide as a pollutant under the federal Clean Air Act.

Attorneys representing the state, Gov. Greg Gianforte, and three state agencies will get 40 minutes to make their case to the justice, while attorneys for the youth plaintiffs will have 30 minutes. The hearing will be held in the Supreme Court chambers in Helena and start at 9:30 a.m.

The Montana Environmental Information Center and other Montana environmental groups are also hosting watch parties of the oral arguments, which will be live streamed online, in Missoula, Billings and Kalispell.

What the two sides and their supporters are arguing

The youth plaintiffs in the case filed their response to the state’s appeal in March, and the case was fully briefed in April when attorneys for the state, Gianforte, and the state agencies filed their replies. About 20 separate amicus curiae, or “friend of the court” briefs have been filed in the case either in support of the youth plaintiffs or the state that the Supreme Court can also consider when deciding the case.

Lawyers for the state, governor and agencies have maintained since Seeley handed her decision down that striking down the MEPA limitation does not alleviate the plaintiffs’ injuries because Montana’s greenhouse gas emissions are a small fraction of global emissions, which all affect Montana and the global climate.

The defendants are also asking the Supreme Court to clarify that Seeley’s order does not require the state to perform emissions and climate impact analyses but simply provides the opportunity for them to do so if the Legislature decides to follow that route.

The Supreme Court received friend-of-the-court briefs in support of the state from the Republican-led chambers of the Montana Legislature, the Montana Chamber of Commerce and several local chambers, NorthWestern Energy, conservative think-tank Frontier Institute, the mining company association Treasure State Resources, 12 Republican-led states, and a Navajo Nation company that owns the Spring Creek Mine in Decker.

Most of those briefs, like those from the state, argue that the plaintiffs do not have standing in the case, that Seeley used the wrong level of scrutiny in deciding the case, utilized one-sided data from the plaintiffs’ expert witnesses that the state did not contest at trial, or that the judiciary was wrongfully stepping into the realm of the Legislature when interpreting laws that intersect with principles of the state constitution.

“The Judiciary’s constitutional authority does not allow the district court to determine how The Legislature should provide for the promise of a ‘clean and healthful environment’ under Mont. Const. Art. II and IX,” Senate President Jason Ellsworth and House Speaker Matt Regier’s attorney wrote in their brief, for instance.

The plaintiffs’ attorneys will argue that the Supreme Court should uphold Seeley’s order in full, which would permanently keep the MEPA limitation out of Montana law, as well as the portion surrounding permit reviews and when permits could be vacated.

Their attorneys say Seeley was correct when she found that the state’s actions prohibiting emissions and climate impact reviews were in direct violation of the 1972 Constitution’s intents to protect the environment in Montana for current and future generations.

They say attorneys for the state have purposefully tried to focus the case around the global impacts of climate change when Montana’s constitution directly concerns the state’s environment and impacts to it caused by the state’s consistent permitting of high-emissions energy projects.

“Accepting any of the state’s (or their amici’s) belated factual or constitutional arguments would eviscerate the purpose of MEPA, young Montanans’ rights to a clean and healthful environment today and well into the future, and the very idea of an independent judiciary that reviews government laws for constitutional compliance and defers to the District Court’s factual findings but for clear error,” the plaintiffs’ attorneys said in their March brief.

The friend-of-the-court briefs filed on the side of the plaintiffs come from a group of professional climbers, runners and mountain guides in Montana; six Montana tribes, a group of public health experts and doctors from Montana and other states, the ACLU and ACLU of Montana, a group of tribal members and conservation groups, a group of outdoor recreation companies that includes Patagonia and Orvis.

“Because the MEPA Limitation allows Montana to avoid its constitutional responsibility to protect a clean and healthy environment, and because that derogation of constitutional duty is already having profound negative impacts on the outdoor industry in Montana, this court should uphold the district court’s order and strike down the MEPA limitation,” the brief from the outdoor recreation companies said.

There are also friend-of-the-court briefs the court can consider from six retired Montana Supreme Court justices who make arguments in support of the judiciary’s role in determining what laws are constitutional or not, as well as from the Montana Trial Lawyers Association, which argues Seeley was correct in not allowing the state to conduct mental health examinations of the 16 plaintiffs before last summer’s trial.

The former justices in their brief ask the Supreme Court to “emphatically stress” the importance of the separation of powers in government.

“The separation of powers principle secures our republican form of government. It is well established in Montana jurisprudence. In recent years, however, repeated attempts have been made to abridge long-settled elements of the judicial power,” they wrote. “The present case involves another such attempt.”

Recent court decisions could factor into case

It’s also possible that some recent court decisions at the federal U.S. Ninth Circuit Court of Appeals and in other states could be a factor in Wednesday’s arguments. Both sides have submitted notices of supplemental authority informing the court of recent decisions that could factor into the Held case.

That includes filings from the plaintiffs about another case decided by the Supreme Court in which courts found election laws created by the Legislature were unconstitutional, and another in which the Supreme Court used similar standing requirements as Seeley did in Held and also found it could not hear new arguments first raised on the appeal.

A third notice tells the court about a similar case in Hawaii which the plaintiffs’ primary attorneys, Our Children’s Trust, led to a favorable settlement with the state in late June. Hawaii’s constitution has similar environmental protection requirements as Montana’s, and the plaintiffs said the state was violating their constitutional rights because the state Department of Transportation continued to prioritize highways over other transportation modes that emit less greenhouse gases.

The settlement will involve the state establishing a new greenhouse gas reduction plan, a roadmap to decarbonizing the state’s transportation system, and tens of million dollars to go toward building green infrastructure.

The state, meanwhile, told the court that the 9^th Circuit Court of Appeals had again dismissed a similar Oregon case for a lack of standing, and there was a similar dismissal in a California case challenging the U.S. Environmental Protection Agency.

“Relevant to this appeal, the district court rejected the plaintiffs’ contentions that declaring the challenged EPA policies unconstitutional would redress the plaintiffs’ climate change injuries,” attorneys for the state wrote in the filing.

The court’s decision in the Held case will also factor into its decision in a case involving the fate of NorthWestern Energy’s methane-fired power plant in Laurel and whether it was properly granted permits despite the state not considering its expected emissions of 700,000 tons of carbon dioxide a year. The Supreme Court heard oral arguments in that case on May 15.

Both cases are expected to see decisions issued later this summer or fall ahead of the November election and the January start to the 2025 legislative session, where there is sure to be more legislation introduced surrounding MEPA and climate analyses depending on the outcome, lawmakers have said during the interim.

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