After my recent writings about COVID and Donald Trump’s continuing efforts to remake America as an autocracy, and, of course, GE’s and EPA’s joint commitment to burden Lee with a massive PCB dump, I was determined to write about something that offered hope, and a reason to celebrate.
I remembered the story about a group of young people in Montana taking their state to court for failing to adequately address the climate crisis. Montana has a special place in my heart. On a few occasions—too many years ago—I spent a bit of time in the place I have always considered the most beautiful in America: Glacier National Park:
I realize now that I was extraordinarily lucky to see Glacier when there were actual glorious glaciers. So, to me, there is no battle that makes more sense than fighting as hard as possible to protect that special space.
Little did I know that this case, through its many twists and turns, would prove to be historic and that the mighty powers that be in Montana would gather every political weapon at their disposal to counter the claims of 16 young people. I am sure you won’t be surprised to discover, as I did, that trying to sue to save Mother Earth is never easy.
Montana, like much of the West, has been battered by extreme weather for a while now, from bitter cold to fiercely destructive forest fires. And another of Montana’s natural treasures, Yellowstone, was hit with terrible and historic flooding in 2022.
A month later, temperatures in much of Montana surged. Great Falls National Weather Service meteorologist Robert Hart told Montana Public Radio (MTPR) that July 2022 brought with it multiple weeks of wall-to-wall severe thunderstorm watches: “‘Those storms gave way to a period of record-setting heat in central and western Montana in July and August.’ Hart says Great Falls recorded its all-time latest day of 100-degree heat in September.” Flooding, searing heat, then “winter arrived early with widespread snowfall across the state in late October,” as MTPR explains. “The cold snap just before Christmas last week sent temperatures to rock-bottom. Bozeman posted -45 degrees — just one degree warmer than its all-time low in 1983.”
Our Children’s Trust calls itself “the world’s only not-for-profit law firm representing young people and their legal right to a safe climate.” And on, March 13, 2020, they helped to make Held v. State of Montana happen. The plaintiffs were Rikki Held, Lander B., Badge B., Sariel S., Kian T., Georgianna F., Kathryn Grace S., Eva L, Mika K., Olivia V., Jeffrey K., Nathaniel K., Claire V., Ruby D., Lillian D., and Taleah H.
And the defendants were the State of Montana, Governor Steve Bullock, Montana Department of Environmental Quality, Montana Department of Natural Resources and Conservation, Montana Department of Transportation, and Montana Public Service Commission.
The complaint states:
“The Youth Plaintiffs to this proceeding are children and youth in Montana, between the ages of two (2) and eighteen (18), who have been and will continue to be harmed by the dangerous impacts of fossil fuels and the climate crisis. Children are uniquely vulnerable to the consequences of the climate crisis, which harms Youth Plaintiffs’ physical and psychological health and safety, interferes with family and cultural foundations and integrity, and causes economic deprivations. The climate crisis is degrading and depleting Montana’s unique and precious environment and natural resources, which the Youth Plaintiffs depend on for their safety and survival … Defendants are governmental entities that have created and implemented a long-standing fossil-fuel based state energy system that contributes to dangerous climate disruption in violation of Youth Plaintiffs’ constitutional rights …” (Emphasis added.)
Though all the plaintiffs cherish the natural beauty of their Montana homes, they have grown up in a state steered by powerful interests in the energy industry. Not surprisingly, Held v. Montana sparked a major political battle. Amanda Eggert offered some vital context in Flathead Beacon: “Montana Lawmakers Double Down on Fossil Fuels in 2023 … How the recent legislative session passed a slew of laws that highlight lawmakers’ energy priorities, and took direct aim at the pivotal case, Held v. Montana.”
Eggert explains:
“Montana has a long history of supplying this country — and others — with heaps of raw material to generate and transmit electricity. Those natural resources include the Powder River Basin’s coal seams, the Bakken Formation’s oil and gas reservoirs, and Butte’s vast copper deposits. On the one hand, the Treasure State’s extraction of heavy metals and hydrocarbons has resulted in a grim environmental legacy, which includes the Berkeley Pit, a textbook remediation failure so toxic that in 2016 it killed thousands of migrating snow geese in a matter of days. On the other hand, that legacy has also helped engender some of the strongest constitutional protections for the environment in the country.
“In 1972, 100 delegates rewrote Montana’s constitution to include the preservation of a ‘clean and healthful environment’ for ‘present and future generations.’”
As the Flathead Beacon notes:
“[T]he uneasy interplay between all of that subsurface wealth and Montana’s constitutional directives came into focus as the Republican-controlled Legislature passed industry-friendly measures intended to keep coal — and other fossil fuels — king in the Treasure State. Additionally, two measures passed by the Legislature’s first dual-house supermajority in a century have profound implications for Held v. Montana, the first youth climate lawsuit in the country to go to trial … [One] explicitly bars state agencies from including the analysis of greenhouse gas emissions or climate-related impacts in environmental reviews … The other bill repeals the entirety of the Montana Energy Policy, a fossil-fuel-heavy energy vision for Montana that forms a central component of the plaintiffs’ claims.” (Emphasis added.)
In simple terms, you can’t challenge decisions based on greenhouse emissions or the impacts such decisions might have on climate in Montana or beyond.
Luckily, the young people had Article II, Declaration of Rights of the Constitution of the State of Montana to rely upon:
Sam Bookman at the Harvard Environmental and Energy Law Program explains the centrality of Article II:
“Such a right is found only in a handful of other state constitutions … and in 1999 the Montana Supreme Court held that the right is a ‘fundamental right.’ This means that individuals and NGOs can bring suits directly challenging state laws that allegedly violate this right. It also means that when there is a law, rule, or policy abridging that right, courts will review those laws with deep skepticism, using a standard of review called ‘strict scrutiny.’ Under strict scrutiny, the government must show … that the law is written as precisely as possible to avoid infringing upon the protected right. The right, however, had never been applied in the context of climate change.”
It is difficult to imagine a clearer example of the extraordinary gap between the young people desperate for a robust, rational response to the climate crisis, and the powers that be who profit from the very energy policy that will doom generations to come.
In its April 24, 2020 “Defendants’ Brief in Support of Motion to Dismiss,” the State argues that the young people lack standing to sue: “Case-or-controversy standing limits courts to deciding actual, redressable controversies … Prudential standing confines the courts to a role consistent with the separation of powers and prevents them from addressing political questions.” (Emphasis added.) The state implies that these aren’t controversies that can be addressed and solved with science and appropriate environmental mitigation, but are merely questions of differing politics.
The State argues: “(1) ‘the complaining party must clearly allege past, present, or threatened injury to a property or civil right,’ and (2) ‘the alleged injury must be: concrete, meaning actual or imminent, and not abstract, conjectural, or hypothetical; redressable; and distinguishable from injury to the public generally.’” (Emphasis added.)
The State asserts that “a plaintiff ‘must show that he has sustained, or is in immediate danger of sustaining some direct injury … and not merely that he suffers in some indefinite way in common with people generally.’”
On May 29, 2020, the plaintiffs responded:
“Youth Plaintiffs are already experiencing direct injuries as a result of Defendants’ conduct … which include injuries to ‘Youth Plaintiffs’ physical and psychological health and safety, harm to property, economic deprivations, interference with family and cultural foundations, and reduced access to Montana’s constitutionally protected natural resources … As children, Youth Plaintiffs cannot vote or rely on the political process to protect their rights — they are uniquely vulnerable and politically powerless. Appropriately, they are turning to the judiciary, as ‘one of the bulwarks of American liberty,’ to protect their constitutional rights …
“Defendants take the untenable position that this Court is without any authority to remedy their injuries and prevent ongoing constitutional deprivations. On the contrary, when fundamental constitutional rights are violated, Montana’s courts serve as ‘the final guardian and protector’ of those rights and must ‘assure that the system[s] enacted by the Legislature enforce[], protect, and fulfill[] th[ose] right[s].’”
In her August 4, 2021 “Order on Motion to Dismiss,” Judge Seeley referenced the federal case Juliana v. United States, where 21 youths claimed that the federal government violated their Fifth Amendment due process rights to a life-sustaining climate system.
She wrote:
“In Juliana, the Ninth Circuit agreed that the plaintiffs established the causation element of standing … The Ninth Circuit stated that ‘carbon emissions from fossil fuel production, extraction, and transportation’ caused the plaintiffs’ injuries … Further, federal action continues to increase those emissions … Accordingly, at the minimum, a genuine factual dispute existed ‘as to whether those polices were a “substantial factor” in causing the plaintiffs’ injuries.’
“Similar to Juliana, Youth Plaintiffs have met their burden to establish causation … Youth Plaintiffs need only show that a set of facts demonstrate that the unconstitutional State Energy Policy and MEPA Climate Change Exception were a substantial factor in causing Plaintiffs’ injuries … While all states contribute to the nation’s overall carbon emissions, Youth Plaintiffs sufficiently allege that Montana is responsible for a significant amount of those carbon emissions:
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- “Montana is the sixth largest coal producer in the United States …
- “Montana produces 1 in every 200 barrels of U.S. oil …
- “One fifth of all U.S. natural gas imports from Canada entered the U.S. by pipelines through Montana in 2017. These pipelines were authorized by Defendants. Roughly 95 percent of natural gas that enters Montana passes through this state to other states …
- “Between 1960 and 2017, coal, oil, and gas extracted from Montana with state-authorization resulted in 3,940 million metric tons of C02 emissions once combusted. This number is roughly equivalent to 80 percent of all energy-related U.S. C02 emissions in 2018. This amount of cumulative emissions would rank as the third largest when compared to the annual emissions of countries …
“Paragraph 118 of the Complaint provides 23 examples of Defendants’ ‘affirmative actions to authorize, implement, and promote projects, activities, and plans . . . that cause emissions of dangerous levels of GHG pollution into the atmosphere … Youth Plaintiffs allege that Defendants accomplished these aggregate acts in furtherance of the State Energy Policy which promotes fossil-fuel extraction and use … Additionally, Defendants accomplished these acts without considering or informing Montana residents of associated climate change impacts pursuant to MEPA’s Climate Change Exception …
“Youth Plaintiffs have sufficiently raised a factual dispute as to whether the State Energy Policy was a substantial factor in causing Youth Plaintiffs’ injuries … As alleged, Defendants’ aggregate acts taken pursuant to the State Energy Policy were a substantial factor in causing ‘dangerous levels of pollution,’ resulting in injury.”
The State did prevail in several respects: Judge Seeley ruled against the Plaintiff’s desire that Defendants “cease and reform their unconstitutional conduct and prepare a remedial plan … to bring the state energy system into constitutional compliance.” Seeley wrote that “such relief exceeds the court’s authority because the ability to enact new legislation lies exclusively with the Montana Legislature.” The Court also found “that the requested injunctive relief seeking an accounting of GHG emissions violates the political question doctrine … Such an order would require the court to exceed its authority by overseeing analysis and decision-making that should be left to ‘the wisdom and discretion of the legislative or executive branches.’”
But Judge Seeley then addressed a different form of relief:
“According to Youth Plaintiffs, their Complaint establishes that the State Energy Policy and Climate Change Exception to MEPA contributed to their injuries. Therefore, if the court declares that the State Energy Policy and Climate Change Exception to MEPA are unconstitutional, this ‘by itself, [would] suffice to establish redressability, regardless of whether additional injunctive relief was issued.’ … The court agrees.”
Over the next year, the State made several attempts to get Judge Seeley and the Montana Supreme Court to dismiss the case. The Daily Montanan reported:
“Assistant Attorney General Michael D. Russell argued … that the judge should issue a summary judgment in the case before it goes to trial because the changes to the state energy policy and Montana Environmental Policy Act (MEPA) made by the legislature and signed into law render the original claims moot …
“Russell told the court that the plaintiffs’ assertion to a constitutional right to a stable climate system would lead to ‘absurd results’ if enforced because of the global nature of greenhouse gas emissions and climate change, saying that such a decision would render any greenhouse gas emissions whatsoever unconstitutional. ‘According to plaintiffs, every single molecule of CO2 introduces global warming,’ he said. ‘Take it to its logical conclusion. That means every breath I take is a constitutional violation.’ … Russell said the court should not rely on the ‘emotional’ appeals made by the plaintiffs and argued that the remaining claims are relief ‘are without the sufficient legal basis to move forward.’” (Emphasis added.)
Nevertheless, Judge Seeley “told attorneys for the state and for a group of young Montanans suing over Montana’s fossil fuel policies and stance that they should ‘prepare for trial’ in a month.”
Dharna Noor of the UK Guardian reported on June 12, 2023:
“The US’s first-ever trial in a constitutional climate lawsuit kicked off on Monday morning in a packed courtroom in Helena, Montana … In opening statements, Roger Sullivan, a lawyer for the plaintiffs, explained that climate change is fueling drought, wildfires, extreme heat and other environmental disasters throughout Montana, taking a major toll on the young plaintiffs’ health and well-being. There is a ‘scientific consensus’, he noted, that these changes can be traced back to the burning of fossil fuels …
“But the state argued that Montana’s emissions are ‘too minuscule’ to make any difference in the climate crisis. ‘Climate change is a global issue,’ Michael D Russell, assistant attorney general, said in opening remarks for the state.”
The trial began on June 12, 2023 and ended on June 20, 2023, with 24 witnesses for the plaintiffs and three for the defendants. Early on, I acknowledged the David and Goliath-like battle these young people decided to wage. In her August 14, 2023 ruling, Judge Kathy Seeley highlighted some of the actions the politically powerful leaders of the State engaged in to counter legal challenges to its pro-energy industry policies: “In 2011, the Montana Legislature amended MEPA to limit the scope of environmental reviews—enacting the MEPA Limitation, which … now provides that Montana’s agencies are prohibited from considering ‘an evaluation of greenhouse gas emissions and corresponding impacts to the climate in the state or beyond the state’s borders.’”
She then cited SB 557, “which eliminates the preventative, equitable remedies for MEPA litigants who raise GHG or climate change issues.”
But Judge Seeley was clearly swayed by what the young people and their expert witnesses had to say. Her ruling is rather remarkable in its scope; it is one of the most complete and detailed explanations of the extent of the climate crisis, and a compelling portrait of how climate change continues to transform life in Montana.
Judge Seeley cites the testimony of a wide variety of experts, including Dr. Steven Running of the University of Montana, one of the co-recipients of the Nobel Prize for his work on “4th Assessment Report of the Intergovernmental Panel on Climate Change (IPCC).” He provided insight into “the general areas of the climate system, including the energy balance and imbalance, the physics of GHG emissions that are driving climate change, the global carbon cycle, the global hydrologic cycle, how they control this energy imbalance, and then how human caused fossil fuel development is harming Montana’s ecosystems and hydrology.”
There is Dr. Cathy Whitlock, Professor Emerita of Earth Sciences and a Fellow of the Montana Institute on Ecosystems at Montana State University (MSU), who explained “how human-caused fossil fuel development and the resulting release of CO2 into the atmosphere are harming Montana’s ecosystems, water supplies, communities, and the Plaintiffs themselves …”
Seeley wrote:
“There is overwhelming scientific consensus that Earth is warming as a direct result of human GHG emissions, primarily from the burning of fossil fuels … Fossil fuels include coal, crude oil or its derivatives (such as gasoline or jet fuel), and natural gas … While several GHGs are emitted from the burning of fossil fuels, carbon dioxide (CO2) is the GHG most responsible for trapping excess heat within Earth’s atmosphere … Science is unequivocal that dangerous impacts to the climate are occurring due to human activities, primarily from the extraction and burning of fossil fuels … A substantial portion of every ton of CO2 emitted by human activities persists in the atmosphere for as long as hundreds of years or millennia. As a result, CO2 steadily accumulates in the atmosphere …
“Between 1960 and 2000, CO2 levels rose at about 2 ppm per year, but since approximately 2000, CO2 levels are rising at about 3 ppm per year, primarily from fossil fuel emissions … Total global temperature rise over the last 120 years is on average 2.2°F, or about 1.2°C … Montana is heating faster than the global average because higher latitudes are heating more quickly … Montana is warming, and the rate of warming is increasing … Until atmospheric GHG concentrations are reduced, extreme weather events and other climactic events such as droughts and heatwaves will occur more frequently and in greater magnitude, and Plaintiffs will be unable to live clean and healthy lives in Montana …” (Emphasis added.)
Judge Seeley referenced the expert testimony of Dr. Lori Byron who served on the Environmental Protection Agency’s Children’s Health Protection Advisory Committee. Dr. Byron testified “that climate change and the air pollution associated with it are negatively affecting children in Montana, including Youth Plaintiffs, with a strong likelihood that those impacts will worsen in the absence of aggressive actions to mitigate climate change.”
Dr. Lise Van Susteren, who worked with Dr. James Hansen on “Assessing Dangerous Climate Change, Required Reductions of Carbon Emissions to Protect Young People, Future Generations and Nature,” spoke about “the physiological harms caused by climate change to Montana’s youth, including the Youth Plaintiffs, the psychological harms caused by the MEPA Limitation, and the availability of remedies to alleviate Plaintiffs’ psychological injuries.”
Judge Seeley stated:
“Children are uniquely vulnerable to the consequences of climate change, which harms their physical and psychological health and safety, interferes with family and cultural foundations and integrity, and causes economic deprivations … Children are at a critical development stage in life … [and] all children, even those without pre-existing conditions or illness, are a population sensitive to climate change because their bodies and minds are still developing … The physical and psychological harms are both acute and chronic and accrue from impacts to the climate such as heat waves, droughts, wildfires, air pollution, extreme weather events, the loss of wildlife, watching glaciers melt, and the loss of familial and cultural practices and traditions …” (Emphasis added.)
In a section entitled “Climate Change Is Already Adversely Affecting Montana’s Natural Environment,” she wrote:
“Climate change impacts result in hardship to every sector of Montana’s economy, including recreation, agriculture, and tourism. For example, private water supplies will be harmed … Montana’s snowpack has been decreasing and is likely to continue decreasing with warmer temperatures, as a long-term trend caused by impacts to the climate …”
Judge Seeley found the testimony of Dr. Dan Fagre “informative and credible.” In 1991, Dr. Fagre “became the Climate Change Research Coordinator at Glacier National Park … [and] helped develop a national climate change research program within the National Park Service, coordinating with other scientists at national parks from Florida to Alaska …”
Judge Seeley wrote:
“Glacier National Park is a major driver of the regional economy and a source of fresh water for countless communities … Of the approximately 146 glaciers present in Glacier National Park in 1850, only twenty-six glaciers larger than twenty-five acres remained in 2015. 82 [percent] of Glacier Park’s glaciers are gone and there has been a 70 percent loss of area of all glaciers … Since 1900, glaciers in Glacier Park lost 66 [percent] of their area, making Montana the largest region for glacier loss in the U.S. lower forty-eight … The scientific consensus is that the retreat of Glacier Park’s glaciers over the past century is due to human GHG emissions (mainly CO2 from fossil fuel burning) … The current ice retreat of Glacier Park’s glaciers is in response to modem, human-caused warming of the region …” (Emphasis added.)
Unlike the representatives of the State of Montana, who attempted to minimize and discount what they implied were “alleged” or “abstract, conjectural or hypothetical” injuries, Judge Seeley acknowledges “that Plaintiffs have been and will continue to be harmed by the State’s disregard of GHG pollution and climate change …”
Seeley writes:
“[Plaintiff Rikki Held has] experienced climate change-related harms to herself and her family ranch, including harms from flooding, severe storms, wildfires, and drought … Rikki and her family run a motel that rents rooms to travelers. Rikki often works for the family motel business. The primary source of Rikki’s family’s income is the ranch (currently leased) and motel business. Loss of this income affects Rikki personally. Impacts to the climate are already harming Rikki’s home, family, community, income, and way of life … Reduced winter snowpack means less natural water available for cattle. As a result, the cattle must rely on water tanks, which are far apart and expensive to install. With less water, there is also less grass available for the cattle to eat.”
Judge Seeley continues:
“Plaintiffs Lander Busse and Badge B. are brothers, living in Kalispell, Montana … Lander and Badge hunt with their parents and grandparents. Hunting is an important family activity. Lander and Badge’s ability to hunt and fish is inhibited due to climate change consequences, including extreme heat and wildfires … [and] by rendering certain waterways impassible by raft due to low instream levels or too-warm water temperatures, which harm fish and decrease their populations … The extreme temperatures and smoke have at times made hunting unbearable and impossible … Wildfires in the Badger-Two Medicine have destroyed trees and have degraded areas important to Badge and where he enjoys visiting and recreating, which has had a powerful emotional impact on Badge. Badge experiences a sense of loss and distress knowing that the area is being damaged and degraded due to climate change. Badge feels as if a part of him were lost in the Badger Two-Medicine fire.”
Seeley writes:
“Plaintiff Sariel Sandoval is a member of the Confederated Salish and Kootenai Tribes and is from Ronan, Montana … Climate change is harming Sariel’s culture and tribal practices. Sariel went to a Salish language immersion school called Nkwusm in Arlee. At school, Sariel was taught her native language and learned about the Salish culture … She believes that carrying on her community’s traditions is important because it is their way of life and reflects their connection to the land …
“Sariel is concerned about how climate change affects the seasons because her culture is very ingrained with the land and the seasons. It also affects plants and foods her tribe needs to survive, and she is concerned that these changes will change the community itself. Because of earlier-than-normal snowmelt and the consequent drying of mountain streams as a result of climate change, plants used in Salish and Kootenai medicines are becoming scarcer and more difficult for tribe members to gather …
“Sariel is often unable to see the mountains near her home due to wildfire smoke … Climate change has a profound emotional impact on Sariel, who experiences stress and despair about the impacts her community is facing due to climate change. Sariel was greatly distressed when she learned that Montana was almost at the point of no return with respect to climate change.”
Judge Seeley refers to the testimony of Peter Erickson, who “served on both national and international committees devoted to GHG emissions accounting … [and] testified about Montana’s fossil fuel consumption, extraction, and infrastructure, focusing on three categories:(1) extraction of fossil fuels; (2) processing and transportation of fossil fuels; and (3) consumption of fossil fuels by end users … In his opinion, emissions from Montana’s fossil fuel consumption, extraction, and infrastructure are globally significant quantities.”
From testimony and exhibits provided by the plaintiffs, Judge Seeley offered this remarkable portrait of energy use and GHG emissions in Montana:
“Defendants permit three types of fossil fuel-related activities: (1) extraction of fossil fuels; (2) processing and transportation of fossil fuels; and (3) consumption of fossil fuels by end users … Data indicates that in 2019, the total annual fossil fuels extracted in Montana led to about 70 million tons of CO2 being released into the atmosphere once the fuels were combusted, which is higher than many other countries, including Brazil, Japan, Mexico, Spain, or the United Kingdom … Data indicates that in 2019, total annual fossil fuels consumed in Montana led to about 32 million tons of CO2 being released into the Atmosphere … Accounting for overlap among fossil fuels extracted, consumed, processed, and transported in Montana, the total CO2 emissions due to Montana’s fossil fuel-based economy is about 166 million tons CO2 … equivalent to the emissions from Argentina (with forty-seven million residents), the Netherlands (with eighteen million residents), or Pakistan (with 248 million residents) …
“In terms of per capita emissions, Montana’s consumption of fossil fuels is disproportionately large and only five states have greater per capita emissions … Montana is a major emitter of GHG emissions in the world in absolute terms, in per person terms, and historically … Montana has six coal mines that Defendants authorize: Spring Creek Mine, Rosebud Mine, Decker Mine, Absaloka, Bull Mountain, and Savage Mine … Montana also has the largest estimated recoverable coal reserves in the U.S., and Montana is a substantial exporter of coal … Montana is a substantial producer of oil and gas in the U.S. Defendants authorize the drilling and production of oil and gas in Montana … Montana has approximately 4,000 oil producing wells with an annual oil production of twenty-three million barrels. As of 2019, Montana’s oil reserves were 298 million barrels … Between 1960 and 2019 the fastest growing category of fossil fuel consumption in Montana has been gas …
“Montana’s land contains a significant quantity of fossil fuels yet to be extracted … Montana’s GHG emissions have grown significantly since the passage of the 1972 Montana Constitution … Defendants continue to approve permits and licenses for new fossil fuel activities … Defendants have authorized fossil fuel extraction, transportation, and combustion resulting in high levels of GHG emissions that contribute to climate change … In taking action to authorize fossil fuel extraction, since 2011 Defendants have not considered or disclosed GHG or climate change impacts in their environmental reviews because they were statutorily precluded from doing so.” (Emphasis added.)
Seeley details occasion after occasion when State officials were informed of the severe consequences of increased greenhouse gas emissions and the multiple times these warnings were ignored:
“The State has known of the dangerous impacts of GHG emissions and climate change for at least the last thirty years … State government and scientists have known about the international scientific consensus of the dangers posed by climate change since at least the 1990s when the IPCC started issuing climate assessment reports. The State also had access to the congressionally mandated national climate assessments undertaken in 2000, 2009, 2014, and 2017 …
“Pursuant to the MEPA Limitation, the State has ignored GHG emissions and climate impacts when authorizing fossil fuels activities … The MEPA Limitation constrains Defendants from making fully informed decisions through their environmental analysis about the scope and scale of the impacts to the environment and Montana’s children and youth when conducting environmental reviews. Mont. Code Ann. § 75-1-201 (6)(a)(ii) attempts to constrain the authority of courts when reviewing agency permitting decisions and MEPA analyses …” (Emphasis added.)
Then Seeley offers this clear and concise analysis:
“If the MEPA Limitation is declared unconstitutional, state agencies will be capable of considering GHG emissions and the impacts of projects on climate change … Montana’s river and lake ecosystems are interconnected with each other, as well as aquatic and terrestrial ecosystems beyond Montana’s borders. Because of this interconnectivity to ecosystems both within and beyond Montana’s borders, any prohibition on the consideration of either impacts within Montana or regional impacts of climate change, is not scientifically supported … Defendants’ application of the MEPA Limitation during environmental review of fossil fuel and GHG-emitting projects, prevents the availability of vital information that would allow Defendants to comply with the Montana Constitution and prevent the infringement of Plaintiffs’ rights … The State authorizes energy projects and facilities within Montana that emit substantial levels of GHG pollution, including, but not limited to, projects that burn and promote the use of fossil fuels, but pursuant to the MEPA Limitation, Defendants do not consider climate change and GHG emissions and measure those individual and cumulative emissions against the standards the Montana Constitution imposes on the State to protect people’s rights, before authorizing energy projects and facilities … Defendants have and continue to authorize projects, activities, and plans that cause emissions of GHG pollution into the atmosphere, all while ignoring the impacts of climate change and GHG emissions due to the MEPA Limitation …”
Seeley writes:
“Experts have already prepared a roadmap for the transition of Montana’s all-purpose energy systems (for electricity, transportation, heating/cooling, and industry) to a 100 percent renewable portfolio by 2050, which, in addition to direct climate benefits, will create jobs, reduce air pollution, and save lives and costs associated with air pollution … It is technically and economically feasible for Montana to replace 80 percent of existing fossil fuel energy by 2030 and 100 percent by no later than 2050, but as early as 2035 …
“All-purpose Montana energy in 2050 can be met, for example, in one scenario, with 4.5 gigawatts (GW) of onshore wind, 3 GW of rooftop PY, 2.9 GW of utility-scale PV, 0.17 GW of geothermal electricity, and 2.7 GW of hydropower (which already exists) … Converting from fossil fuel energy to renewable energy would eliminate another $21 billion in climate costs in 2050 to Montana and the world. Most noticeable to those in Montana, converting to wind, water, and solar energy would reduce annual total energy costs for Montanans from $9.1 to $2.8 billion per year, or by $6.3 billion per year (69.6 percent savings) … Wind, water, and solar are the cheapest and most efficient form of energy. Cost per unit of energy in a 100 percent WWS system in Montana would be about 15 percent lower than a business-as-usual case by 2050, even when including increased costs for energy storage. New wind and solar are the lowest cost new forms of electric power in the United States, on the order of about half the cost of natural gas and even cheaper compared to coal …
“The new footprint over land required to implement a 100 percent renewable energy system in Montana would be only about 0.06 percent of Montana’s land … In comparison, Montana’s oil and gas wells and associated infrastructure already occupy about 304 square miles of land (0.21 percent of Montana land area) … Transitioning to WWS will keep Montana’s lights on while saving money, lives, and cleaning up the air and the environment, and ultimately using less of Montana’s land resources …
“The current barriers to implementing renewable energy systems are not technical or economic, but social and political. Such barriers primarily result from government policies that slow down and inhibit the transition to renewables, and laws that allow utilization of fossil fuel development and preclude a faster transition to a clean, renewable energy system. Montana has abundant renewable energy resources that can provide enough energy to power Montana’s energy needs for all purposes in 2050.” (Emphasis added.)
Finally, Judge Seeley concludes that the Plaintiffs have proven standing and injury:
“Youth Plaintiffs have experienced past and ongoing injuries resulting from the State’s failure to consider GHGs and climate change, including injuries to their physical and mental health, homes and property, recreational, spiritual, and aesthetic interests, tribal and cultural traditions, economic security, and happiness …”
Therefore, she writes:
“The State must either: 1) have discretion to deny permits for fossil fuel activities when the activities would result in GHG emissions that cause unconstitutional degradation and depletion of Montana’s environment and natural resources, or infringement of the constitutional rights of Montana’s children and youth; or 2) the permitting statutes themselves must be unconstitutional …
“Under the doctrine of constitutional avoidance, this Court clarifies that Defendants do have discretion to deny permits for fossil fuel activities that would result in unconstitutional levels of GHG emissions, unconstitutional degradation and depletion of Montana’s environment and natural resources, or infringement of the constitutional rights of Montanans and Youth Plaintiffs.”
Citing a decision in Park County Environmental Council v. Montana Department of Environmental Quality, Judge Seeley takes aim at the recent state legislation, Mont. Code Ann. § 75-1 -201 (6)(a)(ii), which prevents citizens like the Plaintiffs from ensuring their constitutionally protected rights to a clean and healthful environment. Judge Seeley concludes:
“Pursuant to the Court’s decision in Park Cnty., Mont. Code Ann. § 75-1 -201 (6)(a)(ii) is facially unconstitutional because it eliminates MEPA litigants’ remedies that prevent irreversible degradation of the environment, and it fails to further a compelling state interest.”
And so, Judge Seeley rules: “The MEPA Limitation Violated the Montana Constitution.” (Emphasis added.) In a remarkable victory for the young people, Judge Seeley affirms:
“The right to a clean and healthful environment is a fundamental right protected by Mont. Const. Art. II, Sec. 3 and Art. IX … Montana’s children under age eighteen, have a fundamental right to a clean and healthful environment. Mont. Const. Art. II, Sec. 15. The right to a clean and healthful environment is intended to protect Montana’s children and future generations.”
Not surprisingly, on October 2, 2023, the State of Montana appealed Judge Seeley’s decision to the Montana Supreme Court.
Some last thoughts. This is not the Glacier National Park I saw in 1966:
Yes, there is a lot less ice and snow, but it is still a marvel to behold, and so very worth fighting for. And, as far as I am concerned, and as Judge Seeley’s absolutely amazing and groundbreaking decision shows, there is always a good reason to sue to save Mother Earth.
