Laura Lundquist

(Missoula Current) After hearing final arguments, the Montana Supreme Court will decide whether recent state law can bar state agencies from considering the effects of climate change.

On Wednesday morning, around 30 people gathered in the Goodworks Place building to watch a streaming presentation of the Montana Supreme Court as the justices heard the state’s appeal of the youth climate change lawsuit Held v. Montana. The 75-minute screening was sponsored by Climate Smart Missoula, Families for a Livable Climate, Montana Environmental Information Center and the Montana Sierra Club.

Last August, after a widely publicized trial, Lewis and Clark County district judge Kathy Seeley issued a ruling in favor of the 16 youth plaintiffs that found two recent state laws violated their Montana Constitutional right to a clean and healthy environment. One law bars the Department of Environmental Quality from considering greenhouse gas effects when evaluating various project permits and the other said permits approved without a climate change analysis couldn’t be voided unless the U.S. Environmental Protection Agency started regulating greenhouse gases under the Clean Air Act.

The state subsequently appealed the ruling to the Montana Supreme Court, claiming the district court overstepped. Wednesday’s hearing is the culmination of the lawsuit, and the Supreme Court’s decision could have ramifications for the Montana Environmental Policy Act, which spells out how state agencies are to carry out environmental analysis and public participation.

Before dimming the room lights, Katy Spence, MEIC engagement director, welcomed the crowd and explained the hearing process. She predicted that the state of Montana as the defendants would argue that the youth plaintiffs had no standing to bring a case.

“Last year, they didn’t put up much of a defense in terms of trying to deny that climate change is happening. So they can’t introduce new evidence in this hearing,” Spence said. “But what they can do is argue that what is the state going to do to remedy the problem.”

Spence’s predictions came to pass as Dale Schowengerdt, attorney for the state, argued that in any lawsuit, the courts have to be able to order a remedy that would address plaintiffs’ injuries. But the plaintiffs hadn’t shown that the harm they suffered as a result of climate change was directly connected to the state’s actions when it approved fossil fuel permits, Schowengerdt said.

Schowengerdt said that because the Montana Environmental Policy Act doesn’t allow agencies to deny permits, conducting a greenhouse gas analysis wouldn’t stop any specific project. And even if agencies had the discretion to deny permits, the climate change issue is too complex to analyze due to competing interests and multiple greenhouse gas sources, Schowengerdt said.

“The nature of the harm and the relief required to mitigate that harm is what puts this case outside the context of the normal case. And it also is what entangles agencies into very difficult policy issues,” Schowengerdt said. “But what makes the district court’s decision worse - beyond just assuming that state agencies could deny permits - is the court assumed the state agencies would deny permits based on some unspecified level of greenhouse gas emissions that violates the Constitution.”

Schowengerdt argued that Judge Seeley’s ruling should be overruled because the plaintiffs hadn’t challenged a specific permit that could be shown to produce greenhouse gases that caused them harm. Instead, Seeley’s ruling suggested that agencies should have the discretion to review project emissions and deny permits if they cause environmental harm, Schowengerdt said. When Schowengerdt said the agency had no emissions standard to measure that, Justice Laurie McKinnon interjected.

“That is a process that evolves. But right now, nothing can evolve,” McKinnon said, referring to the ban on any greenhouse gas analysis.

Mark Stermitz, attorney for the state, argued that just removing the Legislature’s prohibition on consideration of greenhouse gases didn’t then grant agencies the authority to analyze greenhouse gases. There is no Montana law requiring that, Stermitz said. Justice Beth Baker asked Stermitz what authority DEQ used prior to 2001 to analyze greenhouse gases.

Stermitz said there was a difference between choosing to do something and being required to. Right now, the only requirement would come from the EPA if it declared carbon dioxide a pollutant, Stermitz said.

“The state never did contest that there are anthropogenic human factors that contribute to this problem. That doesn’t mean that we feel this global problem can be influenced in any way by a state district judge in Montana,” Stermitz said.

As the outside air temperatures across the state climbed toward triple digits, plaintiffs’ attorney Roger Sullivan argued that the two recent laws being challenged were unconstitutional because they’ve already caused “degradation of Montana’s environmental support system and the right to a clean and healthful environment.” The Legislature created a no-win situation when it banned consideration of greenhouse gases for permits and then eliminated the opportunity to challenge those permits, Sullivan said.

“The 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. It closes Montana’s courthouse doors to those seeking redress from the harms hidden from the agency’s eyes,” Sullivan said, prompting applause from the audience in Goodworks Place.

Sullivan argued that the Montana Environmental Policy Act requires state agencies to take a “hard look” at relevant information related to a project before issuing permits. By prohibiting greenhouse gas analyses, the Legislature was preventing the agencies from taking that hard look so they were in violation of the act. Sullivan said plaintiffs didn’t need to challenge a specific permit because constitutional challenges allow plaintiffs to anticipate potential violations, and hazards have mounted as permits continue to be approved.

“The Constitution controls MEPA and not vise versa,” Sullivan said. “The MEPA limitation undermines MEPA’s constitutional purpose and its unique ability to avert potential harm through informed decision-making.”

Justice Dirk Sandefur asked Sullivan why plaintiffs didn’t challenge an existing permit, since it appeared that they were trying to get “a generic judgment that doesn’t apply to anything in this case.” Sullivan said the case started out by challenging the constitutionality of the Montana Energy Policy Act, which prioritized fossil fuel extraction. As a result, the state later repealed the act. Sullivan said Seeley’s ruling just expanded that to ensure the constitutionality of all permitted actions by removing the agencies’ blinders. Sullivan appealed to the justices to uphold Montanans’ constitutional right to a clean and healthful environment.

“Montana’s fossil fuel pollution is contributing to and worsening the plaintiffs’ injuries, and the challenge to MEPA statutes are culprits. But the protections provided by the Montana constitution are only as strong and enduring as the judiciaries’ resolve to enforce the framers’ clear intent,” Sullivan said.

Chief Justice Mike McGrath said the Supreme Court would take the matter under advisement. Spence said the ruling could take about six weeks.

Contact reporter Laura Lundquist at