Blair Miller

A week before the Montana youth climate change trial is set to start, the state has asked the Montana Supreme Court to halt the trial and take supervisory control over the case on the basis the district court judge set to hear the trial made “a mistake of law” in allowing the case to go to trial.

The Montana Department of Justice on Monday filed the emergency petition for writ of supervisory control and stay with the state high court. In it, DOJ attorneys argue that after Judge Kathy Seeley dismissed a portion of the lawsuit tied to the now-repealed state energy policy and the legislature changed the language of an exception to the Montana Environmental Policy Act, there is nothing left for the trial to accomplish.

“Put simply, it does not matter whether these or any other facts are genuinely disputed, because the District Court does not have the power to fashion relief under MEPA that will change them,” attorneys wrote in their Supreme Court filing. “The Court’s description of what the impending trial will accomplish derives from a basic misunderstanding of the purposes and functions of MEPA.”

A spokesperson for Our Children’s Trust, the environmental organization behind the lawsuit, declined to comment on the new filing Monday.

In late May following a hearing, Judge Seeley ruled that the case, Held et al v. State of Montana et al, will proceed to trial on June 12 to decide whether climate change and a MEPA limitation – now modified in statute because of this year’s legislature – impact youth disproportionately. She declined to grant summary judgment in the remaining claims, for which the state had asked.

In her order, Seeley cited prior Supreme Court decisions in which the court ruled the 1972 Montana Constitution’s framers intended the constitutional right to a clean and healthful environment to show there should be no future degradation of the environment past that year and that it should be the strongest environmental constitutional provision in the nation — thus implicating MEPA protections.

The plaintiffs in the case are 16 Montana youth who argue the state’s policies and procedures surrounding energy production and development in Montana is violating their constitutional right to a clean and healthful environment by contributing to climate change.

Seeley said in May even though the legislature amended the MEPA limitation and changed its language with House Bill 971 because of a  Yellowstone County judge’s decision regarding the greenhouse gas emissions of a NorthWestern Energy plant in Laurel, the statute still implicates plaintiffs’ right to a clean and healthful environment.

“The State may not have the power to regulate out-of-state actors that burn Montana coal, but it could consider the effects 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.”

In its filing with the Supreme Court on Monday, the state argued her reasoning for allowing the case to proceed to trial is incorrect because the plaintiffs have only challenged the version of MEPA that existed before the legislature amended the law this session.

“This case is receiving not just state-wide, but national attention as purportedly the first case in the nation to go to trial on allegations that a state has damaged youth plaintiffs through its policies and laws related to greenhouse gases and climate change,” the DOJ attorneys wrote in their request. “There should be no trial, however, because there are no relevant facts to find, and there are no existing Montana laws or policies for the District Court to interpret, apply, or attempt to fashion some form of relief.”

The state argues that Seeley “erroneously” sent the case to trial because the Republican supermajority legislature changed the law in direct response to the Yellowstone County judge’s ruling , which said the Department of Environmental Quality did not account for greenhouse gas emission projections for the Laurel plant when it issued permits.

The state argues the legislature’s late changes to the law, which were quickly signed by Gov. Greg Gianforte and changed the MEPA limitation to say that an environmental review cannot evaluate greenhouse gas emissions or their impacts to the climate either in- or out-of-state, means the original claims of the 2020 lawsuit no longer exist.

“The District Court’s orders contain clear errors of law and demonstrably erroneous factual assumptions,” the DOJ wrote in their filing with the Supreme Court. “There is nothing left to try, and this Court should step in to prevent a massive expenditure of wasted time and resources by all concerned.”

Under state law, the Supreme Court supervises all other courts and can, on a case-by-case basis, supervise another court. The law calls that decision “an extraordinary remedy” that could be justified “when urgency or emergency factors exist making the normal appeal process inadequate, when the case involves purely legal questions,” and under other circumstances, including a court proceeding “under a mistake of law.”

The state argued in its Monday filing that the changes to the MEPA limitation through House Bill 971 “altered the relevant legal landscape in a big way” and that Judge Seeley “misapplied well-established, traditional sideboards on jurisdictional prerequisites, misread of misapprehended the pleadings and claims.”

“The Court committed to having a trial on Plaintiffs’ MEPA claim even when it is readily apparent it lacks the authority to issue a declaratory judgment on a MEPA provision that no longer exists or to even ‘partially remove or correct the injuries suffered by Youth Plaintiffs,’” DOJ attorneys wrote.

They argued, as they have previously and as lawmakers did when discussing HB 971 and Senate Bill 557 this session, that MEPA is not a permitting statute, is merely procedural, and that the state “absolutely lacks the authority to regulate GHG emissions and cannot cite authority to the contrary.”

The state argued that previous rulings by the Supreme Court make clear that is the case and that Seeley’s order that the state has the authority to regulate greenhouse gas emissions “is simply wrong.”

The attorneys argued that the Clean Air Act or another permitting statute would have to be amended to do so, and that striking down a provision of MEPA “will not provide authority compelling agencies to analyze GHG in permitting decisions where no statutory authority exists.”

Because the legislature changed the law this year that had been challenged in the first place, they argue, lawmakers have done away with the final portion of the suit that could be challenged.

“The relief the District Court ‘has always’ contemplated no longer exists, unless it refers to a claim that has not been pleaded, the other side of the same problematic jurisdictional coin,” the DOJ attorneys wrote.

They say that while the plaintiffs could argue they should be able to again amend their complaint in district court, that would “exacerbate, not solve, the issues presented in this application.”

The state says it has not had enough time to analyze how HB 971 affects the case and that the Supreme Court should take supervisory control both “to prevent a colossal investment of time and resources” at trial and to be sure neither side “is subjected to a gross injustice in the form of an unnecessary trial.”

“Questions about the extent of Plaintiffs’ injuries, GHG emissions, and Montana’s contribution (or lack thereof) to global climate change may be academically interesting or important in a policy or political sense, but the answers to those questions will not change the fact that MEPA does not permit anything, regardless of the version under scrutiny,” the DOJ attorneys wrote.

Absent the court granting the stay of the trial, it would begin next Monday, June 12, at 9 a.m. at Lewis and Clark County District Court in Helena.

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