Blair Miller

(Daily Montanan) The State of Montana filed its appeal of a district court judge’s decision in the Held v. Montana case with the Montana Supreme Court this week, arguing that the statute the judge struck down as unconstitutional could not solely be responsible for climate change and so the case never should have been decided in the first place.

The appeal brief, filed six months after Lewis and Clark County District Court Judge Kathy Seeley handed down her decision declaring the so-called “limitation” to the Montana Environmental Policy Act unconstitutional, argues that declaring the statute unconstitutional does not redress the plaintiffs’ injuries caused by climate change because climate change is a global problem and because MEPA carries no permitting authority.

The MEPA “limitation” has been in place since 2011 to say that environmental reviews could not include a review of impacts outside of Montana, but was amended by the 2023 Legislature in response to a judge’s ruling on a NorthWestern Energy plan in Laurel to expressly prohibit the state from evaluating greenhouse gas emissions or climate impacts to Montana or beyond the state’s borders.

The argument is similar to what the state has said throughout the caseduring trial, and after Seeley’s decision was handed down in statements and attempts to block her order.

“The District Court never should have reached the merits of this lawsuit because the Held plaintiffs lack case-or-controversy standing. MEPA—which is comprised solely of procedural statutes—did not cause plaintiffs’ alleged climate change injuries; invalidating § 75-1-201(2)(a) within MEPA will not redress the Held plaintiffs’ claimed injuries. Nor would enjoining this subsection redress Plaintiffs’ injuries—which, if caused by climate change, were indisputably caused by global climate change,” the state’s brief says.

The other portion of the state’s brief asks the high court to clarify that Seeley’s order does not – and cannot – require the state to perform greenhouse gas emissions and climate change analyses when performing MEPA reviews because the judicial branch cannot create law and no such laws exist currently, and because judges cannot compel executive branch agencies to perform certain analyses.

While Seeley struck down the MEPA limitation, she had previously noted that doing so would not be “congruent with commanding the State to consider climate change in every project or proposal.” But in her August order, she also found that the plaintiffs’ injuries “will be exacerbated” if the state continued to ignore climate change and greenhouse gas emissions.

After Seeley’s order came down, attorneys for the plaintiffs wrote to the Department of Environmental Quality saying it must calculate emissions resulting from proposed energy projects, and multiple lawsuits have been filed claiming the same.

The state had requests made to Seeley and the Supreme Court to pause Seeley’s decision pending the Supreme Court appeal denied in the final months of 2023 and in January.

“It is difficult to see how the District Court could have been clearer that it was only considering the constitutionality of statues; it was not contemplating replacing those statutes with an affirmative order requiring the State to take specific steps to respond to climate change,” the state’s brief filed this week said. “Held cannot recast the District Court’s Order to require what the Court explicitly rejected.”

Before the trial, the state had successfully reduced the scope of the case to the MEPA limitation and a portion of another bill lawmakers passed, and the governor signed, during the 2023 legislative session. Initially, the plaintiffs had asked for the court to require the state to prepare an accounting of emissions, to develop a plan to reduce emissions and to appoint a special master to oversee those plans.

In the Supreme Court appeal, the state’s attorneys extensively cite the 9th Circuit Court of Appeals’ dismissal of the Juliana v. United States case, which is still ongoing after the plaintiffs were granted the chance to file an amended complaint last summer and involves similar climate change claims but at the federal level.

In that 2-1 decision, the majority said that it was beyond the court’s Article III power to implement a climate change remediation plan the plaintiffs had sought, though the dissenting judge disagreed that the court had no possible role in trying to stop climate change.

“This court has made clear that the Montana Constitution’s justiciability requirements ‘embody[y] the same limitations’ as the ‘case-or-controversy language’ in Article III of the United States Constitution,” Montana’s attorneys wrote in the appeal brief.

The state argues that the MEPA limitation is not the cause of climate change that led to physical and psychological injuries and that invalidating it cannot fix those injuries.

“MEPA cannot be the legal cause of climate change injuries if MEPA does not give agencies any legal authority to prevent the environmental effects of climate change,” the brief says, adding that if the plaintiffs wanted to challenge the constitutionality of the permitting statutes that MEPA informs or individual projects, they could have done so.

Attorneys for the state wrote that Seeley “seemed to fault” the MEPA limitation “for the sum of Montana’s GHG emissions,” including those fossil fuels that only pass through the state, without making any findings about how much greenhouse gas emissions Montana was actually responsible for or how much they raised the global temperature.

They also argue that Seeley’s decision should be overturned because her order found Montana’s government’s actions over several decades had contributed to climate change but the MEPA limitation was not in place until 2011.

“Instead of asking whether the specific relief Plaintiffs requested would redress their injuries, the District Court seemed to believe that enjoining section 75-1-201(2)(a) could reverse decades of greenhouse gas emissions. The District Court’s evident confusion on this point led it to find standing when it should not have,” they wrote in the brief.

Finally, the state argues that even if Seeley correctly found the MEPA limitation violated plaintiffs’ rights under the state constitution to a clean and healthful environment, the MEPA limitation and Montana alone can have no effect on global climate change no matter the actions it takes.

“It is, at best, speculative whether removing an impediment to GHG analysis in MEPA review will reduce future GHG emissions,” the attorneys wrote in the brief. “… Whatever happens to GHG emissions in the future depends on the speculative future actions of billions of third parties.”

They wrote that enjoining MEPA can’t stop people around the world from driving vehicles with combustion engines, force companies to start using renewable energy, or stop any private or state actors from burning fossil fuels.

“At bottom, no single judicial action in Montana can meaningfully reduce climate change, and thus redress plaintiffs’ injuries. That would require a fundamental transformation of the world’s energy system,” the brief says. “That conclusion should apply with even greater force here: reducing the global consequences of climate change requires much more than an injunction of one subsection within a procedural statute in Montana.”

In their conclusion, the attorneys again cite back to the Juliana decision, saying that if stopping all federal activity that causes climate change couldn’t address the plaintiffs’ injuries, enjoining the MEPA limitation could only be a step absent action by the legislature or state agencies to adopt emissions analyses as part of the permitting process.

“There is no doubt that many Montanans are understandably concerned about climate change,” they wrote. “But addressing that issue is a matter to be addressed by the policymaking branches.”

Attorneys for the plaintiffs will file a response to the state’s brief, after which the court is likely to set a date for oral arguments in the appeal. Multiple groups, including chambers of commerce, think tanks, and the Republican House Speaker and Senate President are also expected to file friend-of-the-court briefs in the case for the court to consider.

Nate Bellinger, the lead attorney for Our Children’s Trust, the main law firm representing the plaintiffs, said in a statement the brief from the state was a repeat of the arguments the district court rejected after the trial.

“The 16 youth plaintiffs asked the court to uphold their right to a safe and secure future free from human-induced climate catastrophes, and they won,” Bellinger said. “Instead of doing their part, the State of Montana continues to resist complying with their constitutional duty to protect the youth plaintiffs’ fundamental rights.”