Montana climate plaintiffs respond to state’s Supreme Court appeal

Blair Miller

(Daily Montanan) Delegates to Montana’s 1972 Constitutional Convention wanted to improve the state’s environment and said they had crafted provisions of the document so courts could enforce Montanans’ rights to a clean and healthful environment for current and future generations, attorneys wrote to the Supreme Court on Wednesday.

Those attorneys represent the 16 youth plaintiffs in the Held v. Montana case, and they filed their answer brief with the court that is a rebuttal to the state’s appeal of last year’s lower court decision.

Central to the state’s appeal, filed mid-February, is the contention that District Court Judge Kathy Seeley’s order declaring the limitation to the Montana Environmental Policy Act and another portion of environmental review statute unconstitutional did not address the injuries suffered by the youth plaintiffs.

The state argued that is the case because Montana’s greenhouse gas emissions are a small fraction of the global contributions to climate change and could not solely be responsible for violating their constitutional rights.

In the plaintiffs’ answer, they reiterate that the case, and Seeley’s order, involve the portion of the Montana Constitution that is directly tied to Montana’s environment and preserving and improving it for current and future generations.

“As the trial record and District Court’s Order make clear, this case is about harm to Montana’s environment, natural resources and climate (and consequently its children) caused by [greenhouse gas] pollution and climate change,” the plaintiffs’ attorneys wrote in their brief. “The State’s argument that the Framers were not concerned with ‘global issues’ … mischaracterizes the distinctly local environmental degradation and injuries at the center of this case.”

The brief cites points made by several constitutional convention delegates during their discussions of the environmental protection and health portions of the constitution to show the delegates both intended the courts to decide how to interpret those provisions apply and that they were focused on Montana.

The brief quotes Mae Nan Ellingson – then Robinson – as saying during the convention that the Supreme Court would be able to tell Montanans what “clean and healthful” means and that those adjectives were specifically used “to enable the Supreme Court to interpret what kind of environment we want.”

“Without these qualifying adjectives, the court is going to have a very hard time,” she is quoted as saying. Ellingson was one of the witnesses for the plaintiffs at the trial and spoke to the intent of the framers in crafting that portion of the constitution.

The brief quotes delegate Cedor Aronow as saying the environmental provisions of the constitution would be “meaningless unless you have an independent Judiciary that’s willing and able to enforce those rights guaranteed to you.”

Ellingson back in 1972 had blamed environmental issues in the U.S. on the failure of state legislatures to take corrective action, and the plaintiffs’ brief shows that delegates felt Montana’s environment needed to be improved at the time.

“As Delegate (C.B.) McNeil stated, ‘our intention was to permit no degradation from the present environment of Montana and affirmatively require enhancement of what we have now,’” the brief says.

The state argues two main points in its brief. First, that invalidating the MEPA limitation, which prohibited the state from analyzing greenhouse gas emissions or climate impacts when considering permits for energy and mining projects, would not fix the plaintiffs’ injuries because climate change is a global problem.

And second, the state asked the Supreme Court to clarify that Seeley’s order did not require the state to perform those analyses – but rather merely said the state was capable of doing so and should do so because every bit of greenhouse gas emitted in Montana contributes to climate change and the plaintiffs’ injuries.

Seeley’s order also struck down a portion of law that said that a challenge to the adequacy of a state agency’s environmental review on the basis of climate impacts could not delay or void any permit unless Congress starts to regulate carbon dioxide as a pollutant. That portion of law and the version of the MEPA limitation that was struck down were both amended by the Republican supermajority legislature last year in the weeks ahead of the trial.

But the plaintiffs argue that purposefully avoiding analyzing environmental and climatological impacts of Montana’s energy production system was the opposite of the constitutional framers’ intents, and that the state has still shown no compelling state interest in not looking at greenhouse gas emissions and climate impacts.

They wrote that the MEPA limitation clearly implicates the right to a clean and healthful environment because the state knows greenhouse gases are degrading and depleting the state’s natural resources and environment, and that the other portion of law that was struck down was a way for the state to ensure it made no changes in authorizing fossil fuel-burning projects.

“Such a law plainly … contravenes the State’s constitutional obligation to ‘provide Montanans with remedies adequate to prevent unreasonable degradation of their natural resources,’ and directly implicates plaintiffs’ constitutional rights,” the attorneys said.

The attorneys say that if the Supreme Court sides with the state and agrees the plaintiffs’ injuries cannot be addressed by striking down the two portions of law, that it “would immunize all of MEPA from judicial review” and contradict the evidence from the trial and in Seeley’s order.

“Accepting any of the State’s (or their amici’s) belated factual or constitutional arguments would eviscerate the purpose of MEPA, young Montana’s 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 filing says.

Now that the plaintiffs have filed their brief, the state will have an opportunity to file a reply if it chooses.

A host of energy and business groups and Republican lawmakers have filed “friend of the court” briefs with the court siding with the state’s argument. Attorneys for the plaintiffs said constitutional law, public health, indigenous rights, and business groups would be filing their own briefs siding with the plaintiffs in the coming days.

After the case is fully briefed, the court is likely to set the appeal for oral arguments sometime later this year.