Blair Miller

(Daily Montanan) A Lewis and Clark County District Court judge 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 despite efforts by the state to get the case halted or dismissed.

The state and Republican Attorney General Austin Knudsen had asked Judge Kathy Seeley to dismiss remaining parts of the case involving 16 plaintiffs tied to the state energy policy, which was repealed by House Bill 170, which Gov. Greg Gianforte signed into law in March.

Attorneys for the plaintiffs argued in court Friday that bill and another introduced and passed late in the session in response to a judge’s decision about greenhouse gas emissions at a NorthWestern Energy power plant in Laurel – House Bill 971, which Gianforte signed this week – involved efforts to derail the trial by changing the parts of Montana law the original lawsuit targets.

“I would suggest you continue to prepare for trial until you get an order,” Seeley told attorneys from both parties when a Department of Environmental Quality attorney suggested a trial would not be necessary. “… I’m not intending to just stop everything so that we can spend months wrapped around that spoke.”

In 2020, the 16 Montana children – then between ages 2 and 18 – sued the state, the DEQ, the Montana Department of Natural Resources and Conservation, the Department of Transportation and the Montana Public Service Commission, alleging that the state’s work with, and promotion of, industries that emit greenhouse gases is violating the Montana Constitution and its guarantee that the state and every resident “maintain and improve a clean and healthful environment in Montana for present and future generations” by contributing to climate change.

The U.S. Environmental Protection Agency says that burning fossil fuels – primarily for energy and transportation purposes – is the top contributor to greenhouse gas emissions and climate change in the U.S.

Assistant Attorney General Michael D. Russell argued on behalf of the state Friday, as the Attorney General’s Office has throughout filings this spring, 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.”

Attorney Roger Sullivan, representing the plaintiffs, said that statement demonstrated the state had no articulate position and that the plaintiffs’ filings all show that the harm alleged – that climate change caused by the burning of greenhouse gases that is affecting the plaintiffs’ current and future livelihoods – stems from the state’s policies and actions.

Some of the original claims from the 2020 lawsuit have already been ruled out of the court’s jurisdiction, but the state asked for a summary judgment in the case last month, claiming that both sides would benefit if a decision were made in either of their respective favor.

“Either outcome eliminates significant expense and benefits judicial efficiency, which weighs heavily in favor of concrete resolution of the applicable legal questions,” the state said in an February filing.

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.”

But Sullivan said that even the new changes made under House Bill 170 and House Bill 971 do not effectively change how the state agencies have been granting permits, saying that he believes the state has never denied a permit linked to burning fossil fuels, and that the changes to statute could still be considered at a trial.

The final version of HB971 says environmental reviews of projects cannot include evaluations of greenhouse gas emissions and their impact to the climate unless it’s done by the state and federal governments, or if Congress puts carbon emissions under the umbrella of those regulated under the federal Clean Air Act.

It is one of several bills passed by the legislature this session that seek to respond to a Yellowstone County judge’s decision about greenhouse gas emissions at the under-construction power plant in Laurel, and to lawsuits during the past several years from environmental nonprofit groups that have stymied energy and mining operations because of their effects on the environment.

Sullivan argued that the bill merely clarified state statute and MEPA exclusions, while the state said the changes were substantial enough to call into question whether the lawsuit should even proceed to trial because it believes the court no longer has subject matter jurisdiction to consider the case.

Sullivan said it would be a “sinister move” to take the trial, which is scheduled to start June 12, off the table and deny the plaintiffs their long-awaited chance in court, adding that he believes that HB971 “does nothing more than corroborate the plaintiffs’ position” and does not change the intent of the lawsuit surrounding the constitutional questions.

Seeley told the attorneys for the state she did not find their claims “to be nearly as substantive to the issues in the case as you do” but she would allow them to make their argument ahead of the trial.

Seeley did not issue any rulings on Friday but could early next week, a court clerk said. Should the case proceed to trial, it will be the first out of many lawsuits from Our Children’s Trust, which filed the lawsuit, to go all the way to trial.