Organizations representing mining companies, lawmakers, and a right-wing think tank in Montana are starting to line up to ask the state Supreme Court to consider their interests and how the court’s decision in the state’s forthcoming appeal of the Held v. Montana case could affect them, the Daily Montanan reports.
The Treasure State Resources Association and Frontier Institute both say that a ruling by the court in favor of the 16 youth plaintiffs could have vast and dire consequences for the businesses they represent and for their hopes for future policy in Montana.
Attorneys for Gov. Greg Gianforte and several state agencies have a Feb. 13 deadline to submit their appeal brief in the case — about six months after Lewis and Clark County District Court Judge Kathy Seeley ruled the state was violating the constitutional right to a clean and healthful environment of the 16 youth plaintiffs in the case.
Seeley ruled that a “limitation” to the Montana Environmental Policy Act that was written into state law, which expressly prohibited the state from considering greenhouse gas emissions and how they affect the climate when making decisions about permits for energy projects, violated the provision of the state constitution that guarantees a right to a clean and healthful environment for current and future generations.
Both Seeley and the Supreme Court have denied the state’s request to pause Seeley’s decision pending the appeal to the state’s high court, and attorneys on both sides of the case and many other groups say the Supreme Court’s decision will be a landmark one no matter which side the justices agree with.
Attorneys for the state argued, albeit unsuccessfully, that Seeley exceeded her authority in ordering the MEPA limitation was unconstitutional and that the Held plaintiffs were trying to force the state to perform the greenhouse gas emissions and climate impacts analyses without enough guidance for the state.
But the Supreme Court last week said Seeley did not act arbitrarily nor abuse her discretion, and said it could not find that she did simply because the state finds it burdensome to perform those analyses because the state has done so in the past.
“Since the District Court did not abuse its discretion, the State does not provide good cause to disturb its ruling,” the majority justices wrote in a 5-2 opinion.
With the deadline for the state’s appeal brief about three weeks away, groups that agree with the Gianforte administration’s position in the case have started to ask the court to submit amicus curiae – “friend of the court” – briefs that the court can consider along with arguments from the plaintiffs and defendants during the appeal.
The briefs typically come from people and groups that are not parties in a lawsuit but who might have an interest in the outcome of the case. They can ask the court to participate and offer reasons why the outcome should go one way or another if the court grants them leave to file an amicus brief.
A Kansas man named Byron Trackwell submitted a brief in November arguing there was climate science missed by Seeley in her decision, though she was only allowed to consider the evidence presented at trial, and the state did not call its primary climate expert witness to testify at the trial.
Earlier this month, Missoula attorney Quentin Rhoades asked for, and was given, permission to file an amicus brief on behalf of the sponsors and Republican legislative supporters of two bills that involve the MEPA limitation and litigation over permits: House Bill 971 and Senate Bill 557. The brief is also being filed on behalf of a host of current and former local politicians, several scientists, and general Montana citizens.
And this past week, the Supreme Court received requests to file amicus briefs from the Treasure State Resources Association, a group of companies and organizations involved in mining and energy production, as well as the Frontier Institute, a conservative Montana policy nonprofit formed in 2020.
Both groups argue that the outcome of the case will have sweeping ramifications on them, especially if the court again sides with the youth plaintiffs.
“If the Court were to adopt the District Court’s ruling requiring substantive consideration of carbon emissions, TSRA’s industries and workforce would be prejudiced by the implication of the decision and may be required to expend financial and personnel resources to implement a subjective consideration process, and potentially any resulting not yet established regulation, or altogether cease business activities that utilize Montana’s natural resources,” the Treasure State Resources Association said in its request to submit a brief.
“The outcome of this case raises significant issues that this group and its membership care about, and jeopardizes the economic viability of a large swath of Montana’s most important economic sectors and large employers,” the brief continued.
The group said emitting greenhouse gases to some extent is necessary in order to extract and transport their products, and the filing said its members have broad concerns about what a ruling that sides with the plaintiffs could mean for their businesses.
“The implications, if the District Court’s order were to be affirmed, could impact almost every facet of natural resources use in the state—from large commercial operations to a small scale farmer operating a combine harvester,” the group’s request to file said. “A brief from TSRA is desirable for this Court as it is uniquely positioned to offer state-based and statewide insights and knowledge that would otherwise go unaddressed by other parties.”
Neither the plaintiffs nor the state objected to the group’s request, and the court granted the group’s attorney leave to file the brief by Feb. 16, three days after the state’s appeal brief is due.
The Frontier Institute’s request for leave to file its brief had not been granted as of Monday afternoon, but such requests are typically granted. The organization told the court it would like to file its brief on the same day the state’s appeal brief is due.
The organization said it believes that Held plaintiffs did not have standing to bring the case, though the Supreme Court in June allowed the case to proceed to trial in district court after the state made a similar request to halt the trial over similar claims. The Frontier Institute said in its request that a Supreme Court ruling in favor of the plaintiffs would “fundamentally alter the relationship between Montana’s three branches of governments.”
“It is axiomatic that courts may not hear a case in which the plaintiff does not have standing. A ruling in favor of Appellees in this case will alter that axiom, grafting onto the judiciary power that properly belongs to the people’s representatives,” the filing says. “The Frontier Institute’s mission of working with citizens and legislators to craft policies best suited for Montanans would be undermined if Appellees prevail on their standing argument.”
The organization said it hopes that a brief would help the court evaluate the standing issue as one of “a number of challenging issues” in the case.
Rhoades’ request to file on behalf of the Republican lawmakers and non-legislators, which was granted on Jan. 10, said that group’s brief would help the court “in understanding the scientific analysis upon which the legislators who supported the statutes voted.”
“It is important for the Court to be aware of the legislators’ perspectives, as a great deal of the trial court decision is based on a public policy analysis,” Rhoades wrote in the filing. The group’s brief is also due by Feb. 13.
An attorney for the youth plaintiffs last week said the Supreme Court’s decision not to pause Seeley’s decision was “a positive step” and said the group looked forward to filing its brief in the case.
Once the state files its appeal, the plaintiffs will have 30 days to file their own. Others will also be able to ask to file amicus briefs that argue why a decision on the plaintiffs’ behalf would be beneficial.
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