If the Montana Supreme Court upholds a lower court’s decision in the youth climate case, can it force action from the legislature?
In Held v. Montana, is the actual goal of the 16 youth plaintiffs to end mining and oil drilling?
And what are the odds the state Supreme Court overturns the district court judge’s decision anyway?
Last August in an historic decision, Lewis and Clark District Court Judge Kathy Seeley said a law that prohibits the state from considering greenhouse gas emissions in permitting decisions was unconstitutional. An appeal is pending.
Monday, a law professor and environmental reporter talked to 126 people at City Club Missoula about the lawsuit, which drew international attention, and took questions about how the case might unfold at the state’s high court and on the ground, the Daily Montanan reports.
City Club Missoula is an organization with a mission to inspire and inform citizens on vital community issues, and it holds regular forums for civic discussion.
Michelle Bryan, a professor who teaches at the University of Montana law school’s Natural Resources and Environmental Law Program, said many countries have provisions protecting a clean and healthful environment. However, in the U.S., Bryan said few states do.
Montana does, but how language in the constitution applies in the context of climate change is the subject of the Held case, Bryan said. And she said it is difficult to pick out the most relevant phrases in pertinent articles in the Montana Constitution.
“Every single word matters,” said Bryan, with the Alexander Blewett III School of Law at UM.
For example, Montanans have an inalienable right to a clean and healthful environment, but they also have the right to protect their property, she said. A tension exists between the ability to develop land and the need to protect it too, she said.
Bryan said even the preamble identifies the right to a good livelihood, and at the same time, the quiet beauty and grandeur of the state.
“I don’t envy the state agencies that have to try and strike this balance,” Bryan said.
In addition to protecting an individual’s right, the constitution obligates the state to keep the environment clean and even improve on it for future generations.
In Held, however, 16 youth from ages 5 to 22 years old at the time of the trial last June argued Montana was failing in its obligation to protect the environment. Judge Seeley agreed they indeed have that right, and a legislative change that tried to stop the state from considering climate wasn’t constitutional.
Amanda Eggert, a reporter for the Montana Free Press who has covered the lawsuit, said a significant piece of the ruling, as explained to her, is that the judge suggests the atmosphere is part of the environment, and therefore, afforded protection.
“That’s a big piece of the ruling,” Eggert said.
But how much of a factor is Montana, really, when it comes to emissions? One participant asked for the total emissions out of Montana, and Eggert said it was 166 metric tons in 2019, equal to the amount emitted by Argentina and Pakistan.
Another audience member wanted to know what the chances are of the Supreme Court overturning the lower court’s ruling.
In response, Bryan said she believes the Montana Supreme Court will find that climate is covered by the right to a clean and healthful environment given it affects water, wildlife and human health. However, she said the question will be the remedy.
The remedy prompted a question from the audience as well: “Given that the Supreme Court cannot mandate legislation, what can they do to make a resistant legislature take meaningful action about climate change?”
Bryan likened the situation to hard-fought cases on other topics such as Indian Education For All. Generally, she said, plaintiffs end up challenging the executive branch over and over again for not taking action, until finally, a legislative shift becomes apparent.
In the meantime, she said, “it’s a lot of pressure on the agencies.”
And Eggert said already, the legislative branch is butting heads with the judicial branch, so a solution won’t be easy. She said a working group is tackling how the Montana Environmental Policy Act, or MEPA, should work as a result, but its recommendations might not align with the judge’s vision.
MEPA is one way the state outlines how constitutional protections apply.
“It’s fair to say there’s going to be a whole lot of tension as it’s worked out,” Eggert said.
In 1999, one important case in Montana, Montana Environmental Information Center v. Department of Environmental Quality, found that when the state harms the environment — “which is going to happen,” Bryan said — it must have a compelling reason.
She also said the Montana Supreme Court has said preventing degradation doesn’t mean much if harm can’t be stopped in advance: “We don’t have to wait for dead fish to float on the water before this provision (to protect the environment) applies.”
Youth in many other states had brought similar court challenges given the “gridlock” at state legislatures, Bryan said, but the trial drew national and international attention in Montana because the plaintiffs here were the first to have their case accepted by a court; other state courts said plaintiffs raised issues that seemed like problems for the legislature to fix.
“I do think states are paying attention to one another,” Bryan said.
One participant wanted to know if the case was meant to end mining and oil drilling, and Eggert said the plaintiffs are arguing they are suffering constitutional harms as the result of the approach to energy permitting: “The hope is that Montana will decarbonize its electricity generation.”
Eggert said electricity generation ranks No. 2 for emissions in Montana, and agriculture ranks No. 1.
If the decision in Held is affirmed by the state Supreme Court, Bryan said there are logical ways to implement environmental reviews, although other cases will crop up that argue the state needs to do more, too. But she said Montana can look at places that already have been taking climate into consideration if so.
“It’s not easy, necessarily, but we have to figure out how to do it,” Bryan said.
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