Judge Kathy Seeley dismisses claims tied to repealed state energy policy.
By Blair Miller DAILY MONTANAN
A Lewis and Clark County District Court judge this week denied the state’s request for summary judgment in the Montana youth climate change lawsuit, meaning the case is effectively guaranteed to proceed to the trial scheduled to start June 12 in Helena.
Judge Kathy Seeley wrote in her Tuesday order in the Held et al v. State of Montana et al case that the state “did not establish any undisputed facts” that would lead her to grant summary judgment in the case, as the state had requested earlier this month.
Further, she wrote that the issues involving Montanans’ right to a clean and healthful environment and whether the state is violating their constitutional rights “will be determined after trial.”
“Whether climate change and the [Montana Environmental Policy Act] Limitation impact youth disproportionately is a material fact to be proven at trial,” Seeley wrote in her order.
She said the MEPA “limitation,” or “exception,” as the parties have called it, “hamstrings” state agencies and officials and “appears to conflict with the purpose of MEPA” on its face.
The limitation is a portion of Montana law that originally said most environmental reviews cannot include impacts beyond Montana unless required by a federal agency or required by law, but which was changed by the legislature this year in response to a Yellowstone County judge’s decision regarding the greenhouse gas emissions of a NorthWestern Energy plant in Laurel.
The Republican supermajority legislature suspended the rules to introduce and pass House Bill 971 in April in response to the judge’s ruling, which changed the language of the “MEPA limitation” to say that an environmental review cannot evaluate greenhouse gas emissions or their impacts to the climate anywhere. The new language also said a review could be done if Congress amends the Clean Air Act to regulate carbon dioxide emissions. It was also added in to Senate Bill 557, which Gianforte signed last week.
“The MEPA Limitation clearly implicates Plaintiffs’ fundamental right to a clean and healthful environment. A statute may only infringe a fundamental right if it is narrowly tailored to serve a compelling state interest,” Judge Seeley wrote in her order.
The state had asked Seeley last week to dismiss the remaining parts of the lawsuit following a May 12 hearing after Republican Gov. Greg Gianforte signed the bill amending the limitation. The state had also asked Seeley to dismiss the claims tied to the state energy policy, which the legislature also repealed this year.
Seeley in her order agreed to dismiss the parts of the suit revolving around the energy policy because the legislature had already done away with that part of state statute.
Emily Flower, a spokesperson for the Montana Department of Justice, declined to comment on the judge’s order to the Daily Montanan on Thursday, but rather pointed to a statement she provided the Associated Press in which she said the case was “nothing more than a publicity stunt spearheaded by an out-of-state interest group” that she said was “exploiting” Montana children “to achieve its goal of shutting down responsible energy development.”
Multiple times in her order, Seeley cites a 1999 Montana Supreme Court decision in the “MEIC I” case in which the court decided Montana’s 1972 Constitutional framers “did not intend to merely prohibit that degree of environmental degradation which can be conclusively linked to ill health or physical endangerment.”
She cited multiple framers who said they believed defending a healthful environment both meant there should be no future degradation of it beyond 1972 and that citizens should not need to show their health was hurt to find relief from potential damages.
“In fact, the Court has repeatedly found that the Framers intended the state constitution contain ‘the strongest environmental protection provision found in any state constitution,” she wrote.
She wrote that there was nothing preventing her court from deciding whether the MEPA limitation is constitutional and that the facts of the case so far show the 16 plaintiffs, ages 5 to 22, could have a point that Montana’s policies are affecting the climate and their health.
“Based on the pleadings and discovery, there appears to be a reasonably close causal relationship between the State’s permitting of fossil fuel activities under MEPA, GHG emissions. Climate change, and Plaintiffs’ alleged injuries,” Seeley wrote.
Further, she said, the state has pointed to statute governing specific mining and drilling activities that she says “clearly regulate fossil fuel activities” and that the state could “alleviate the environmental effects of climate change … if they were allowed to consider GHG emissions and climate impacts during MEPA review.”
“The State may not have the power to regulate out-of-state actors that burn Montana coal, but it could consider the effects of burning that coal before permitting a new coal mine,” Seeley wrote. “This Court cannot force the State to conduct that analysis, but it can strike down a statute prohibiting it.”
Seeley said the state’s argument that finding a stable climate system to be part of the constitution’s right to a “clean and healthful environment” and an “environmental life-support system” would lead to absurd results and open the “floodgates” to more litigation did not hold weight and that it “falls flat.”
She said that the state law that limits MEPA reviews “affects MEPA procedure the same way every time—it blocks an entire line of inquiry.”
“Two narrow exceptions, exceptions that merely allow the agencies to conduct the analysis Plaintiffs want them to do, and only when required by Federal law, cannot shield the statute’s main text from constitutional review,” Seeley wrote. “The intent of the Framers was not to lag behind the Federal government in environmental protections, it was to have the strongest constitutional environmental protections in the country.”
She said whether that limitation and climate change affect the plaintiffs disproportionately “is a material fact to be proven at trial.” The trial, which would be the first of its kind from the environmental group Our Children’s Trust to reach that stage, is set to start on June 12.
