(CN) — Montana officials on Wednesday fought to convince an appellate panel to overturn a big win last year for 16 young climate activists who claim the state’s provisions to an environmental act violated their constitutional right to a clean, healthy environment.
The state appealed the outcome of the trial and a judge’s ruling that the Montana Environmental Policy Act provision that prohibits considering of greenhouse gas emissions and climate change violates the right to a clean environment under the Montana Constitution.
Lewis and Clark County Court Judge Kathy Seeley said Montana failed to show that the provision serves a compelling governmental interest. With the law’s limitation found to be unconstitutional, state agencies can now consider greenhouse gas emissions and the impacts of projects on climate change.
In arguments before a Montana Supreme Court panel Wednesday, attorneys for the state argued that the judicial branch can’t intervene in its decisions on environmental policy. Chief Justice Mike McGrath and Justices Dirk Sandefur, Beth Baker, Ingrid Gustafson, Jim Rice, Jim Shea and Laurie McKinnon sat on the panel.
State attorney Dale Schowengerdt said the plaintiffs didn’t establish that the law caused their injuries and that Judge Seeley cannot affirmatively require state agencies to consider greenhouse gas emissions and climate change in conducting environmental reviews under the act.
He said the judge assumed permitting statutes could be denied based on climate change impacts, making the court “entangled” in policy decisions when the Ninth Circuit Court of Appeals recognized the court’s limited authority to solve issues with climate change.
The federal government can intervene in state policy and evaluate climate impacts, he argued, but the courts cannot.
“These are cases that (create), for better or worse, a political question,” Schowengerdt said. “There’s no doubt the state is funding renewable energy. But there are a lot of competing interests that legislatures have to wrestle with, as we transition to that renewable energy.”
Mark Stermitz, another state attorney, said the lower court ruling did not establish what standard for greenhouse gas emissions agencies should consider when conducting environmental review of developments.
“The judgment of the district court gives no direction on the threshold level to be considered,” Stermitz said.
Attorneys with the Western Environmental Law Center and McGarvey Law represented the plaintiffs, who filed the lawsuit in March 2020 when they were between 5 and 22 years old.
The case always has been about whether it is constitutional to allow agencies to fail to conduct environmental analyses amid a climate crisis, as young people seek redress for harms from those failures, argued attorney Roger Sullivan. He said his clients already face the negative effects of the air pollution and climate change because the state permitted fossil-fuel reliant projects.
Chief Justice McGrath pointed out that the lower court’s ruling did not explicitly require the state to evaluate potential greenhouse gas emissions for future projects. “The only question before the court is whether or not the state agency is precluded from looking at greenhouse gas emissions,” he said.
Other justices questioned the scope of the court’s ability to control state agencies’ actions.
McGrath did not indicate when the panel may rule.
At a press conference outside the Helena courthouse, supervising attorney Nate Bellinger of Our Children’s Trust said his side was confident about the record established in last year’s trial around the state legislature’s actions.
In 2011 the Legislature passed an amendment of the Montana Environmental Policy Act that limited the scope of environmental reviews by prohibiting state agencies from considering actual or potential impacts beyond its borders. But it later adopted another amendment prohibiting state agencies from considering “an evaluation of greenhouse gas emissions and corresponding impacts to the climate in the state or beyond the state’s borders.”
“Last August, we secured a historic win in the district court,” Bellinger said. “That win was based on the record compiled with a seven day testimony, including the testimony of the plaintiffs behind me, supported by their experts.”
He added, “Only the court can declare laws unconstitutional, which is what we’re asking for today. The climate crisis is of systemic proportions, caused by decades of permitting fossil fuel activities in the state of Montana, all but ignoring greenhouse gas emissions.”
Two young plaintiffs, Jeffrey K. and Nate K., said their childhood has been marred already by poor air quality during Montana wildfires.
“My lungs are healing now,” Nate said. “A few months ago, I had pneumonia and had to be in the hospital.”
“There was so much smoke in the air that my brother had to stay inside,” Jeffrey said. “We want other kids to live in a world with clean skies, where they can be outside any time they want. We’re happy to have had the opportunity to be in the Supreme Court today, and hope the government will take action for our lives and futures.”