‘Running in the wrong direction’

This article is part of a series on the youth-led constitutional climate change lawsuit Held v. Montana, which went to trial in Helena on June 12. The rest of the series can be read at mtclimatecase.flatheadbeacon.com. This project is produced by the Flathead Beacon newsroom, in collaboration with Montana Free Press, and is supported by the MIT Environmental Solutions Journalism Fellowship. 

HELENA — Experts in energy policy and greenhouse gas measurement described a permissive regulatory framework in Montana that contributes more than 100 tons of greenhouse gas to the atmosphere annually during the fourth day of a climate trial brought by 16 young Montanans.

Montana Environmental Information Center co-director Anne Hedges said Montana’s legislative and executive branches are “running in the wrong direction to address the climate crisis” in the expert testimony she provided for the plaintiffs. Hedges said the only way the youth plaintiffs’ constitutional right to a “clean and healthful environment ” can be upheld is if the judicial branch intervenes to implement it.

The Held v. Montana trial before Lewis and Clark County District Court Judge Kathy Seeley has been described as historic. Through the lawsuit, the plaintiffs seek to hold the Montana government accountable for its energy-permitting policies. The 16 plaintiffs, who are between 5 and 22 years old, are arguing that their right to a “clean and healthful environment” has been violated. They are seeking a transition to a less carbon-intensive energy permitting framework by state agencies such as the Montana Department of Environmental Quality (DEQ).

Hedges drew on her 30-year tenure reviewing, commenting on and suing over proposed and permitted fossil fuel projects to provide insight into the state’s energy priorities and how they’ve evolved over the years.

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Hedges said the state has known about the risks presented by greenhouse gas emissions for decades, citing a 1968 environmental conference where a researcher suggested CO2 emissions would increase by 50% in a 32-year period. Such an increase “could spell disaster,” according to a document from that conference. Hedges said that while there have been promising developments in the past quarter-century, including former Gov. Brian Schweitzer’s 2000 appeal to the DEQ to create a plan to combat climate change and the 2017 Montana Climate Assessment conducted during former Gov. Steve Bullock’s tenure, the state Legislature has demonstrated hostility toward clean energy development and a willingness to do the fossil fuel industry’s bidding.

Asked if the state has ever denied a fossil fuel permit, Hedges replied, “not to my knowledge.” She also noted that MEIC has asked DEQ to consider climate impacts in its Montana Environmental Policy Act (MEPA) analyses of power plants and coal mine expansions on multiple occasions. In several such cases, she said, DEQ replied that it could not because such impacts were “regional, national or global in nature” — a reference to an amendment the Legislature made to MEPA in 2011 with greenhouse gas emissions in mind.

Hedges also discussed the 2023 Legislature’s repeal of the Montana Energy Policy, a 30-year-old provision that was struck from statute this spring. The repeal of that policy resulted in a significant narrowing of the scope of the Held v. Montana trial per a May 23 order from Seeley. Hedges said she has not seen an appreciable shift in the state’s approach to energy permitting in the wake of the policy repeal.

During a short period of cross-examination, an attorney for the state asked if MEIC had ever asked the DEQ to initiate a rulemaking process for greenhouse gas emissions. Hedges replied that MEIC’s unsuccessful attempt to establish mercury pollution limits through such a process dissuaded the organization from lobbying for a similar effort to curb greenhouse gas emissions. 

Seeley also heard testimony from Peter Erickson, a mathematically trained researcher with the Stockholm Environment Institute. Erickson was asked to calculate the state’s annual carbon dioxide emissions resulting from the extraction, transportation and combustion of fossil fuels. 

The resulting figures are the sixth-highest, per capita, in the nation and exceed the emissions of more than 100 countries, Erickson said, adding that the state’s remaining supply of coal, oil and gas is substantial.

“Montana is only — quite literally — scratching the surface of the fossil fuels that … are still underground,” he said. Those reserves include the largest recoverable coal deposits in the United States, Erickson said, and 10 times more oil underground than what’s currently being tapped by the state’s approximately 4,000 oil wells.

According to Erickson, Montana’s 2019 emissions stemming from the extraction, transportation and combustion of fossil fuels amounts to 166 million tons — roughly equivalent to the emissions of Argentina, which has 47 million people, and Pakistan with a population of 248 million people, Erickson said. Montana’s population is just north of 1.1 million.

“You can see, on a global scale, how emissions-intensive Montana’s economy is,” he said. 

Asked to respond to the state’s assertion that Montana’s emissions are globally “minuscule,” Erickson said such assertions are “troubling.”

“Everybody has a responsibility to reduce emissions,” he said. “[That characterization] misrepresents the importance of Montana’s substantial carbon dioxide emissions and greenhouse gas emissions, and the cooperative nature of the effort to limit global warming.”

Seeley also heard from two of the plaintiffs during the June 15 proceedings: 17-year-old Kian Tanner, of Bigfork, and 20-year-old Claire Vlases, of Bozeman. 

Tanner described his connection to the Montana landscape through activities such as fly fishing and skiing, and his love of his family’s 27-acre property near western Montana’s Swan Range. To a ripple of laughter, Tanner said fly fishing is “along with arguing, my biggest connection to my dad” and “100% familial heritage.”

Tanner read from a piece he wrote for Hatch magazine when he was 13 years old titled “Are there any adults in the room?” to inspire a greater sense of urgency among adults. He said he feels angry and disappointed by older generations’ lack of climate action.

“It makes me feel sick, it makes me feel horrified that we aren’t doing what we can,” he said.

Vlases, a college student studying computer science and ethics, said that between longer, smokier wildfire seasons and diminishing snowpacks, climate change has generated unwelcome physical, emotional and economic consequences.

Vlases has a history of engaging with environmental causes: When she was in seventh grade, she raised $125,000 to install solar panels on her middle school’s roof. Vlases said she’s dedicated to effecting change, but feels that rather than supporting her investment in a transition to clean energy, her government is working against her.

Vlases’ parents were once told she would be lucky to walk, she said, but she’s become an avid runner who earns money in the winter by ski instructing at Big Sky Resort — an increasingly uncertain financial prospect, she said, as winter snowfall becomes less reliable. That’s one impact of climate change that was explored in the testimony earlier this week of renowned climate scientist Cathy Whitlock, who also described decreasing summer streamflows in her analyses of precipitation and temperature trends.

Vlases referenced the disability that she’s worked to heal through outdoor pursuits like skiing, biking, running and skiing in her testimony, choking up as she described the frustration she feels at the prospect of being unable to continue doing those activities as snowpacks shrink and increasing levels of wildfire smoke lead to unhealthy air quality.

Vlases said that while she doesn’t often resent the physical challenges she’s encountered, she does struggle to come to terms with the state’s promotion of policies that jeopardize the activities she relies on to maintain her physical strength. 

“[It’s] like a knife stuck in my gut and twisted,” she said. 

Asked to contemplate what a ruling in favor of her and her 15 co-plaintiffs would mean, Vlases said it would be an affirmation that “the Constitution was applied to the facts and our legal system works the way it’s supposed to.”

Friday, June 16, is the final day for the plaintiffs to lay out their case to Seeley before the state will have an opportunity to foreground its arguments. Based on their opening arguments and briefs, Montana’s attorneys are expected to argue that the plaintiffs have no legal foundation to steer the state toward a different regulatory framework and that Montana’s emissions are negligible on a global scale. 

On Friday, Seeley is expected to hear testimony from Lise Van Susteren, a psychiatrist and expert on climate change’s physical and mental health toll on youth; Mark Jacobson, director of the Atmosphere/Energy Program at Stanford University; and youth plaintiffs Lander Busse and Olivia Vesovich.