The Montana Supreme Court this week directed state agencies to include an analysis of greenhouse gas emissions in permitting decisions while it considers an appeal of the landmark Held v. Montana youth climate lawsuit.
At issue is a ruling by Lewis and Clark District Court Judge Kathy Seeley, who heard seven days of testimony last June before ruling in favor of 16 youth plaintiffs who had argued the state’s permissive approach to permitting fossil fuel projects has harmed their constitutional right to a “clean and healthful” environment.
In her August ruling, Seeley directed the state to bring its environmental reviews into alignment with her finding that laws barring the state from considering climate impacts are unconstitutional. In practice, the order effectively directed the state to start analyzing greenhouse gas emissions in the environmental reviews that accompany the permitting process for large energy projects.
The state asked both the Lewis and Clark District Court and the Montana Supreme Court to pause the requirement for emissions analysis until the state’s highest court has an opportunity to consider the appeal’s merits. The state’s request failed to find favor with either court.
Nate Bellinger, senior staff attorney for Our Children’s Trust, which represents the youths, told Montana Free Press that he’s happy with the order but reluctant to read too much into the decision at this early stage in the appeal. Over the next two-and-a-half months, the state and three of its agencies have an opportunity to flesh out the arguments in its appeal, as will the plaintiffs. The Montana Supreme Court can then decide the case based on the filings or schedule an oral argument before issuing a decision.
Bellinger added that he is heartened by the Montana Supreme Court’s affirmation of Seeley’s order denying a stay.
“One thing that comes across pretty clearly throughout the order is that the Supreme Court is finding that Judge Seeley was right — that she considered the evidence and got it right,” Bellinger said. “That’s really what we want them to do on the merits.”
Roger Sullivan, a Kalispell-based attorney who is also representing the Held plaintiffs, told MTFP that the state has approved permits for fossil fuel projects in the five months since Seeley’s order. He said he expects such permitting decisions to fall off now that the state’s request for a stay has been denied.
“The time has come for [state agencies], clearly and unequivocally, to comply with Judge Seeley’s order during the pendency of this appeal process.”
Roger Sullivan, an attorney representing youth climate plaintiffs
“The time has come for [state agencies], clearly and unequivocally, to comply with Judge Seeley’s order during the pendency of this appeal process,” Sullivan said. “They right now — today — have to consider greenhouse gas emissions when they’re deciding whether or not to permit a fossil fuel-related project.”
In an email to MTFP, DEQ Director Chris Dorrington said he is disappointed with the court’s decision.
“I respect the sense of urgency on this issue, but durable solutions to complex issues take time,” Dorrington said, echoing the state’s caution against adopting a “slipshod analysis” that’s been “cobbled together” to avoid lawsuits.
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“We’re committed to getting this right for Montana and avoiding additional costly litigation while we work toward a solution. That is why we asked for a stay,” Dorrington said. Dorrington added that DEQ will continue to work with a newly established group that’s reviewing the Montana Environmental Policy Act in order to make “sound, science-based decisions about how we analyze environmental impacts, including impacts to the climate.”
The Montana Environmental Policy Act, or MEPA, creates a “look-before-you-leap” framework for analyzing the impact of large projects on the environment. Montana lawmakers routinely consider revisions to MEPA, which has changed considerably since it was adopted in 1971. Last year Montana’s Republican-controlled Legislature passed a law barring the DEQ from considering greenhouse gas emissions as part of its MEPA review, a law that found its way into the heart of the Held v. Montana litigation.
“We’re committed to getting this right for Montana and avoiding additional costly litigation while we work toward a solution. That is why we asked for a stay.”
Montana Department of Environmental Quality Director Chris Dorrington
In September, DEQ conducted a series of listening sessions to “thoughtfully review” the implementation of MEPA, which was modeled on the National Environmental Policy Act.
“DEQ is opening a dialogue about whether and how the [MEPA] regulatory framework, enacted in the 1970s and 1980s, should be modernized to reflect the experiences of the past 50 years and the demands of today’s contemporary society,” the agency wrote in a release about the listening sessions.
The agency followed the listening sessions with an announcement earlier this month that it had formed a 19-member working group that’s been tasked with “sustaining and improving” public engagement under MEPA and “determining the applicability and scope” of a climate impact analysis and greenhouse gas inventory and disclosure.
The group is comprised of both Republican and Democratic lawmakers as well as representatives from the energy industry and the environmental community. It will meet regularly during the first half of this year with its first meeting occurring in Helena on Jan. 22.
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