Montana Kids' Climate Case Goes Back To Court On Appeal

What are the arguments on both sides, and what significance and practical impact could the final judgment have?

The Montana Supreme Court is set to hear oral arguments on Wednesday in a landmark youth constitutional climate case. The hearing comes as the state seeks to overturn the trial court’s groundbreaking decision last summer that delivered a breakthrough victory to the 16 young Montanans who challenged their government over a policy that prohibited consideration of climate change in environmental reviews, effectively shielding fossil fuel projects from public scrutiny over their contributions to the climate crisis during the permitting process.

Montana district court judge Kathy Seeley found this policy, enacted into law as an amendment to the Montana Environmental Policy Act (MEPA), to be in violation of the state’s constitution that provides the right to a clean and healthful environment. Following a seven-day bench trial in June 2023 – the first climate trial of its kind in the US – she ruled on August 14, 2023 wholly in favor of the youth plaintiffs in Held et al. v. State of Montana. Her ruling struck down that law and a related one restricting judicial relief to litigants challenging state fossil fuel permitting decisions on climate grounds. The ruling also affirmed that the young plaintiffs have a constitutional right to a clean and healthful environment, and recognized for the first time that this right “includes climate as part of the environmental life-support system.”

The state defendants, who include Republican Governor Greg Gianforte and several state agencies such as the Department of Environmental Quality (DEQ), promptly appealed the trial court’s ruling. They also requested a stay or a pause on the order taking effect, which Seeley and the state’s Supreme Court both denied. The hearing of the appeal marks another critical juncture for the case, as the Montana Supreme Court will ultimately decide whether or not to uphold the trial court’s decision.

Oral arguments before the state’s Supreme Court in Helena are scheduled to start at 9:30am Mountain time on July 10, and a livestream is available here.


“An Historic Precedent”?

According to Nate Bellinger, a senior attorney with Our Children’s Trust – a nonprofit law firm that represents youth in constitutional climate cases against governments – the Supreme Court will be reviewing the evidentiary trial record upon which Seeley based her decision. That record, he said, is robust and grounded in climate science that the state did not even try to dispute. “We’re optimistic that when the Supreme Court reviews that record, they will come to the same conclusion and affirm the district court’s order,” he said.

That order from Seeley included several important conclusions. First, that the youth plaintiffs have proven standing, meaning they have met the requirements necessary to be in court and to present their case. This is the main issue that the state is arguing in its appeal, claiming the young people have not met their burdens to even be in court in the first place. But Seeley found plaintiffs have established standing, including demonstrating they are being harmed by climate impacts, that this harm is traceable to the state’s conduct of ignoring climate change when approving fossil fuel permits, and that a declaration of constitutional violation can provide some relief to the plaintiffs. On the latter point, Seeley wrote that her judgment “will influence the State's conduct by invalidating statutes prohibiting analysis and remedies based on GHG emissions and climate impacts, alleviating Youth Plaintiffs' injuries and preventing further injury.” Furthermore, her order clarified, contrary to what the state had argued at trial, that regulatory agencies “do have discretion to deny permits for fossil fuel activities that would result in unconstitutional levels of GHG emissions” and unconstitutional degradation of Montana’s environment.

Seeley also concluded that the state law prohibiting consideration of climate in environmental reviews under the Montana Environmental Policy Act (MEPA), or what she called the “MEPA Limitation”, was unconstitutional as it violated plaintiffs’ right to a clean and healthful environment. And she found that this right encompasses climate.

It will be up to the Montana Supreme Court to determine if Seeley was correct in this finding. “On the constitutional issue the question will be whether Montana's right to a clean and healthy environment provision includes a right to a ‘stable climate,’” Pat Parenteau, a climate law expert and emeritus professor at Vermont Law and Graduate School, explained. If the Supreme Court agrees with Seeley on this question, Parenteau said it “will represent an historic precedent in the sense that for the first time, a US court will have recognized a constitutional right to a stable climate.”

Seeley’s ruling has been described as “historic,” and Michael Gerrard, founder and faculty director of the Sabin Center for Climate Change Law at Columbia Law School, has called it “the strongest decision on climate change ever issued by any court.” Bellinger said it therefore matters a great deal that the Montana Supreme Court upholds it.

“That order that we received in the district court last summer was just an incredibly strong order,” he said. “It’s been getting attention from legal experts all over the world. If we get a Supreme Court affirming it, it would give it more weight going forward, both in Montana and as persuasive authority elsewhere.”


The State’s Argument

In its appeal, the state is mainly arguing that plaintiffs lack standing and the case should never have gone to trial. The so-called MEPA Limitation, the state contends, cannot be the cause of general and global climate change harms, and invalidating this statutory provision will not substantially provide relief from climate harms. “Declaring unconstitutional one narrow provision of MEPA will not alleviate global climate change,” the state argues in its opening brief on appeal.

As Climate in the Courts reported previously, the state does not appear to be challenging, at least not directly, the trial court’s finding that the MEPA Limitation policy was unconstitutional. Bellinger said this is basically a concession. “They’re not really defending the [MEPA Limitation] law as constitutional,” he said.

What the state is arguing instead is that essentially nothing about the government’s conduct will meaningfully change because the courts cannot tell the political branches what to do. So even if the MEPA Limitation is unconstitutional, the state argues that agencies “are not required to analyze GHG emissions and climate impacts in MEPA reviews.” They would not be prohibited from doing so, but they are not mandated to do this analysis, and even if they do it, the state says it has no bearing on their permitting decisions.

“I think, ultimately, they want to be unencumbered by the Montana constitution, and by the Montana courts, and to be able to do what they want to do and make whatever permitting decisions they want without a check from the courts,” Bellinger said.

The interpretation of Seeley’s order may be an issue the Montana Supreme Court will have to resolve - whether the order requires an evaluation of a fossil fuel project’s greenhouse gas emissions under MEPA, or whether it merely eliminates the statutory impediment to doing this evaluation.


Plaintiffs’ Position

“It’s our position that [the order] does obligate [state defendants] to consider climate impacts,” Bellinger said. “Especially when you consider Judge Seeley found that right now, today, the baseline is there is an unconstitutional level of greenhouse gas emissions, and every additional ton makes those [climate-related] injuries worse.”

Bellinger and other lawyers for the youth plaintiffs argue that the state does not have unlimited discretion to continue approving every fossil fuel permit as they have done historically, because agencies’ authority is constrained by the state constitution. If going forward the government continues “to approve every [fossil fuel] permit as they have done historically, that would be unconstitutional, and we will hold them accountable if that is their plan,” Bellinger said.

Plaintiffs’ lawyers will be arguing that Seeley’s ruling was correct – that plaintiffs do have standing, that the MEPA Limitation is unconstitutional, and that fulfilling MEPA’s purpose under the state constitution necessarily means taking climate impacts into account in permitting decisions.

“I think the purpose of MEPA is to help [state regulators] do that scientific and factual review to evaluate whether or not these projects are needed and weigh the climate harms that would result from approving the projects,” Bellinger said.

“I always want to give the government the benefit of the doubt that they’ll do the right thing,” he added. “But if they don’t, we could bring enforcement cases if necessary.”


Limitations of the Court Decision

Whether or not the Held case outcome leads to substantive change in terms of the government’s decisions on fossil fuel project authorizations remains an open question.

“Depending on what the [Montana Supreme Court] decides, there will be the need for follow up litigation to force the state to integrate climate impacts into their MEPA assessments and regulatory decisions,” Parenteau said. The trial court’s judgment, in his opinion, is “mainly a procedural victory with very limited practical consequences in Montana or elsewhere.”

Gerrard agreed. “The symbolism of the Held decision is more important than its immediate practical impact,” he said, “since there is little reason to believe that if the State of Montana does consider climate change it will then actually reduce its production of fossil fuels, at least with its current government.”