Court Rules Montana Violated Constitutional Rights by Supporting Fossil Fuel Projects

Some of the youth plaintiffs arriving before court proceedings in their landmark state government climate accountability trial, Held v. Montana, which was decided in their favor on August 14, 2023. Photo taken outside the courthouse in Helena, Montana in June 2023. Image: Our Children's Trust, CC

Over three years ago, on March 13, 2020, a group of 16 youths between the ages of 5 and 22 filed a case alleging the state had infringed their rights to a “clean and healthful environment” through its promotion of toxic fossil fuel projects. It is the case known as Held v. Montana.

When the children sued this time, many believed this would eventually go down as one more failed attempt to cause state or national government officials to take responsibility for the climate crisis.  Multiple times before, including in a previous landmark suit filed by another group of child activists in Eugene, Oregon, the government had fought back vigorously, arguing that despite that one of many fundamental purposes of government is to protect its citizens against harm, the climate crisis was simply too big an issue to pin on one state – or one nation – as liable.

History and court precedent also stood against this group. A study released last month by the U.N. Environment Program and Columbia University’s Sabin Center for Climate Change Law showed that 14 such cases to date were dismissed long before reaching trial. Further, up until now, not a single one of the over 1,600 cases similar to this filed in the United States has ever made it to trial.

But this group of litigants, this venue, and this set of legal arguments were very different from those others. That is why they made it to trial and won, in a decision awarded on August 14, 2023.

The case was brought on behalf of the youth group before state court in Montana by Our Children’s Trust, Western Environmental Law Center, and McGarvey Law. That legal team is one common thread with past lawsuits filed regarding children’s rights to health and happiness in the age of the climate crisis. Our Children’s Trust is the same lead law firm which had fought on behalf of that Eugene group several years ago. That case, originally filed in 2015 and known as Juliana v. United States, is still pending, despite high pressure manipulation by first the Trump team and then the Biden regime. A U.S. District Court ruled in June that the case could proceed ahead in open court, though no final trial date has been set yet.

The argument in this case involved a clash between the Montana Environmental Policy Act, a law passed by the state legislature, and the state’s constitution. The Act includes a provision which explicitly blocks the state from considering climate implications of energy projects to be carried out in the state.

Yet in the Montana Constitution, passed in 1972 in its latest revision, it includes several provisions which weigh in on this matter. In its Article II covering “Declaration of Rights”, it has this to say in section 3 of that article, entitled “Inalienable Rights”:

“All persons are born free and have certain inalienable rights. They include the right to a clean and healthful environment and the rights of pursuing life's basic necessities, enjoying and defending their lives and liberties, acquiring, possessing and protecting property, and seeking their safety, health and happiness in all lawful ways. In enjoying these rights, all persons recognize corresponding responsibilities.”

The term “inalienable” is a long-standing legal term which, as used here, guarantees these rights to all Montana citizens as ones which are “naturally given” as of the moment of birth. They are not bestowed by laws that follow after, nor can they be altered by any law and attempting to do so is illegal.

Further, in a landmark legal challenge to the interpretation of this part of the constitution in 1999, the Montana Supreme Court ruled in the case of MEIC v. Montana DEQ, the Court ruled that the inalienable right to a “clean and healthful environment” which is part of Article II, Section 3, of the constitution, is “preventative” in its fundamental nature. In that case, plaintiffs challenged an exemption provided by Montana’s Department of Environmental Quality to the Seven-Up Pete Joint Venture, which would have allowed for arsenic-tainted water to flow into the Landers Fork and Blackfoot Rivers without treatment. The suit claimed allowing that was a violation of one’s right as a citizen to a “clean an healthful environment.

The Court ruled then that the exemption was unconstitutional.

The corrupt Montana DEQ had argued a sort of “prior restraint” defense, saying that without proof of contamination it was wrong to force the treatment process.

The Court’s response was that, “Our Constitution does not require that dead fish float on the surface of our state’s rivers and streams before its farsighted environmental protections can be invoked.” It went on further to say that “the delegates’ [which helped draft this constitution] intention was to provide language and protections which are both anticipatory and preventative.”

The plaintiffs in the current case argued that by Montana actively supported a state energy supply system which is powered by local coal and other fossil fuels, it is a direct contributor to the climate crisis, and by doing so is denying their inalienable rights.

In the 103-page order issued by Judge Kathy Seeley, she sided with the plaintiffs, arguing – just as in the case filed against Montana’s DEQ 24 years earlier – that the Montana Environmental Protection Act (MEPA) including a provision exempting considerations of greenhouse gas emissions from its energy policy matters is unconstitutional, for precisely the same reasons.

“By prohibiting consideration of climate change, [greenhouse gas] emissions, and how additional GHG emissions will contribute to climate change or be consistent with the Montana constitution, the MEPA limitation violates plaintiffs’ right to a clean and healthful environment,” Judge Seeley wrote.

As to the arguments the defendants put up that their actions to greenlight projects with high greenhouse gas emissions could not possibly add up to anything serious enough to matter on a grand scale, the Judge summarily dismissed those arguments.

“Montana’s GHG emissions cause and contribute to climate change and plaintiffs’ injuries and reduce the opportunity to alleviate Plaintiffs’ injuries,” she wrote.

Judge Seeley also supported the youth group’s arguments that every incremental amount of emissions release worsens the situation and must be considered. She said that the plaintiffs would suffer harm from each additional ton of GHG, with damage to them which “will grow increasingly severe and irreversible without science-based actions to address climate change”.

That would have been enough to declare a major victory in this case, but the Judge did not stop there. She went on to strike down a newly enacted 2023 state policy tied to MEPA which was clearly enacted after considering the implications of the current lawsuit. It would have greatly restricted groups’ freedom to sue the state government over permitting decisions authorized by MEPA.

The new policy, Seeley wrote in her decision, “eliminates MEPA litigants’ remedies that prevent irreversible degradation of the environment, and it fails to further a compelling state interest”.

“As fires rage in the West, fueled by fossil fuel pollution, today’s ruling in Montana is a game-changer that marks a turning point in this generation’s efforts to save the planet from the devastating effects of human-caused climate chaos,” said Julia Olson, the executive director of Our Children’s Trust which led the legal team in the Montana matter.

“This is a huge win for Montana, for youth, for democracy and for our climate,” she continued. “More rulings like this will certainly come.”

Groups outside Montana praised the decision for its definitive answer on the issue, and what it could mean for others with pending and planned suit on the issue. One strong vote of support came from Lead Scientist Delta Merner, from the Science Hub for Climate Litigation at the Union of Concerned Scientists.

“The case in Montana is a clear sign that seeking climate justice through the courts is a viable and powerful strategy,” she said.

Response from the losers’ side of the litigation was swift and terse.

Emily Flower, a spokesperson for Montana Attorney General Austin Knudsen, called the ruling “absurd” and said it there is no way Montana residents should be blamed for global heating.

The ruling, Flower said, is “not surprising from a judge who let the plaintiffs’ attorneys put on a weeklong taxpayer-funded publicity stunt that was supposed to be a trial”.

“Their same legal theory has been thrown out of federal court and courts in more than a dozen states,” said Flower. “It should have been here as well.”

Alan Olson, executive director of the Montana Petroleum Association, slammed the court’s action as well. “If this decision stands,” he said, “it will cause great economic harm to the state of Montana.”

Montana does indeed have much to lose from what just happened. The state is home to 5,000 gas wells, and 4,000 oil wells. It has six coal mines, harvesting from the largest reserves of recoverable coal in all states. It also uses coal, the most toxic fossil fuel emissions sources, to produce one-third of all energy for the state. If the court decision remains in place, all those resources and how they are used would be in jeopardy. It would affect not just new permit decisions but renewals as well, in part because those decisions were also made without consideration of global heating impacts. But, the number of people in Montana is relatively small and their greed and unwillingness to accept reality has placed a massive burden on the entire state.

If the court's decision does stand, after court challenges beyond this one, there is much to gain for the residents of the state.

As Judge Seeley noted in backing data supporting her decision, Montana is a “major emitter of greenhouse gas emissions in the world, in absolute terms, in per person terms, and historically.” She cited calculations that Montana, mostly known to the rest of the nation by its tourist designation as “Big Sky Country” with endless magnificent blue skies, currently fills those skies with as much carbon dioxide as is produced by the Netherlands, Pakistan, and Argentina combined.

Spokesperson Emily Flower for the state Attorney General’s office confirmed yesterday that the state will be appealing Judge Seeley’s ruling to Montana’s Supreme Court. It is hoped that logic and reason might prevail at the state's Supreme Court as well.