Judge tells constitutional climate case attorneys to prepare for trial despite new laws - Independent Record

Judge tells constitutional climate case attorneys to prepare for trial despite new laws

A Lewis and Clark County judge on Friday told attorneys in the nation’s first-ever youth constitutional climate case they should continue prepare for trial as she reviews recent bills passed by the Montana Legislature that could have a direct bearing on the case.

Attorneys for both sides debated the states' motions for summary judgment and to partially dismiss the upcoming trial on the basis of mootness.

“I would suggest you continue to prepare for trial until you get an order,” 1st Judicial District Court Judge Kathy Seeley said. “... I don’t find this to be nearly as substantive to the issues raised in this case as you do. It is the statute that they cited, it has been clarified, and it seems to me that preparations that you have done would all be applicable to this statute as amended.”

Four of the 16 youth plaintiffs in Held v. Montana were present — Mica, 14, of Missoula; Taleah, 19, of Polson; and Lander, 18, and Badge, 15, both of Kalispell. Only their first names were used in the lawsuit because they were minors when it was filed. The case is named for Rikki Held of Broadus, who was the only plaintiff over the age of 18 when it was filed in 2020. The plaintiffs’ ages range from 5-22, and they’re from all around Montana including Big Fork, Helena, Livingston, the Flathead Indian Reservation and more.

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The plaintiffs originally asked the court to declare Montana's State Energy Policy Goals and the climate change exception in the Montana Environmental Protection Act (MEPA), which makes it so the state doesn't have to consider climate impacts beyond its borders, as unconstitutional.

The attorneys for the state highlighted that both the energy goal statements and the MEPA climate exception have been repealed by this year’s Legislature with the passing and signing of House bills 170 and 971. HB 170 repealed the State Energy Policy Goals, and HB 971 revises MEPA to exclude the use of greenhouse gas evaluations in environmental analyses of large projects such as mines and power plants.

The states' attorneys asked, “How could the court invalidate and enjoin the enforcement of a statute that no longer exists?”

The state's attorneys brought up that the attorneys for the youth plaintiff’s have created “moving targets” by now claiming that they’re challenging the state's “de facto energy policy" instead.

They addressed the motion for summary judgment by asserting the plaintiffs' remaining relief claims aren't resolvable due to a lack of standing, failure to name indispensable parties, redressability beyond the court’s reach, and that by claiming a constitutional right to a stable climate would lead to “absurd results” such as the carbon dioxide from humans breathing being labeled as a constitutional violation.

Seeley said that the defense may be “going to an extreme that isn’t what we’re contemplating here.”

The plaintiffs' attorneys argued that the repeal of the statutory energy policy act doesn’t vitiate other claims from the plaintiffs such as “the implicit and de facto state energy policy as well as the aggregate acts.”

They said the case needs to go to trial because the youth plaintiffs are still seeking declaratory and injunctive relief from Montana’s fossil fuel-based energy policy that is violating their constitutional right to a clean and healthful environment.

Roger Sullivan, an attorney for the plaintiffs, brought up Montana's supermajority in the Legislature and how the passing of last-minute laws trying to prevent a case from going to trial is "contrary to the jurisprudence of this state — an vitiation and an abrogation of the judiciary’s responsibility to uphold these constitutional rights."

The plaintiffs' attorneys said they have testimony from the head of the Montana Department of Environmental Quality and the director of the Montana Public Service Commission that they will follow a judicial declaration on permitting activity in Montana if one is given.

“There has never been an application for a fossil fuel permitting activity that has been denied by an agency of the state of Montana that is before this court as a defendant,” Sullivan said.

The attorney for the DEQ, which is named as a defendant, said that an amendment signed into law recently (HB 971) “fundamentally affects” the court’s subject matter jurisdiction in the case and that there can’t be a trial if the court doesn’t have subject matter jurisdiction.

The attorneys for the youth plaintiffs stated that that position has no basis in law or fact and that HB 971 won’t alter or change the positions of the parties because it’s what Montana agencies have already been doing — excluding greenhouse gas evaluations.

Seeley submitted the motions. Trial is set to start on June 12 in Seeley's courtroom in Helena.