Montana climate ruling could shape future action | Environment - Bozeman Daily Chronicle

Montana climate ruling could shape future action

Regardless of how the Montana Supreme Court approaches the forthcoming appeal to last week’s climate ruling in Helena, the historic win for environmental advocates has already reverberated beyond the state’s borders.

“It’s one of the strongest judicial decisions ever rendered on climate change, and it will be helpful to litigants around the world,” Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia Law School, said in an interview last week.

But, he added, “I can’t say it will necessarily have a huge political impact, given the partisan divisions we have.”

Still, environmental organizations around the country celebrated Lewis and Clark County District Court Judge Kathy Seeley’s decision, which found that the youth plaintiffs in the closely watched Held v. Montana case have a right to a stable climate under Montana’s Constitution.

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A victory in 'the fight of our lives'

“I am so humbled that Montana gets to be a leader in climate justice,” Olivia Vesovich, a 20-year-old plaintiff from Missoula, told a crowd at a celebration in the city’s Bonner Park following Seeley’s order. She added, "This truly is the beginning."
Olivia Vesovich, a 19-year-old plaintiff in the Held v. Montana lawsuit, poses for a portrait during a celebration at Bonner Park on Tuesday evening.

The Montana Wildlife Federation, Northern Plains Resource Council and Montana Conservation Voters all released statements hailing the decision as a major environmental victory, along with Our Children’s Trust, the conservation group behind the Held case. Even the Environmental Protection Agency issued a press release calling the order “a precedent for intergenerational accountability and environmental justice.”

Seeley’s 103-page order details the specific harms suffered by each of the young plaintiffs. They succeeded, the judge ruled, in tying those specific harms to the changing climate and role Montana’s emissions play in helping to drive it.

During the June trial, Vesovich testified to the court that her asthma is triggered by wildfire smoke, to the extent she “feels she is suffocating if she spends more than 30 minutes outdoors.” That smoke has become more pervasive in a state where the wildfire season is already “two months longer than it was in the 1980s” due to declining mountain snowpack, earlier spring melt-off, less summer rain and warmer average temperatures, according to the facts Seeley incorporated into her order.

"Judge Seeley truly listened to all of us," Vesovich said in an interview last week. " ... Knowing that gives me all the hope that I need to keep fighting. This is the fight of our lives."

Seeley also recognized that Vesovich has experienced depression connected to feeling “paralyzed by the impacts and threats of climate change.” She was one of several plaintiffs to make allegations of psychological harm due to climate change.

“This is the first time an American court has found that climate anxiety is a cognizable injury,” said University of Montana Professor and Director of Natural Resources Clinics Sandra Zellmer in an email last week. “Judge Seeley makes a number of explicit factual findings about mental health, including that the individual teens in the case are in fact suffering anxiety and mental health declines due to climate change.”

Montana's role in a changing climate

Among the findings of fact was a critical allegation the plaintiffs’ attorneys prompted their expert witness to repeat, like a steady drumbeat, through the course of the seven-day trial in June.

“Each additional ton of GHGs emitted into the atmosphere exacerbates impacts to the climate,” Seeley wrote, at the conclusion of 28 paragraphs walking through the basic science of human-caused climate change.

That line shoots a hole through one of the state’s central defenses: Even if fossil fuels are a direct cause of climate change, and even if the effects of climate change are hurting young Montanans’ health, livelihoods and future prospects, the state’s heat-trapping emissions are a minuscule drop in the global bucket of greenhouse gases caused by human activity.

“I think that’s one other finding in the case that will resonate, that even a state with a small population can have enough of an impact to make a meaningful impact on climate change,” Gerrard said.
The Colstrip Power Plant is shown on October 2, 2020.

Despite being a small state, Montana’s extensive fossil fuel reserves, along with a major coal-burning power plant and multiple oil refineries, make it a significant contributor to global carbon emissions, Seeley found.

Only five states have a higher per-capita level of greenhouse gas emissions than Montana, the judge wrote in her order. In 2019, the state extracted enough coal, oil and gas to produce about 70 million tons of carbon dioxide, while its fossil fuel consumption resulted in 32 million tons of CO2 being produced. By way of comparison, the EPA estimates the United States as a whole produced more than 5,000 million tons of CO2 in 2019.

“What happens in Montana has a real impact on fossil fuel energy systems, CO2 emissions and global warming,” Seeley wrote.

'A component of compliance’

The most immediate effect of Seeley’s decision is striking down a pair of laws that barred Montana agencies from considering the effects of permitting decisions on climate change, and that erected financial obstacles for the public to legally challenge the state’s environmental reviews.

Years ago, Montana regulators followed a policy of calculating and disclosing the quantity of greenhouse gases that would be released as a result of permitting decisions, like allowing coal mines to expand or new power plants to be built.

That stopped in 2011, but Seeley’s order makes it clear that the state needs to begin assessing those impacts once again, said Roger Sullivan, a Kalispell-based attorney for the plaintiffs.
Judge Kathy Seeley speaks during a hearing in the climate change lawsuit Held v. Montana at the Lewis and Clark County Courthouse on June 20, 2023.

He also noted that the judge’s order concludes that the state has the technical and economic ability to transition to renewable energy sources by 2050.

“Montana can do this,” Sullivan said. “There is a hopeful transition that can be accomplished here. It is realistic, it is achievable and it seems to me a component of compliance with the obligation of the state and agencies to uphold this right to a clean and healthful environment for future generations, that includes a stable climate system.”

A spokesperson for the Department of Environmental Quality, one of the defendants in the lawsuit, said the agency is reviewing the decision and declined to provide details on how it would modify its permitting process to comply with the order.

"DEQ’s mission is to champion a healthy environment for a thriving Montana, and we take that mission seriously," Moira Davin wrote in an email Monday.

The Department of Natural Resources and Conservation, another defendant, likewise declined to comment on how it will comply and referred questions to the Attorney General's office. An AG spokeswoman previously accused Judge Seeley of ideological bias and denied the state has any impact on the global climate.
Olivia Vesovich, 19, a plaintiff in the climate change lawsuit, Held v. Montana, high fives a supporter outside the Lewis and Clark County Courthouse on June 12, 2023, the first day of hearings in the trial.

On appeal

Because the plaintiffs only invoked the Montana Constitution and laws in their complaint, the state Supreme Court will be the final stop for Held v. Montana. The Attorney General's office immediately vowed to appeal Seeley's order, and Sullivan expects it will be about a year before a final ruling is made.

Even if the high court ultimately takes a different tack from Seeley, Gerrard said it’s unlikely the justices would reverse any of Seeley’s factual findings. A departure from the lower court would likely come on a legal basis, he said, like Seeley’s reading of the Constitution and how far its protections extend. Even in that event, however, he said the facts outlined in Seeley’s order are history-making.

“It will be hard for anyone to read the decision and the transcript and not be convinced that climate change is already having a serious negative effect on Montana that will only get worse unless we radically reduce greenhouse gas emissions,” Gerrard said.

The Held case hinged on the state Constitution’s guarantee of a right to a “clean and healthful environment,” along with its provision tasking the Legislature with protecting “the environmental life support system from degradation.” Seeley’s order specifically found that both of those provisions create a right to a stable climate.
Cathy Whitlock, a professor at Montana State University and expert witness for the plaintiffs, testifies during a hearing in the climate change lawsuit, Held vs. Montana, at the Lewis and Clark County Courthouse on June 13, 2023.

The high court has previously given serious weight to that language, most recently in a 2020 opinion cited by the Held plaintiffs. In it, the justices cited transcripts from the 1972 convention when they wrote that the framers of the Montana Constitution “intended it to contain ‘the strongest environmental protection provision found in any state constitution.’”

Zellmer, with the UM law school, noted that Hawaii, Pennsylvania and New York are among the states facing similar lawsuits, and all likewise have constitutional protections similar to Montana’s. In Hawaii, a case brought by the same environmental organization that backed the Held case is headed for a September trial.

“If this decision is upheld by the Montana Supreme Court, it will have even greater precedential impact throughout the country and possibly beyond,” Zellmer wrote.

Photos: Youth climate change lawsuit, Held vs. Montana, gets its day in court

Lead plaintiff Rikki Held is seen at a rally on June 12, 2023 in Helena after the first day of hearings in the climate change lawsuit Held vs. Montana.

Some of the 16 plaintiffs in the climate change lawsuit Held vs. Montana are seen at rally after the first day of hearing in the trial on June 12, 2023, in Helena.

Some of the 16 plaintiffs in the climate change lawsuit Held v. Montana are seen at rally after the first day of hearing in the trial on June 12, 2023, in Helena.

Plaintiffs' expert witness Cathy Whitlock, a professor at Montana State University, testifies during a hearing in the climate change lawsuit Held vs. Montana at the Lewis and Clark County Courthouse on June 13, 2023.

Plaintiffs' expert witness Cathy Whitlock, a professor at Montana State University, testifies during a hearing in the climate change lawsuit Held vs. Montana at the Lewis and Clark County Courthouse on June 13, 2023.

State Attorney Thane Johnson raises an objection during a hearing in the climate change lawsuit Held vs. Montana at the Lewis and Clark County Courthouse on June 13, 2023.

Judge Kathy Seeley speaks during a hearing in the climate change lawsuit Held v. Montana at the Lewis and Clark County Courthouse on June 13, 2023.

Judge Kathy Seeley speaks during a hearing in the climate change lawsuit Held vs. Montana at the Lewis and Clark County Courthouse on June 13, 2023.

Plaintiff Badge Busse is seen during a hearing in the climate change lawsuit Held vs. Montana at the Lewis and Clark County Courthouse on June 13, 2023.

Cathy Whitlock, a professor at Montana State University and expert witness for the plaintiffs, testifies during a hearing in the climate change lawsuit, Held vs. Montana, at the Lewis and Clark County Courthouse on June 13, 2023.

Plaintiffs and observers fill the gallery seating during a hearing in the climate change lawsuit, Held vs. Montana, at the Lewis and Clark County Courthouse on June 13, 2023.

Cathy Whitlock, a professor at Montana State University and expert witness for the plaintiffs, testifies during a hearing in the climate change lawsuit, Held v. Montana, at the Lewis and Clark County Courthouse on June 13, 2023.

Plaintiffs listen to testimony during a hearing in the climate change lawsuit, Held v. Montana, at the Lewis and Clark County Courthouse on June 13, 2023.

Neva Zanoni, 9, in red, and Neko Ensing, 9, make a rally sign outside the Lewis and Clark County Courthouse on June 12, 2023 on the first day hearings in Held vs. Montana, a climate lawsuit brought by 16 youth plaintiffs.

Youth plaintiffs in the climate change lawsuit, Held vs. Montana, arrive at the Lewis and Clark County Courthouse on June 12, 2023 for the first day of hearings in the trial.

Youth plaintiffs in the climate change lawsuit, Held vs. Montana, arrive at the Lewis and Clark County Courthouse on June 12, 2023 for the first day of hearings in the trial.

Youth plaintiffs in the climate change lawsuit, Held v. Montana, arrive at the Lewis and Clark County Courthouse on June 12, 2023, for the first day of hearings in the trial.

Olivia Vesovich, 19, a plaintiff in the climate change lawsuit, Held v. Montana, high fives a supporter outside the Lewis and Clark County Courthouse on June 12, 2023, the first day of hearings in the trial.

Youth plaintiffs in the climate change lawsuit, Held v. Montana, pose for a photo outside the Lewis and Clark County Courthouse on June 12, 2023, the first day of hearings in the trial.

Youth plaintiffs in the climate change lawsuit, Held vs. Montana, pose for a photo outside the Lewis and Clark County Courthouse on June 12, 2023, the first day of hearings in the trial.

Rikki Held, the lead plaintiff in the climate change lawsuit, Held vs. Montana, is seen outside the Lewis and Clark County Courthouse on June 12, 2023, the first day of hearings in the trial.

Rikki Held, the lead plaintiff in the climate change lawsuit, Held vs. Montana, is seen outside the Lewis and Clark County Courthouse on June 12, 2023, the first day of hearings in the trial.

Rikki Held, the lead plaintiff in the climate change lawsuit, Held vs. Montana, is seen outside the Lewis and Clark County Courthouse on June 12, 2023, the first day of hearings in the trial.

Plaintiff Rikki Held, center, talks with other plaintiffs before a hearing in the climate change lawsuit, Held vs. Montana, at the Lewis and Clark County Courthouse on June 12, 2023.

Plaintiff Badge Busse shows other plaintiffs a drawing before a hearing in the climate change lawsuit, Held vs. Montana, at the Lewis and Clark County Courthouse on June 12, 2023.

Attorneys prepare before a hearing in the climate change lawsuit, Held v. Montana, at the Lewis and Clark County Courthouse on June 12, 2023.

Attorneys for the state of Montana are seen before a hearing in the climate change lawsuit, Held vs. Montana, at the Lewis and Clark County Courthouse on June 12, 2023.

Mae Nan Ellingson, a delegate to the 1972 Montana Constitutional Convention, testifies during a hearing in the climate change lawsuit, Held vs. Montana, at the Lewis and Clark County Courthouse on June 12, 2023.

Plaintiffs' attorney Roger Sullivan questions a witness during a hearing in the climate change lawsuit, Held v. Montana, at the Lewis and Clark County Courthouse on June 12, 2023.

Plaintiff’s attorney Roger Sullivan questions a witness during a hearing in the climate change lawsuit, Held vs. Montana, at the Lewis and Clark County Courthouse on June 12, 2023.

Mae Nan Ellingson, a delegate to the 1972 Montana Constitutional Convention, testifies during a hearing in the climate change lawsuit, Held v. Montana, at the Lewis and Clark County Courthouse on June 12, 2023.

Mae Nan Ellingson, a delegate to the 1972 Montana Constitutional Convention, testifies during a hearing in the climate change lawsuit, Held vs. Montana, at the Lewis and Clark County Courthouse on June 12, 2023.

Lead plaintiff Rikki Held takes the stand during a hearing in the climate change lawsuit, Held vs. Montana, at the Lewis and Clark County Courthouse on June 12, 2023.

Lead plaintiff Rikki Held takes the stand during a hearing in the climate change lawsuit, Held vs. Montana, at the Lewis and Clark County Courthouse on June 12, 2023.

Lead plaintiff Rikki Held testifies during a hearing in the climate change lawsuit, Held vs. Montana, at the Lewis and Clark County Courthouse on June 12, 2023.

An attorney for the State of Montana makes an objection during a hearing in the climate change lawsuit, Held vs. Montana, at the Lewis and Clark County Courthouse on June 12, 2023.

Judge Kathy Seeley speaks during a hearing in the climate change lawsuit, Held vs. Montana, at the Lewis and Clark County Courthouse on June 12, 2023.

Lead plaintiff Rikki Held testifies during a hearing in the climate change lawsuit, Held v. Montana, at the Lewis and Clark County Courthouse on June 12, 2023.

Lead plaintiff Rikki Held testifies during a hearing in the climate change lawsuit, Held vs. Montana, at the Lewis and Clark County Courthouse on June 12, 2023.

Dr. Steven Running, an expert witness for the plaintiffs, takes the stand during a hearing in the climate change lawsuit, Held v. Montana, at the Lewis and Clark County Courthouse on June 12, 2023.

Dr. Steven Running, an expert witness for the plaintiffs, testifies during a hearing in the climate change lawsuit, Held v. Montana, at the Lewis and Clark County Courthouse on June 12, 2023.

Attorneys for the youth plaintiffs hold a press conference after closing arguments in the climate change trial, Held v. Montana, outside the Lewis and Clark County Courthouse on June 20, 2023.

Attorneys for the youth plaintiffs hold a press conference after closing arguments in the climate change trial, Held v. Montana, outside the Lewis and Clark County Courthouse on June 20, 2023.

Lead plaintiff Rikki Held is seen on June 20, 2023, in Helena, Mont., after the final day in the climate change lawsuit Held v. Montana.

Plaintiffs listen to testimony during a hearing in the climate change lawsuit, Held v. Montana, at the Lewis and Clark County Courthouse on June 20, 2023.

Closing arguments are delivered in the climate change lawsuit, Held v. Montana, at the Lewis and Clark County Courthouse on June 20, 2023.

Judge Kathy Seeley speaks during a hearing in the climate change lawsuit Held v. Montana at the Lewis and Clark County Courthouse on June 20, 2023.

Lead plaintiff Rikki Held listens to testimony during a hearing in the climate change lawsuit, Held v. Montana, at the Lewis and Clark County Courthouse on June 20, 2023.

Judge Kathy Seeley speaks during a hearing in the climate change lawsuit, Held v. Montana, at the Lewis and Clark County Courthouse on June 20, 2023.

Attorneys for the State of Montana are seen before a hearing in the climate change lawsuit, Held v. Montana, at the Lewis and Clark County Courthouse on June 20, 2023.

Youth plaintiffs in the climate change lawsuit, Held v. Montana, arrive at the Lewis and Clark County Courthouse on June 20, 2023, for the final day of the trial.

Judge Kathy Seeley speaks during a hearing in the climate change lawsuit, Held v. Montana, at the Lewis and Clark County Courthouse on June 20, 2023.

Youth plaintiffs in the climate change lawsuit Held v. Montana arrive at the Lewis and Clark County Courthouse on June 20, 2023, for the final day of the trial.