Next steps in kids' climate case now up to Montana Supreme Court - Independent Record

Next steps in kids' climate case up to State Supreme Court

The final major filings were submitted recently in the kids' climate case that made international headlines last summer, and now the Montana Supreme Court will decide whether to rule on the briefs or set a date for oral arguments.

Multiple people involved, including Attorney General Austin Knudsen, think the court will take up oral arguments, given the high profile of the case.

The latest filing came from the appellants — Gov. Greg Gianforte and agencies under him including the Department of Transportation, the Department of Environmental Quality and the Department of Natural Resources and Conservation — in reply briefs to the plaintiffs' opening brief, which they filed in March.

The reply briefs were largely similar (parties are not allowed to raise significant new arguments on appeal) to the arguments they made in their opening brief with the Supreme Court and the arguments they made before District Court Judge Kathy Seeley in the case they lost.

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Seeley originally ruled last August that the state is violating the plaintiffs' constitutional right to a “clean and healthful environment” — Montana is one of a handful of states with this clause in its Constitution — by not accounting for greenhouse gas emissions and climate change impacts when granting permits under the Montana Environmental Policy Act (MEPA). Her decision struck down a state law barring Montana agencies from considering the impacts of climate change when issuing those permits.

Seeley served up the landmark ruling when she ruled in favor of the plaintiffs, a group of 16 Montana youth, and her decision was seen around the world as one of the most major court rulings for climate change activists in history.

What appears to be most novel in the reply briefs from the state is the expansion on the argument that MEPA is merely "a procedural statute that does not give agencies any authority to condition, modify, or deny permits," and therefore is the wrong document to have at issue in this case.

"These circumstances mean that appellees cannot fairly trace the MEPA limitation to appellees’ so-called climate injuries, even if the focus ignores the minuscule physical connection attributable to Montana," attorneys for the appellants wrote in their reply brief.

The state reiterated the argument that plaintiffs lack standing because nullifying this specific clause of Montana law won't address the harm they've suffered from climate change.

The plaintiffs addressed this argument in their opening brief before the Supreme Court.

"As the trial record and district court’s order make clear, this case is about harm to Montana’s environment, natural resources, and climate (and consequently its children) caused by [greenhouse gas] pollution and climate change. The state’s argument that the framers were not concerned with 'global issues' ... mischaracterizes the distinctly local environmental degradation and injuries at the center of this case," attorneys for the plaintiffs wrote.

In Seeley's decision, she wrote that “Montana’s (greenhouse gas) emissions and climate change have been proven to be a substantial factor in causing climate impacts to Montana’s environment and harm and injury to the youth plaintiffs."

The state also wrote that addressing climate change is a job for the legislative branch, not the courts.

"At its core, the district court’s decision suffers from the obvious, but misguided, desire to meaningfully address the frustrations and angst about climate change expressed by the young appellees. But the Legislature is the proper forum for airing the thorny, technical, and social issues raised by appellees, not the judiciary. Montana’s unique constitutional provisions on the environment should not be the vehicle that substitutes litigation for legislative action," the reply brief read.

"If courts aren’t the right branch of government to determine if an act of the Legislature is unconstitutional or constitutional, then what are they for?" asked Jennifer Rushlow, dean of the Maverick Lloyd School for the Environment at the Vermont Law School.

The argument that the courts are stepping out of their bounds into legislative branch territory is one that has a gripped the Republican party over the last couple years in Montana. Conservatives recently launched a special select legislative committee in response to multiple decisions from the state's courts finding bills the Legislature passed unconstitutional.

Tensions in this case are still running high: Knudsen called the district court proceedings from last summer a "rigged circus" on Friday, the same day the state filed its reply briefs.

If the plaintiffs prevail in the state's high court, the decision will not act as "binding legal precedent" for other states, but "it might give courts courage" in future climate cases, Rushlow explained.