State files brief before Supreme Court in kids' climate case - Independent Record

State files brief before Supreme Court in kids' climate case

In its opening brief with the Montana Supreme Court in the climate case that made international headlines last summer, the state argued it does not need to comply with an order to take the effects of greenhouse gas emissions into account when issuing permits because that will not 'meaningfully' stave off climate change as a whole.

This filing is one of the first major developments in Supreme Court proceedings after the Gov. Greg Gianforte administration appealed the District Court's decision in the Held case, brought by more than a dozen Montana youths, to the state's high court.

District Court Judge Kathy Seeley originally ruled earlier this year that the state is violating the plaintiffs' constitutional right to a “clean and healthful environment” by not accounting for greenhouse gas emissions and climate change impacts when granting permits under the Montana Environmental Policy Act (MEPA). The case came after the legislature passed a statute barring agencies from considering the climate effects of fossil fuel project leases.

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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.

Only a handful of states have a "clean and healthful environment" clause in state law, and this ruling was seen as one of the first major court victories for climate change activists.

But litigation is ongoing.

Lawyers for the defendants — Gov. Greg Gianforte, the Department of Transportation, the Department of Environmental Quality and the Department of Natural Resources and Conservation — made a couple key arguments in the latest brief, and many of them are familiar from the previous filings in the lower court.

At base, the state is arguing that the plaintiffs lack standing because nullifying this specific clause of Montana law won't address the harm they've suffered from climate change, and that addressing climate change is a job for the legislative branch, not the courts.

"No single judicial action in Montana can meaningfully reduce climate change, and thus redress plaintiffs’ injuries. That would require a fundamental transformation of the world’s energy system," the brief read.

But the founder of Columbia Law School’s Sabin Center for Climate Change Law, Michael Gerrard, said that a judicial ruling does not have to meaningfully solve climate change for the plaintiffs to have standing.

"The U.S. Supreme Court ruled in the landmark 2007 case of Massachusetts v. EPA that lawsuits about climate change are permissible even if they would solve only a fraction of the climate problem," he said. "If suits could only proceed if they would solve all or most of the climate problem, no one would ever be able to sue about climate change."

Because the district court denied the state's motion to have the case dismissed and later ruled against them, lodging an argument about standing at this stage in the proceedings strikes another climate law scholar as "unusual."

"In many other climate cases, the defendants would have filed an interlocutory appeal after the motion to dismiss stage specifically on the standing issue," said Jennifer Rushlow, dean of the Maverick Lloyd School for the Environment at the Vermont Law School."It is kind of unusual that it is coming up now before the Supreme Court after a trial has already occurred."

The state also argues that because MEPA is procedural and does not require government to act in a certain way, the plaintiffs are remiss in suing over a MEPA provision because, as the state sees it, it should not have bearing on which permits are approved or denied.

"MEPA cannot be the legal cause of climate change injuries if MEPA does not give agencies any legal authority to prevent the environmental effects of climate change," lawyers for the state wrote in the brief.

But Gerrard took issue with this argument as well.

"Numerous federal courts have nonetheless held that environmental groups challenging the failure to consider climate change under NEPA have standing to sue," he said.

Notably, the Gianforte Administration's brief also acknowledges the reality of climate change multiple times.

"There is no doubt that many Montanans are understandably concerned about climate change," the brief reads. "But addressing that issue is a matter to be addressed by the policymaking branches."

Both Gerrard and an attorney for the plaintiffs — a group of 16 Montanans ages 6 to 22 at the time of the district court trial — say that the arguments in the brief are "familiar."

"The brief filed Monday is a repeat of the arguments already rejected by the District Court after trial," said Nate Bellinger, an attorney for the plaintiffs. "The 16 youth plaintiffs asked the court to uphold their right to a safe and secure future free from human-induced climate catastrophes, and they won. Instead of doing their part, the state continues to resist complying with their constitutional duty to protect the youth plaintiffs’ fundamental rights."

That said, the defendants are mostly limited to the issues brought up in the lower court and do not have a lot of room to bring up novel legal arguments, Rushlow explained.

Earlier in the proceedings, the Gianforte administration requested a pause in the district court's ruling. A pause would mean the ruling can't go into effect until a final decision is issued by the Supreme Court. In a 5-2 ruling, the state was denied a pause and lawyers for the plaintiffs requested that DEQ immediately start considering climate impacts in project reviews.

In the latest brief, the state objected to the idea that it must start considering climate impacts in MEPA reviews.

Plaintiffs have 30 days to respond to the state's opening brief.