An Update from Montana

By Katherine Brann Fredricks

Winning rulings in Montana, Hawaii, and Pennsylvania show that constitutional environmental rights amendments are the most effective tool to prevent environmental degradation and protect human rights, clean air, pure water, and a healthy environment. Winning lawsuits in these states inspired OCERA to propose its own constitutional amendment, enshrining the right to a healthy environment in Oregon’s constitution.   

The State of Montana has never denied a fossil fuel permit.  For that reason, in 2020, sixteen Montana youth sued the State of Montana challenging the constitutionality of state energy policies, the state’s systemic permitting of fossil fuel projects, and a law that required state agencies to ignore greenhouse gas emissions and climate change impacts when conducting environmental reviews of proposed fossil fuel projects.  The named plaintiff in this groundbreaking lawsuit, Held v. Montana, is a rancher’s daughter.  Rikki Held experienced drought, flood, and extreme summer heat while working the family ranch. 

Another of the 16 youth plaintiffs is Sariel Sandoval, a member of the Confederated Salish and Kootenai Tribes.  Sandoval told the court that Native people “lived through genocide, assimilation, relocation, termination and so many other traumas. I believe we can definitely adapt and survive climate change, but that doesn’t make it right. We’ve done it before, but that doesn’t mean we need a round two.”

The lawsuit alleged that Montana’s pro-fossil fuel laws and policies violated the constitutional rights of Montana’s children to a clean and healthful environment, in addition to their rights to  dignity, safety, health, life, and liberty.

In an historic 2023 decision, Judge Kathy Seeley struck down as unconstitutional the law that required state agencies to ignore greenhouse gas emissions and climate change impacts when conducting environmental reviews, instructing Montana to stop turning “a blind eye to young people’s climate injuries while promoting fossil fuel activities that violate their constitutional rights to a clean and healthful environment, including a livable climate, their dignity, safety and equal protection of the law.”

Based on the uncontested expert testimony Plaintiffs presented at trial, Judge Seeley issued 289 detailed findings of fact concerning climate change science, the unique harms climate change causes to children and youth like Plaintiffs, and Montana’s role in causing and contributing to climate change. In particular, Judge Seeley found that “[e]ach additional ton of greenhouse gases emitted into the atmosphere exacerbates impacts to the climate” and that “[e]very ton of fossil fuel emissions contributes to global warming and impacts to the climate and thus increases the exposure of Youth Plaintiffs to harms now and additional harms in the future.”

Montana appealed.  In a July 2024 hearing before the Montana Supreme Court, state’s attorney Dale Schowengerdt criticized the Held v. Montana’s constitutional approach by complaining that the case is different from all previous lawsuits against fossil fuel projects in that it posed a facial challenge to the statutes at issue and did not concern any specific fossil fuel project.

Mr. Schowengerdt did not deny that climate change is real and human caused.  He instead argued that, because Montana’s EPA is not authorized under state law to regulate CO2, Judge Seeley’s ruling cannot be enforced and fossil fuel permits cannot be denied on the basis of a project’s CO2 emissions.

Roger  Sullivan, representing the youth Plaintiffs, responded that “The Constitution controls Montana’s EPA and not vice versa.” Mr. Sullivan urged the Supreme Court to “fulfill the responsibilities of each generation as trustee of the environment for succeeding generations” and stop harming “all young Montanans now and into the future.”

State’s attorney Mark Stermitz told the Montana Supreme Court, that if Montana followed Judge Seeley’s ruling, it would not stop the climate crisis, because Montana’s CO2 emissions are tiny compared to China’s.  Pollution would continue in other parts of the world.  And Montana would be left with “No cars.  No power plants.  No nothing.”  

Mr. Stermitz’s statement appears to ignore two facts.  First, that renewable energy is now cheaper than fossil fuels for most purposes.  Second, that fossil fuel emissions are counted where the fuel is burned, not where it is extracted.  So even though some Montana coal is burned in Asia, Montana counts the cash from fossil fuels sold, but not the emissions from fossil fuels burned.

Representing the youth Plaintiffs, Roger Sullivan responded that the State of Montana has never presented any “evidence of a compelling government interest to justify” the law that forced state agencies to ignore greenhouse gas emissions and climate change impacts when conducting environmental reviews.

The Montana Supreme Court is now deliberating over the State of Montana’s appeal against the legal victory by sixteen Montana children.  As long as fossil fuel companies and sympathetic state and national governments frame climate change as a political question left to the judgment of the legislative and executive branches instead of a question of fundamental constitutional and human rights necessitating judicial input, there will be a strong need for Constitutional Environmental Rights Amendments.

Watch the entire District Court trial here.

https://heldvmontana.ourchildrenstrust.org/