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Rural Montanans Speak Out About Climate Policy While State Waits for Held v. Montana Appeal [1]
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Date: 2024-10-30
While Montana is stuck in legal limbo more than a year after the landmark climate ruling in the Held v. State of Montana case, rural Montanans are making their voices heard about a policy designed to protect their environment.
The case, brought by sixteen youth plaintiffs against the state for violating the Montana Constitution’s guarantee to a “clean and healthful environment,” was found in favor of the youth in August 2023 by the state’s First Judicial District Court. The plaintiffs were represented by Our Children’s Trust, a nonprofit public interest law firm that has brought similar climate litigation to courts around the country on behalf of young people.
The Held ruling dealt with a specific part of Montana’s environmental review process, which is done before granting permits to fossil fuel projects like coal mines or power plants.
Historically, Montana evaluated potential effects on climate and the environment, including greenhouse gas emissions, as part of its review process. In recent years, however, the conservative majority of state legislators has restricted these practices. Amendments to the Montana Environmental Policy Act (MEPA) barred the state from considering climate effects beyond Montana’s borders in 2011, and then from considering fossil fuel impacts at all in 2023.
The 2023 amendment sparked controversy as it was rushed through the state legislature in the months leading up to the Held trial. The bill drew more than 1,000 comments, with 95% expressing opposition, the Montana Free Press first reported.
“As an aging Montanan, mother, and grandmother and steward of our earth for future generations, I am very concerned about the impacts of climate change upon our health and the ability of the planet to sustain our lives… It’s not the 1800s any more when we could just build and plunder to our hearts’ content.” Karen Jarussi, Yellowstone County (59101)
Montana’s Constitution is among a few that spell out the public trust principle – which says the government has a responsibility to protect natural resources like air, water, and wildlife for the benefit of the public. Since this language is clear in the state Constitution’s environmental provision, much of the Held argument hinged on the right to a “clean and healthful environment”.
When the environmental provision is taken in full, however, some legal experts say the law leaves room for interpretation.
Constance Van Kley is an assistant professor of law at the University of Montana, where she teaches Constitutional law and Montana Constitutional law. She said the ambiguity has to do with the language immediately following the state Constitution’s “clean and healthful environment” clause. The second part of the provision says the legislature shall provide for the enforcement of the right to a clean and healthful environment.
Van Kley said the language in this second part introduces a question about how the clean and healthful environment provision should be interpreted. There is discussion among legal experts about whether the legislature has the exclusive power to interpret and enforce environmental rights in Montana.
“The Montana Supreme Court previously has said no, it’s not exclusive, but there are open questions,” Van Kley said.
Environmental groups have argued that amendments to MEPA passed without popular support in the state. The Held plaintiffs took the issue to court. Michelle Bryan, an environmental law professor at the University of Montana, told the Daily Yonder that such litigation can emerge from frustration with the government.
Remy Sexton and Held plaintiff Eva Lighthiser outside the Montana Supreme Court in July 2024. Sexton participated as a youth member of the state’s Department of Environmental Quality work group to review Montana environmental policy. Both Sexton and Lighthiser grew up in Livingston, Montana. (Photo courtesy of Remy Sexton)
“Courts are a place of last resort when problems cannot otherwise be resolved,” Bryan said.
The Held ruling struck down language in MEPA which prohibited the state from evaluating greenhouse gas emissions and climate impacts as part of its environmental review.
The state has since appealed the case and Held is pending before the Montana Supreme Court.
In the meantime, Montana finds itself in a legal gray area with handling environmental reviews for energy projects. Whether – and how – the state should consider greenhouse gas emissions both inside and outside of Montana’s borders, remain open questions.
For Montana’s rural residents, this is an opportunity to get involved.
The Call for Comments
Remy Sexton is an eighteen-year-old graduate of Park High School in Livingston, Montana, where, she said, the Yellowstone River flowing through town is the “lifeblood” of her community.
Sexton was a member of her high school’s green initiative when she first heard about MEPA in December 2023. At that time, Sexton told the Daily Yonder, there was talk of stripping down the state’s environmental protections altogether.
“Learning about it,” she said, “in the context of it maybe going away, as the only environmental law in Montana that keeps the place that I have grown up and love so much as beautiful as it is, was really scary.”
In the aftermath of the Held ruling, discourse surrounding the case prompted the state’s Department of Environmental Quality (DEQ), which is responsible for carrying out MEPA, to launch a full-scale review of the policy.
And while Held remains pending before the Montana Supreme Court, the DEQ’s work group allowed the state to consider how to comply with MEPA changes in the meantime.
The public had no shortage of opinions.
Sexton attended one of four of the DEQ’s public listening sessions in the fall of 2023, where she said she and her Park High School peers were prepared to speak in favor of environmental protections in Montana. Sexton delivered a speech to the DEQ articulating her concerns about climate change and its potential impact on her future.
“No matter your relationship with or use of the land, the importance of preserving the place we inhabit is a core Montana value that nearly everyone can agree upon,” Sexton said in her November 2023 comments. “I can’t watch Montana become unlivable just to alleviate paperwork for state agencies.”
In the fall of 2023, the DEQ opened a portal to collect comments via online submission, and while it was open, members of the public submitted more than 300 comments to the online portal.
Sexton told the Daily Yonder she was surprised by the level of interest the public demonstrated in the listening sessions and via online comments, which the work group reviewed as part of its recommendation-writing process.
A Daily Yonder analysis of the comments found that of those who submitted comments, approximately 66% were from rural communities. Of the rural commenters, 90% expressed favorable views toward strengthening MEPA or including climate effects in the environmental review process.
A few weeks later, as the department prepared to launch a work group to conduct a comprehensive review of MEPA, Sexton was asked to join. The group consisted of individuals and stakeholders from industry, conservation, and government. They met for the first time in January 2024.
The group’s task was to review public comments, along with MEPA’s rules and processes, to make recommendations for the state legislature’s 2025 session. A complete review of this nature had not been done since the late 1980s.
For another member of the work group, Clayton Elliott, the director of conservation and government affairs at Montana Trout Unlimited and a career practitioner of MEPA, engaging with the public provided an opportunity to clear up misconceptions about MEPA. For him, the work group comes after decades of piecemeal changes to MEPA through the amendment process.
“What resulted was forty, fifty years of duct tape and bailing twine holding these statutes together without a real holistic view of what could be and what should be,” Elliott said.
“The challenge with MEPA is that I think there persists a strong misunderstanding of what MEPA is and its role and what it is not,” Elliott said.
Rather than a way to tally votes for or against any particular project in the state – like a coal mine or methane power plant, for example – Elliott said the intent of MEPA is to gather all of the information on a project before making a permitting decision. He said MEPA offers a way for the public to see into the “black box” of the DEQ’s decision making.
Members of the public have continued to express strong support for the DEQ to conduct climate impact assessments as part of the permitting process. Before the work group released its final report and legislative recommendations in June 2024, drafts were made available for public comment.
Over 170 written comments were received from individuals, educators, lawmakers, and health care workers as well as businesses in the state.
Most of the comments about the climate favored including climate impacts in the DEQ’s environmental reviews.
The work group’s review came at a time when not only MEPA, but the Constitutional provision it stems from, are under scrutiny, all of which spells an uncertain future for environmental policy in Montana.
“Our environment affects everything. It is our tourism, our economy, our recreation, our agriculture. Without being able to have a say in what happens to our environment, we lose control of those aspects. Isn't getting rid of this getting rid of our right to free speech and our Constitutional right to a clean environment?”
Alecia Larson, advisor of Park High Green Initiative, Livingston, MT (59047)
The report also calls to improve public engagement, education, and outreach about MEPA to reduce general confusion about the state’s role in conducting environmental reviews.
A Constitutional Right
Montana’s Environmental Policy Act was first adopted in 1971. Like the Montana Constitution, which was ratified in the 1970s, MEPA was written during an era of growing environmental awareness. The Montana Constitution is among few in the country to include a provision for environmental protections.
To make their case, the Held plaintiffs relied on these environmental protections enshrined in the state Constitution. The plaintiffs employed a litigation strategy coined by Mary Wood, a legal scholar and environmental law professor at the University of Oregon School of Law.
The strategy is called atmospheric trust litigation, and it builds on the widely recognized public trust principle.
“The public trust is a very broad principle that says government is a trustee of our crucial resources like water and air and wildlife, and as a trustee, it has to protect them – those resources – for future generations,” Wood said.
“The State of Montana needs to stop wasting time and taxpayer dollars. Time is short. Taxes are rising. The temperature is rising. DO SOMETHING! Use the MEPA process to DO SOMETHING! … Let's be good neighbors and good citizens and care for our place on Earth – and this Last Best Place we cherish and share – by acting responsible.” Hal (Howard A) Schmid, Arlee, MT (59821)
The atmospheric trust litigation applies the public trust concept to climate change, Wood said. Doing so holds the government responsible for protecting the climate for future generations.
Legislators’ View
For the state legislators who supported the 2023 MEPA bill limiting Montana’s ability to consider climate change, the view is that the power rests primarily with the legislature to make decisions about the state’s environmental protections. The fact that their bill was struck down by Held goes against their interpretation of the Montana Constitution.
Representative Steve Gunderson helped the controversial MEPA amendment – the one barring the state from considering fossil fuel impacts – get to the House floor in April 2023. Gunderson is a Republican from Libby and former chair of the state’s Natural Resources Committee. He said the Held case should have never been allowed in court.
“I think it is up to the legislature to pass laws that work with our clean and healthful environment, but there are many, many things that are way beyond our control for a clean and healthful environment,” Gunderson said. He said he thinks Held has “weaponized” the environment clause in Montana’s Constitution.
The Montana Supreme Court’s ruling on the Held appeal could clarify these questions about whether the district court exceeded the limits of judicial power. A decision is expected to be handed down by the end of 2024.
“I think the judiciary got over their skis a bit on that ruling,” Gunderson told the Daily Yonder. “I think the legislature is carrying out the will of the people.”
State legislators are among those paying attention to the Held appeal, said Representative Jonathan Karlen, a Democrat from Missoula and a member of the DEQ work group.
“However the case is decided is likely going to have an impact on what MEPA looks like going forward and what the next legislative session looks like,” Karlen said.
For Representative Karlen, who said Montanans feel deeply about their Constitution’s clean and healthful environment provision, education about MEPA is one way to get the public involved with environmental decisions being made in their communities.
“I think a lot of the consensus from different stakeholders is like, we want the public to be involved, and want the public to feel like they can meaningfully influence the outcome and shape the process,” Karlen said.
Karlen and Elliot both worked on two recommendations for the legislature to boost accessibility and educational resources around environmental policy in Montana.
A Need for a ‘Good Faith Effort’ in the Meantime
Sexton wrapped up her time with the DEQ along with the rest of the work group in June 2024, but the environment is still at the top of her mind.
As she prepares to leave Montana next year to attend school at Middlebury College, she will be watching the state’s 2025 legislative session from afar.
“Climate change has never not felt like the most important thing to me,” Sexton said. “As a kid growing up in a place that’s so interconnected with nature, it has always felt like my priority and my life’s work, even when I was six.”
The work group’s report also lays out recommendations for how the state can comply with the trial court’s orders in the Held case. In light of the ruling, the DEQ is no longer prohibited from including greenhouse gas emissions and climate impact analyses in its environmental review of proposed energy projects.
Bryan said the DEQ needs to show a “good faith effort” that they are preparing to implement a fair and transparent process for reviewing proposals going forward.
“Until we hear further from the Montana Supreme Court, I do think the agency – to comply with the trial court – has to begin doing some climate impact review in the interim,” Bryan said.
“MEPA is a bedrock law that protects Montana, Montanans and Montana Taxpayers…Do not weaken this bedrock law. It is the last line of defense for Montana and Montanans who will ultimately pay the price. If anything, it needs to be strengthened to protect us from unscrupulous companies and their political supporters.” Harvey Nyberg, Lewistown, MT (59458)
According to another Held plaintiff and eighteen-year-old Livingston resident Eva Lighthiser, figuring out how to conduct these analyses is not a new task for the DEQ. Before the 2011 amendment to MEPA, Lighthiser said Montana considered all climate impacts inside and outside of Montana’s borders – what analysts refer to as scope one, two, and three greenhouse gas emissions. Lighthiser said this approach allows for a full consideration of climate change.
Eva Lighthiser, one of the Held plaintiffs, with U.S. Senator Jon Tester during a lobby visit for climate action. Senator Tester is a Democrat from Montana. (Photo courtesy of Eva Lighthiser)
Since the Held ruling, Lighthiser said the state has been hesitant to begin conducting climate impact analyses, and has asked for the public to contribute ideas on how the state should go about doing so.
“However, they do have the knowledge because they used it before 2011,” Lighthiser said.
“Technically, they are supposed to consider climate change when issuing fossil fuel permits, but it hasn’t really happened yet.”
In Oregon, Wood will be focused on the result of the Held appeal. While she is optimistic about the traction that climate cases are gaining at large – in part by using her atmospheric trust litigation strategy – she worries that the planet is running out of time for court rulings to make a difference on slowing climate change.
“It’s a race against time, it’s a race against nature’s tipping points,” Wood said.
“So the only question still in my mind is: will enough judges rise to the occasion in time?”
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