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Impacts of Held vs. Montana decision already being seen in Montana – Daily Montanan [1]

['Blair Miller', 'More From Author', '- August']

Date: 2023-08-16  

The ramifications of a judge’s decision this week in the historic Held vs. Montana trial are already being seen in the Treasure State, and policymakers and lawyers say its impact can’t be overstated in Montana and beyond.

Tuesday, just 24 hours after the Lewis and Clark District Court issued the order anticipated across the country in the climate case, the constitutional protections of a clean and healthful environment permeated a Public Service Commission hearing on NorthWestern Energy’s future energy plans.

“The PSC may not have to comply with the Montana Environmental Policy Act, but the decision yesterday will have a profound impact on our energy future,” said Anne Hedges, with the Montana Environmental Information Center, also a witness for the plaintiffs in the trial. “… This changes everything.”

Montana environmental lawyers also discussed the decision this week as a precedent that could reach well beyond the state’s borders and affect generations.

Longtime top Montana environmental lawyer Jim Goetz, who was not part of the Held case and is perhaps best known for his work defending Montana’s stream access law, said the decision was “a long time coming.”

“We know that climate change is real and that it’s largely human-caused. And yet, we sit around frustrated because it doesn’t seem like anything is being done about it,” Goetz said. “So, it’s really nice, just from an emotional, psychological standpoint, to see this as a striking victory for the environment and for young people.”

Judge Kathy Seeley’s Monday order will be appealed to the Montana Supreme Court.

However, the discussion of climate science within it provides other attorneys and judges with a climate science-based opinion that can be used in other cases both in Montana and out of state, environmental lawyers told the Daily Montanan. And Montanans were ready and willing to talk about their now-affirmed constitutional rights when state regulators hosted the session in Helena to hear from the public about NorthWestern’s plan for future energy resources.

For more than an hour Tuesday at the PSC’s public comment session, citizens repeatedly mentioned climate change and Judge Seeley’s order in the Held vs. Montana case as reasons they felt the plan was inadequate. They argued the monopoly utility did not include enough discussion around renewable resources and ways to move away from generating power by burning fossil fuels.

Seeley’s decision, which made national and international headlines, enjoined two sections of law modified by the legislature this year that prohibited the state from considering greenhouse gas emissions when considering approving energy and mining permits unless Congress decided to start regulating carbon dioxide at the federal level.

It also said the state constitution provides Montanans a fundamental right to a clean and healthful environment for current and future generations, including the climate as part of the environmental support system. The plaintiffs were 16 youth who argued Montana was putting their future at risk by disregarding the effects of emissions on climate.

At the hearing, several other speakers directly referenced the decision, saying they felt the energy company’s plan continues to focus too much on burning coal, oil and gas. They told commissioners it was “backwards thinking” for the company to not cut its coal consumption, and said the company’s plan did not account for human or climate impacts as much as they would like.

Roxa Reller pointed directly to Seeley’s order in telling the PSC the government has an obligation to protect Montana’s environment, saying that her decision showed there was undisputed testimony that moving to clean, renewable energy is technically feasible and economically beneficial in Montana.

“We don’t have to wait for new technology. We have affordable renewable resource technology now: wind, solar, solar voltaic, battery storage, and pumped hydro,” she said. “These resources should be considered in more depth. So, you have the law, the constitution and technology to consider.”

Hedges, director of policy and legislative affairs for MEIC, said that as the Department of Environmental Quality considers NorthWestern’s current and future plants in its Integrated Resource Plan, it will have to be able to deny permits if projects impact the climate.

Three more hearings this week There are three more PSC listening hearings on NorthWestern’s proposal slated for this week: Billings on Wednesday, August 16, at 6 p.m. at the Board of Oil & Gas Conservation headquarters, located at 2535 St. Johns Avenue.

on Wednesday, August 16, at 6 p.m. at the Board of Oil & Gas Conservation headquarters, located at 2535 St. Johns Avenue. Butte on Thursday, August 17, at 6 p.m. in the Butte-Silver Bow Public Archives, located at 17 W. Quartz.

on Thursday, August 17, at 6 p.m. in the Butte-Silver Bow Public Archives, located at 17 W. Quartz. Missoula on Tuesday, August 22, at 6 p.m. in Room 340 of the Missoula College Learning Center (river campus), located at 1205 E. Broadway Avenue. Click here for more information.

“This IRP makes the erroneous assumption that NorthWestern can continue business as usual and receive any and all permits for future fossil fuel projects. This is no longer the case,” Hedges told the commissioners. “And the PSC should object to this IRP because it cannot be relied on going forward.”

Meanwhile, several Montana environmental lawyers and an emissions scientist said in interviews they were “elated” by the decision and the depth of Seeley’s consideration of the constitution and testimony from the plaintiffs’ expert witnesses.

Goetz said he felt there was “little threat” of Seeley’s decision being overturned by the Supreme Court, but he still sees barriers to quick action should Seeley’s full order stand because of the current legislative and executive branches. Montana Republicans held a supermajority in the most recent legislature and hold the governor’s office as well.

“Unless we get some kind of emergency of the center swing in the Republican Party, I’m just not optimistic that we’re going to have a good legislative session in the short run. Hopefully, in the long run, things will change,” he said.

Barbara Chillcott and Melissa Hornbein, Western Environmental Law Center attorneys who worked on the Held case, said they felt that Seeley listened to the plaintiffs and their expert witnesses and understood how their arguments squared with the law and constitution.

Especially key, Hornbein said, was Seeley’s confirmation that having a livable climate is covered in the constitution and that every ton of greenhouse gas emissions matters on the global scale.

Chillcott said she believes Seeley’s decision, should it hold up in the Supreme Court, will eventually move Montana away from a fossil fuel-based energy system.

“The State of Montana has chosen to stick its head in the sand … and I just think they won’t be able to do that anymore,” she said. “I don’t want to overstate the significance of this, but I think that’s hard to do because I really do think it’ll change the conversation for the better.”

In interviews with the Daily Montanan, both said that while Montana’s 1972 constitutional protections put the plaintiffs in a good spot for a favorable outcome, they believe that some of the other rights Seeley said the state was violating – including equal protection, dignity and liberty – could apply to the constitutions of other states and the nation.

The group behind the lawsuit has ongoing cases in other state courts and one in federal court.

“While the clean and healthful or environmental clauses (in the Montana Constitution) are helpful in bringing these cases, I don’t think they’re necessarily necessary,” Hornbein said. “I think just the fundamental rights that we all enjoy as citizens of this country protect us from government action that infringes on those rights by creating an unstable climate.”

Chilcott said she also thought it important that Seeley included so much of the expert climate witness testimony into a judicial opinion, saying the order will filter across borders and into other areas of law. The plaintiffs’ expert witnesses included two top Montana climate scientists and experts on children’s health, greenhouse gas emissions, renewable energy, and climate policy.

“I think it’s hard for us at this point to wrap our heads around what the effects of that will be,” Hornbein said. “But I do think that there will be significant impacts of that going forward – both in the realm of future litigation and on the policy side of discussions.”

And while Seeley’s order did not outright direct the state to look at greenhouse gas emissions for every project, the two lawyers said it set a standard for agencies to consider when approving permits and for lawmakers and agencies to account for when crafting future legislation and rules.

“It’s pretty clear that if a livable climate is subsumed in the right to a clean and healthful environment, woe betide any agency who does not do that. We now have an avenue to litigate that precise issue,” Hornbein said. “And if the legislature won’t say it, we have at least one court now who has made that connection.”

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