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Legislative leaders, business groups file briefs supporting state in Montana climate case

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Legislative leaders, business groups file briefs supporting state in Montana climate case

Feb 26, 2024 | 6:20 pm ET
By Blair Miller
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Legislative leaders, business groups file briefs supporting state in Montana climate case
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Rikki Held testifies at the Montana youth climate change trial on Monday, June 12, 2023. (Photo by Blair Miller, Daily Montanan)

Montana’s Republican legislative leaders and a host of think tanks, business organizations, other Republican-led states filed their briefs with the state Supreme Court during the past two weeks arguing why the court should side with the state in the appeal of the Held v. Montana decision.

In the seven amicus curiae – or “friend of the court” – briefs submitted so far this month, the lawmakers and other groups make arguments similar to those the state made in its appeal brief.

In that brief filed earlier this month, the state argues that the 16 youth plaintiffs in the case can point to no direct injury caused by Montana’s prohibition of analyzing greenhouse gas emissions during a review under the Montana Environmental Policy Act and thus do not have standing to bring the challenge.

The amicus briefs and the appeal also argue that Lewis and Clark County District Court Judge Kathy Seeley’s decision in the case is wrongfully being interpreted by the plaintiffs as requiring the state to perform those analyses, when the order only said the state had discretion to do so. And even if that is what the order said, the briefs say that would constitute a court infringing on the duties of the Legislature to create law that upholds the Montana Constitution.

While the Supreme Court will consider the appeal brief from the state, as well as the response from the plaintiffs’ attorneys that is due in the next three weeks, then likely hear oral arguments from each side in the case, justices can also take the amicus briefs into consideration when reviewing the case as a whole and forming their opinions.

Seeley’s order declared the so-called “limitation” to MEPA, put in place in 2011 and amended in the 2023 session, to be unconstitutional and in violation of the right to a clean and healthful environment for present and future generations found in the state constitution.

The limitation, as it was called during the trial, originally said environmental reviews for projects could not include a review of impacts outside of Montana. The Republican supermajority Legislature amended it last spring to prohibit the state from evaluation greenhouse gas emissions and climate impacts both in- and outside of Montana unless the federal government decides they needed to be regulated.

Last week, Senate President Jason Ellsworth, R-Hamilton, and House Speaker Matt Regier, R-Kalispell, submitted their brief on behalf of the Legislature calling Seeley’s decision a violation of the separation of powers.

When Republicans first introduced the bill during the back half of the session last year, Regier had told his caucus that the bill was a direct response to a Yellowstone County judge’s decision that put the brakes on a NorthWestern Energy power plant in Laurel because it did not include an analysis of greenhouse gas emissions.

In their brief and in statements, Regier and Ellsworth said the Yellowstone County decision and Seeley’s decision both constituted “judicial overstepping” because they argue the Legislature has the sole power to determine how the state carries out the required right to a clean and healthful environment.

“Given this specific requirement for The Legislature to provide for the administration and enforcement of the duty to ensure the promise of a ‘clean and healthful environment,’ The Judicial branch must presume that The Legislature is enacting laws mindful of both Art. II and Art. IX,” an attorney for the legislative leadership wrote. “The District Court must give deference to The Legislature’s determination of what that duty requires, even if it does not agree with the Legislature’s approach.”

Most of the Republican leadership’s argument centers solely around that question over the separation of powers, but in statements, they both made claims that align with the business and mining groups about how Seeley’s decision, if upheld, could harm those business interests that rely on emitting greenhouse gases. The plaintiffs in the case had originally challenged Montana’s energy policies as a whole and what they said was the state’s unnecessary reliance on burning and mining fossil fuels to provide energy.

“When should a natural gas plant be brought online, in addition to a solar farm? What is the proper balance among carbon emissions, energy production, and the cost of electricity and heat?” Ellsworth said. “These are complex problems that require careful policymaking with robust public input. The Legislature is the only branch of government designed to take input from all stakeholders and make those policies on behalf of the citizens of Montana.”

Similar arguments permeate the remainder of the amicus briefs, filed on behalf of companies and groups including NorthWestern Energy, 14 states, several chambers of commerce, the Montana-based conservative think-tank Frontier Institute, several Montana mining companies and organizations, and the Navajo Nation.

Fourteen Republican-led states, led by North Dakota, said in their brief that moving toward an energy grid made up of more renewable resources “has put our national power grid in a very dangerous position” and that the U.S. is “careening rapidly towards a cliff of pervasive, recurrent power failures.”

They said, like some of the other groups, that any requirement of Montana to regulate greenhouse gas emissions in other states would violate federal law, and that elected officials speak for the people and have the sole discretion to make policy. They contend that Seeley’s decision was a political decision.

“Maybe the deaths and inequities attributable to an unreliable power grid in the short term are worth it because the deaths and inequities attributable to climate change will be worse in the long term. Maybe not,” the states said in the brief. “That is a profound question involving a multitude of uncertainties and value judgments. That is also a question worthy of society-wide contemplation, discussion, and debate. What that is not, however, is a question that lies within the judicial competence.”

NorthWestern’s brief says, like the state’s, that Seeley did not use the correct standard of review in the case because the plaintiffs cannot prove that the limitation to MEPA, which they say is merely procedural to inform other permitting statutes, caused the climate change on a global scale as well as their injuries.

“The entire justification for the district court’s facial invalidation of the MEPA limitation rested on a false legal premise, and consequently the district court’s judgment should be reversed,” the company’s attorneys wrote in their brief.

The Navajo Transitional Energy Company owned by the Navajo Nation also runs the Spring Creek Mine in Montana as part of its economic development portfolio. The company and several other mining companies and organizations made the argument in separate briefs that upholding Seeley’s order could have devastating effects for their business interests, which rely on people burning their products and require fossil fuel emissions for the production and transportation phases.

The Frontier Institute and a series of oil and gas and coal companies said in their brief that courts should have no role in shaping public policy to address climate change because, as the state has argued, Montana’s emissions are a drop in the bucket compared to the global scale.

Their brief says that if Seeley’s conclusions are correct, every human on earth is responsible for emissions and that there is no way the plaintiffs in the case can distinguish their injuries caused by climate change from any other person.

“There is no set of individuals who can identify an injury peculiar to themselves that is not shared by all. Nor are there any individuals or entities who can be identified as the principal, or even a meaningful, cause of climate change,” they argued. “As a result, there is no judgment or order any court can enter that will stop or reverse climate change. Because no one has standing, the best court this Court can take is to vacate the lower court’s decision and remand with instructions to dismiss.”