"The framers of the Montana Constitution intended it to contain 'the strongest environmental protection provision found in any state constitution' that is 'both anticipatory and preventative.'"
That is how Chief Justice Mike McGrath referred to the Montana constitution's provision that ensures the citizens of Montana the "right to a clean and healthful environment" and on which he grounded the majority's opinion in his December 18, 2024, holiday gift to the environment and the 16 youth plaintiffs in Held v. Montana.
The 48-page Supreme Court's opinion upheld the rulings of District Court Judge Seeley in he r103-pageopinion that followed a seven-day trial held between June 12-20, 2023. As this is the first case in the U.S. to reach trial, in my earlier blog posts, I detailed the proceedings over several years and posted comments on the Public Trust Doctrine and the trial.
Summary of the Issues on Appeal and the Court's Decisions
I list here the four issues on appeal to the Court and provide exact quotes from the opinion.
Issue One: Whether the Montana Constitution's guarantee of a "clean and healthful environment" includes a stable climate system that sustains human lives and liberties.
"The District Court's conclusion of law is affirmed: Montana's right to a clean and healthful environment and environmental life support system includes a stable climate system, which is clearly within the object and true principles of the Framers inclusion of the right to a clean and healthful environment."
Issue Two: Whether plaintiffs have standing to challenge the constitutionality of the Montana Environmental Policy Act (MEPA) Limitation.
"Plaintiffs have standing to challenge the injury to their constitutional right to a clean and healthful environment. . . Plaintiffs have standing for the declaratory and injunctive relief they seek because they allege that the MEPA Limitation violates their right to a clean and healthful environment and declaring it unconstitutional will alleviate the harm that that statute causes to their constitutional right."
Issue Three:Whether the MEPA Limitation is unconstitutional under the Montana C onstitution's right to a clean and healthful environment.
"Foreclosing environmental review of [greenhouse gas] GHG emissions under MEPA prevents state agencies from using any information garnered during this process to inform and strengthen substantive permitting or regulatory decisions or any mutual mitigation measures or alternatives that might be considered when the environmental harms of the proposed project are fully understood. The MEPA Limitation arbitrarily excludes all activities from review of cumulative or secondary impacts from GHG emissions without regard to the nature or volume of the emissions absent a requirement by federal law.
The MEPA Limitation thus violates those environmental rights guaranteed by Article II, Section 3, and Article IX, Section 1, of the Montana Constitution. The District Court is affirmed: section 75-1-201(2)(a), MCA, is unconstitutional and the State is permanently enjoined from acting in accordance with it."
Issue Four: Whether the district court abused its discretion by denying the state's motion for a psychiatric examination under Rule 35.
"The State sought an order in the District Court allowing it to conduct a psychological evaluation of eight plaintiffs, including interviews focused on their 'psychological and behavioral history, alcohol and drug use, school performance, and exposure to trauma.'
. . . We need not resolve this issue, as our standing analysis focused on Plaintiffs' injury to a constitutional right rather than to any mental, emotional, physical, aesthetic, or property interests harmed by the State's actions.
"The District Court also concluded Plaintiffs had standing even without considering their psychological harms. Additionally, we note that the State only wanted to examine eight of the plaintiffs. Even absent those eight plaintiffs, the District Court concluded other plaintiffs had standing to challenge the MEPA Limitation. One plaintiff with standing is sufficient.
"The State has failed to show the District Court abused its discretion in finding no good cause to order the Rule 35 examinations."
Two State Statutes Held Unconstitutional
While confirming that the plaintiffs had standing to "challenge the injury to their constitutional right to a clean and healthful environment," the 6-1 majority opinion held that the § 75-1-201(2)(a) of MEPA, which precluded an analysis of GHG emissions in environmental assessments and environmental impact statements during MEPA review, is unconstitutional. In addition, because the State agencies did not appeal the District Court's finding that §75-1-201(6)(a)(ii), MCA (2023) is also unconstitutional, the Supreme Court affirmed the trial court's order enjoining the State from acting in accordance with it.
MEPA Prior to 2011 – GHG Emissions Were on the Permitting Review Table
Prior to the state legislature's action in 2011 that effectively handcuffed state agencies with the so-called MEPA Limitation, state agencies would consider GHG emissions in permitting actions for a variety of operations that resulted in large amounts of GHG emissions; i.e., mining and extraction of coal, oil, and gas; processing, refinement, and transportation of fossil fuels; and consumption of fossil fuels such as in generating stations. MEPA, which was based on the federal National Environmental Policy Act (NEPA), required environmental assessments and impact statements that considered GHG emissions for these types of projects.1
Then, in 2011, the legislature passed the MEPA Limitation, which was particularly explicit stating that, except for narrowly defined exceptions,
"...an environmental review conducted pursuant to subsection (1)may not include a review of actual or potential impacts beyond Montana's borders[emphasis added]."
* And further:
"It may not include actual or potential impacts that are regional, national, or global in nature[emphasis added]." Sections 75-1-201(2)(a), 90-4-1001(1)(c)-(g), MCNA (2011).
It was on the basis of that legislative limitation that state agencies in 2011 stopped analyzing...
