On August 14, a Montana District Court issued a 103-page decision in (Held) invalidating several statutory provisions which prohibited State evaluation of the impacts of greenhouse gas emissions. The ruling has immediate implications for developers of fossil fuel-based projects in Montana and sets national precedent for how plaintiffs can establish standing to bring claims against emitters and producers of fossil fuels.
Montana’s Constitution contains a unique right to a “clean and healthful environment” and requires that the “legislature shall provide for the administration and enforcement of this duty.” Held holds that the restrictions passed by the Montana Legislature, including HB 971 and SB 557 from the 2023 legislative session that prohibit a state agency from evaluating or analyzing the climate change impacts of greenhouse gas emissions associated with a project, are unconstitutional. The decision is immediately effective, meaning that absent a stay from the Montana Supreme Court, any project undergoing review under the Montana Environmental Policy Act (MEPA) that fails to analyze greenhouse gas emissions will likely find any resulting permit subject to collateral attack. While the decision will almost certainly be challenged at the Montana Supreme Court, there is no indication based on current Montana precedent that this ruling will not hold.
The decision is exhaustive in its findings on the impacts that climate change is having on Montana and the individual lives of the plaintiffs — all minors when the action began. And while the Held decision relies on Montana’s unique constitutional provisions, it will likely provide a blueprint for climate change litigation throughout the nation. Specifically, the Held court rejected the argument which often hinders climate change litigation — that environmental plaintiffs are unable to show cause and effect between the challenged actions and the harm stemming from climate change. Rather, the court explicitly found that “[w]hat happens in Montana has real impact on fossil fuel energy systems, CO2 emissions, and global warming” and that the State is able to “alleviate the harmful environmental effects of Montana’s fossil fuel activities” by considering greenhouse gas emissions and climate change in state environmental review.
There are 12 specific projects identified in the decision that were authorized in “ignoran[ce] of climate change and greenhouse gas emissions.” These projects could have their underlying permits challenged. Additionally, there could be potential liability for granting permits to these projects. The decision also suggests that the Montana Public Service Commission may be required to consider greenhouse gas emissions as part of its electric resource planning.
Although the youth plaintiffs were largely successful in this case, the Held court declined to require the State to develop a court-supervised remedial plan, but rather left the legislature and executive branch to carry out their Constitutional mandate consistent with the court’s order. The Held decision does stop short of recognizing a “self-executing” clean and healthful right, recognizing that it is the role of the legislature to implement the “clean and healthful” Constitutional obligation.
Thus, the Held decision puts the spotlight on the Montana legislature, which does not meet for nearly two years, to implement Montana’s Constitutional mandate for a “clean and healthful environment” in the context of climate change. Absent some sort of administrative rulemaking, projects and regulators will face significant uncertainty as to how to evaluate climate change impacts.
Ross P. Keogh specializes in the areas of water rights, energy and real estate law. He represents some of Montana’s largest companies before the Montana Water Court and supports developers across the western United States on tax and regulatory matters. rkeogh@parsonsbehle.com
Leah Trahan is a member of the firm’s Litigation practice team with more than eight years’ legal experience in both the public and private sector. Leah’s current practice focuses on civil litigation, including employment litigation and constitutional law. ltrahan@parsonsbehle.com
Either attorney can be reached at 406.317.7220.
