HELENA, Mont. – Attorneys for Republican officials pressed Montana's Supreme Court on Wednesday to overturn a landmark climate ruling that said the state was violating residents' constitutional right to a clean environment by allowing oil, gas and coal projects without regard for global warming.
Last year's ruling by a state district judge was considered a breakthrough in attempts by young environmentalists and their attorneys to use courts to leverage action on climate change. It must be upheld by the state's high court to set lasting legal precedent.
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Attorneys for officials including Gov. Greg Gianforte told justices Wednesday that climate change is too broad for the courts to fix. They said greenhouse gases from Montana are miniscule on a global scale, and they noted that state law prohibits the denial of fossil-fuel projects based on carbon dioxide emissions.
“Global climate change is a complex issue that can’t be solved by a judicial decision,” state attorney Dale Schowengerdt said.
Instead, the state argued, the plaintiffs — who range in age from 6 to 23 — should be challenging individual permits as they're issued.
“This is an evasion of responsibility," plaintiff Grace Gibson-Snyder, 20, said after the hearing. “It’s an evasion of your constitutional obligation to protect our rights and our state. Why would you not try?”
The seven justices took the case under advisement. A decision could take weeks or months. It will almost certainly be final since the U.S. Supreme Court is unlikely to wade into the state laws at issue, said professor David Dana of the Northwestern Pritzker School of Law.
If the lower court ruling stands, it could nudge fossil fuel-friendly Montana to adopt policies more protective to the environment and potentially influence future climate litigation in other states such as Massachusetts, Pennsylvania and New York, which like Montana have state constitutional protections for the environment.
“The bottom line is whatever the state Supreme Court decides, it's more likely to have an influence” than last year's lower court ruling, said Syracuse University professor David Driesen, an expert on environmental law. “Other states that have those provisions will consider it. They don't have to follow it.”
Officials in Hawaii who faced a similar lawsuit from young environmentalists recently agreed to a settlement that includes an ambitious requirement to decarbonize the state’s transportation system over the next 21 years. And in April, Europe’s highest human rights court ruled that countries must better protect their people from the consequences of climate change, siding with a group of older Swiss women against their government in a ruling with potential implications across the continent.
Those cases and the Montana lawsuit have resulted in a small number of rulings establishing a government duty to protect citizens from climate change. Driesen said that the effects of the litigation on energy policies have been largely indirect, but that as the rulings accumulate, it could increase political pressure on energy companies to invest in cleaner technologies.
Plaintiffs' attorney Roger Sullivan recounted trial testimony from scientists that every ton of greenhouse gases makes climate change worse.
“If nothing is done, it will be much hotter 50 years from now, when these young plaintiffs are my age, because of this climate emergency to which the state of Montana is a substantial contributing factor," he said.
The 16 young plaintiffs described during the trial how climate change is profoundly affecting their lives: that worsening wildfires foul the air they breathe, while decreased snowpack and drought deplete rivers that sustain farming, fish, wildlife and recreation.
Environmental activists have cited the district court ruling in lawsuits challenging permits for a natural gas power plant, an oil refinery, a pipeline and a coal mine, court records show.
However, most of those lawsuits haven't yet been served on state officials as the activists wait for the high court to weigh in, said Derf Johnson, of the Montana Environmental Information Center, a plaintiff in the cases.
State regulators started analyzing some climate-changing greenhouse gas emissions in mid-March in response to last year's ruling. No projects have been denied as a result, said Rebecca Harbage, spokesperson for the state Department of Environmental Quality.
The reviews cover on-site emissions, such as from heavy equipment at a coal mine or a pumping station along an oil pipeline. They don't consider emissions from burning the fuels if that occurs offsite.
District Judge Kathy Seeley said in her August 2023 ruling that it would be up to the Montana Legislature to determine how to bring policies into compliance.
Individuals and organizations supporting the young plaintiffs through court filings ahead of Wednesday's oral arguments included Native American tribes, health experts, outdoor recreation businesses, and athletes such as acclaimed mountaineer Conrad Anker.
Republican legislative leaders, oil and gas interests, natural resource developers, the Montana Chamber of Commerce and the state’s largest utility, NorthWestern Energy, backed the state. NorthWestern is building a gas-fired power plant along the Yellowstone River near Billings that has figured prominently in the dispute over greenhouse gas emissions.
Carbon dioxide, which is released when fossil fuels are burned, traps heat in the atmosphere and is largely responsible for the warming of the climate. June brought record warm global temperatures for the 13th straight month and also was the 12th straight month that was 2.7 degrees Fahrenheit (1.5 Celsius) warmer than pre-industrial times, according to European climate service Copernicus.
Montana’s Constitution requires agencies to “maintain and improve” a clean environment. A law signed by Gianforte last year said environmental reviews may not consider climate impacts unless the federal government makes carbon dioxide a regulated pollutant.
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Brown reported from Billings.