State, plaintiffs deliver closing remarks in landmark Montana climate change trial

Blair Miller

(Daily Montanan) An attorney for the 16 Montana youth who sued the state alleging it’s violating their constitutional rights to a clean and healthful environment said in closing trial arguments Tuesday the state had not shown any compelling interest as to why it should be allowed to continue ignoring greenhouse gas emissions from energy projects.

Meanwhile, an assistant attorney general for Montana argued the trial had been filled with “social and political statements” from the plaintiffs and said the state law passed by the Republican supermajority and signed by Gov. Greg Gianforte in May is the law the state should have to follow because it is the lawmakers, not citizens who sue in court, who decide Montana’s legal future when it comes to preserving the state’s environment.

“What we heard in plaintiffs’ case was not justiciable controversy, but rather a weeklong hearing of political grievances that properly belongs to the legislature, not a court of law,” said Assistant Attorney General Michael Russell. “Ultimately, the Montana constitution and relevant statute do not leave the plaintiffs without recourse.”

Russell argued on behalf of the Department of Justice, which is representing the state and several of its departments that are named defendants in the Held v. Montana lawsuit, that the Montana children and young adults still have the opportunity to lobby their lawmakers, undertake ballot initiative drives, and more to enact their hopes of a state that reduces its fossil fuel emissions moving forward.

“The plaintiffs may not simply assume preference status under the law to evade the democratic process and force their policy views on all Montanans without their consent or participation,” Russell said.

Judge Kathy Seeley, who is likely to rule on the case over the next two months, will decide whether the plaintiffs indeed have had multiple constitutional rights violated – chief among them the right under the state constitution to a clean and healthful environment for current and future generations. Specifically at issue is the law referred to at trial as the Montana Environmental Policy Act “limitation,” which prohibits the state from considering greenhouse gas emissions and climate impacts when looking at whether to grant permits for energy and mining projects.

Last week, top Montana climate and children’s health scientists, as well as emissions specialists and other climatologists from across the country, testified along with most of the 16 plaintiffs – detailing Montana’s energy policies over the past 50 years, the warming effects of greenhouse gases in Montana and the world, and the negative physical and psychological effects children in particular face because of the effects of climate change on the environment.

The youth plaintiffs told the court that because of shorter and warmer winters, hotter summers, smoke-filled air, and extreme weather events that the outdoor activities they cherish are becoming fleeting and harder to accomplish, and that their health is compromised by the increased carbon dioxide concentrations in the air and effects of wildfire smoke.

In closing arguments, Nate Bellinger, an attorney for Our Children’s Trust, the group behind the lawsuit, summarized the week of testimony and praised the 16 plaintiffs for joining the lawsuit and having the courage to discuss what he called “the harms they have each endured at the hands of their own government.”

Bellinger told Judge Seeley that he and his fellow attorneys had proven that the MEPA limitation flew in the face of the youths’ constitutional rights because the scientists had shown that “every ton” of carbon dioxide emitted into the atmosphere is important, and that Montana could do its part even if it is a broader issue.

“The climate crisis is at home in Montana, and it diminishes the lives of each and every one of the plaintiffs,” he told the court. “They said this case is about responsibility and opportunity. They know the transition to clean, renewable energy is coming, but they spoke of how proud they would be if it was their state that led this transition.”

Bellinger said the youth understand there is a “rapidly closing” window to stem the tide of greenhouse gas emissions, which the state had also stipulated as fact in the trial were contributing to human-caused climate change. He said the case would lay “groundwork” for other children and young adults across the country to push for a more sustainable future.

Bellinger told Seeley that the MEPA limitation prohibits Montana analyzing the impacts that cause the most “grievous harms” and said declaring it unconstitutional would allow the state, if lawmakers so chose, to analyze greenhouse gas emissions and climate impacts for energy projects, as was the case in the 2000s before the initial version of the limitation was put into law in 2011.

But on behalf of the state, Russell argued that the plaintiffs did not establish a standard to show that the language of the limitation automatically violates the law, and that the court could not automatically declare a law passed by the legislature unconstitutional without meeting that burden.

“Because it is axiomatic that the constitution contemplates that democracy is the appropriate process for change, some questions, even those existential in nature, are the province of political correctness,” Russel said to finish his closing statements.

Before the closing arguments, plaintiffs’ attorney Phil Gregory told the court that testimony from state expert witness Terry Anderson, which was shown to include muddled emissions data in court on Monday, did not even exist for 2022 when he checked the citations – the Energy Information Administration and International Energy Agency.

Gregory told Seeley to take judicial notice of the questionable data set from the lone expert witness who testified out of three who were originally put on the state’s witness list.

Bellinger noted the muddy data from that lone expert witness during his closing arguments, contrasting Anderson’s testimony with that of the multiple expert witnesses the plaintiffs called and saying they had shown there was no doubt that the state’s work with the fossil fuel industry was contributing to global climate change and that it could be changed if the state was willing.

He told Seeley that the case could be a landmark one similar to cases overturning segregation, giving women the right to vote, and providing for marriage equality.

“The state says this is a fight reserved for the legislature. But we live in a constitutional democracy where fundamental rights are not subject to the outcome of elections,” Bellinger said. “The defendants do not have the discretion to violate or authorize unconstitutional conduct. Montana’s longstanding energy system, which the MEPA limitation is part of, violates plaintiffs’ fundamental constitutional rights. And when constitutional rights are infringed, courts have a duty to provide redress.”

Following the close of the trial, plaintiffs Lander Busse and Grace Gibson-Snyder spoke briefly to members of the press and public along with the plaintiffs’ slate of attorneys. The two plaintiffs said they were feeling hopeful for more to be done following the trial and the international attention it has received.

“It feels like the beginning, really. Really our next step in the process is getting our decision, which we’re really optimistic about at this point,” Busse said. “But also hopefully starting, like we said, a trickle-down of other litigation and activism nationally that we’ve been able to spark here.”

Our Children’s Trust has several similar ongoing lawsuits across the country, but the Held v. Montana trial is the first case to make it to trial. A federal lawsuit, Juliana v. United States, is ongoing after a judge earlier this month allowed the plaintiffs to file another complaint. And the attorneys said Tuesday a judge in a similar Hawaii case has allowed the plaintiffs to go into mediation with the state to see if they can come up with an agreement before a potential trial.

But Gibson-Snyder and Our Children’s Trust executive director and chief legal counsel each said they did not feel like the attorneys for the plaintiffs left any stone unturned at the Montana trial and that it was beneficial to have the evidence and the case out in the public realm as other litigation moves forward.

“We got everything that all of us plaintiffs at least wanted to hear said out there. Everything about how much hope we have based on this case, how much we love Montana, and that this case is coming from a place of love,” Gibson-Snyder. “This is an opportunity for everyone, for our state to be a leader and for everyone to pursue the effects of a green transition. We’re hoping primarily for our constitution to be upheld, but we’re hoping for this to have a resonating effect around the country and around the world really.”