On March 13th, a group of Montana’s youth (ranging from the ages of 2-18), filed a complaint for declaratory and injunctive relief in the First Judicial District Court against the State of Montana arguing they are harmed by the “dangerous impacts of fossil fuels and the climate crisis.” [1]
The youth maintain the State of Montana’s long-standing fossil-fuel based state energy system [2] and the Climate Change Exception [3] within the Montana’s Environmental Policy Act (MEPA) violates their state constitutional rights.
The Right to a Clean and Healthful Environment
Montana’s Constitution provides “All persons are born free and have certain inalienable rights…” including “the right to a clean and healthful environment… for present and future generations.” (emphasis added) [4]. In the seminal 1999 case, Montana Envtl. Info. Ctr. v Dep’t of Envtl. Quality, the Montana Supreme Court held both constitutional provisions “must be read together” and the drafters intended to “provide language and protections… both anticipatory and preventative.” [5]
Montana Envtl. Info. Ctr. arose from an exploration license provided to Seven-Up Pete Joint Venture (SPJV) by Montana’s Department for Environmental Quality (DEQ). SPJV applied for an application to dig a “massive open-pit gold mine” within the Blackfoot River Valley and in close confluence to the Landers Fork and the Blackfoot River. [6] MEIC argued that DEQ illegally amended SPJV’s exploration license to allow for ground water discharge containing high levels of arsenic and zinc into the shallow aquifers of the two rivers, without requiring SPJV to conduct a Clean Water Act non-degradation review. [7] MEIC sought to invalidate parts of the review that excluded considering the nature or volume of the substances discharged. [8]
The Court sided with MEIC determining DEQ’s Clean Water Act review needed to consider the nature or volume of the substances discharged. And failure to do so violated the rights guaranteed under Article II, Section 3 and Article IX, Section 1 of Montana’s Constitution. [9] This case shows how Montana’s constitution can stop mines and possibly fossil fuel development.
The Climate Youth Constitutional Challenge
The youth plaintiffs’ case draws upon the same state constitutional provisions. Again citing Art. II, Sect. 3 and Art. IX, Sec. 1 of Montana’s Constitution, they argue Montana violated their constitutional rights by supporting a fossil fuel-driven energy system. [10] This includes permitting, authorizing, and encouraging fossil fuel production, consumption, and combustion resulting in dangerous levels of Greenhouse Gases emission, “with knowledge of the dangers of climate change since at least the 1960s.” [11]
MEPA’s Climate Change Exception forbids the state environmental reviews of impacts beyond Montana’s borders. This has been interpreted to mean no climate impacts reviews at all, since climate changes necessarily have global causes and effects.
The youth plaintiffs argue that the State’s failures to consider climate change and allow more fossil fuel development leads to the unconstitutional depletion and degradation of Montana’s environment and contributes to the dangerous destabilization of the climate system. [12]
If the youths get their way, the Court will strictly scrutinize and narrowly tailor Montana’s energy approach. As in Montana Envtl. Info. Ctr., the Court may require Montana demonstrate a compelling interest in promoting a fossil fuel-driven economy that can ignore cumulative climate change impacts. [13] The science on climate change is clear. The law should also give clarity. These youth will disproportionately feel climate change impacts and they deserve equal protection.
——
[1] Complaint at 1, Held v. Montana (Mont. Dist. 2020).
[2] See Mont. Code Ann. § 90-4-1001(c)-(g) (codifying Montana’s State Energy Policy)
[3] See Mont. Code Ann. § 75-1-201(2)(a)
(b) An environmental review conducted pursuant to subsection (1) may include a review of actual or potential impacts beyond Montana’s borders if it is conducted by:
(i) the department of fish, wildlife, and parks for the management of wildlife and fish; (ii) an agency reviewing an application for a project that is not a state-sponsored project to the extent that the review is required by law, rule, or regulation; or (iii) a state agency and a federal agency to the extent the review is required by the federal agency.
[4] Mont. Const. art II, § 3; Mont. Const. art IX, § 1; Complaint, supra note 1, at 91.
[5] Montana Envtl. Info. Ctr. v. Dep’t of Envtl. Quality, 230, 988 P.2d 1236, 1249 (Mont. 1999).
[6] Id. at 1238.
[7] Id.
[8] Id. at 1239.
[9] Id.
[10] Complaint, supra note 1, at 91.
[11] Id. at 27, 33, 34, 52, 92.
[12] Id. at 92.
[13] Id.
Post by William Northrop
