Montana Supreme Court Rules That The State Constitution Means What It Says

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Article IX of the Montana Constitution is entitled Environment And Natural Resources. In Section 1, Article IX, it says:

The state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations.
The legislature shall provide for the administration and enforcement of this duty.
The legislature shall provide adequate remedies for the protection of the environmental life support system from degradation and provide adequate remedies to prevent unreasonable depletion and degradation of natural resources.

In the 2023 session of the Montana legislature, Republicans passed new laws that attempted to limit the effect of that section of the state’s constitution. In its ruling, the court brushed aside those new laws as being clearly unconstitutional. Montana has the largest reserves of recoverable coal in the nation and has a flourishing oil and methane gas industry. The Guardian reports that its greenhouse gas emissions exceed those of some nations.

A group of young plaintiffs sued, claiming the 2023 law was contrary to the express meaning of the state’s constitution. During a five-day trial, Roger Sullivan, the lead attorney for the young plaintiffs, claimed that climate change is fueling drought, wildfires, extreme heat, and other environmental disasters throughout Montana, all of which are taking a major toll on his clients’ health and well being. There is a “scientific consensus,” he noted, that these changes can be traced back to the burning of fossil fuels. The state argued that whatever emissions occur within its borders are too minuscule to have any impact on the environment globally.

On August 14, 2023, Judge Kathy Seeley ruled in favor of the young plaintiffs. According to the Washington Post, the court determined that a provision in the Montana Environmental Policy Act passed recently by the state legislature that prevents state agencies from taking climate change into account when considering requests for oil and gas drilling permits has harmed the state’s environment and the young plaintiffs by preventing Montana from considering the climate impacts of energy projects. The provision is therefore unconstitutional, the judge ruled.

Montana Supreme Court Agrees

According to KTVH News in Helena, the Montana Supreme Court has upheld the district court ruling and affirmed that the young plaintiffs have a “fundamental constitutional right to a clean and healthful environment.” In a 6 to 1 ruling, Montana’s high court ruled the public’s right to a clean and healthful environment under Montana’s constitution was violated when the state legislature passed a law removing the impacts of greenhouse gas emissions from environmental reviews under the Montana Environmental Policy Act. Chief Justice Mike McGrath wrote the majority opinion.

“Plaintiffs have standing to challenge the injury to their constitutional right to a clean and healthful environment,” wrote McGrath. “Montanans’ right to a clean and healthful environment was violated by the MEPA Limitation, which precluded an analysis of [greenhouse gas] emissions in environmental assessments and environmental impact statements during MEPA review. The State argues that it should not have to address its affirmative duty to a clean and healthful environment because even if Montana addresses its contribution to climate change, it will still be a problem if the rest of the world has not reduced its emissions. This is akin to the old ad populum fallacy: ‘If everyone else jumped off a bridge, would you do it too?’” You probably remember your mother saying much the same thing to a few hundred times when you were young.

One plaintiff, Kian Tanner of Big Fork, told MTN News on Wednesday that he got involved in the lawsuit following his experiences during recent wildfire seasons, when poor air quality forced cancellations of outdoor games and practices. “This is a historic ruling. I think that this sets the precedent not just for Montana and what Montana can do, but it also sets the precedent for the rest of the United States. It also sets a precedent for the world. There has never been a constitutional climate lawsuit that went to trial and was won before us, and I think you’re going to see a wave of rulings following this. It’s exciting and it’s really. It’s powerful,” Tanner said in a video call from Moraga, California where he is now a sophomore at St. Mary’s College.

Governor Greg Gianforte, a Republican, reacted to the decision by the state supreme court exactly as expected. He said in a statement, “While we are reviewing the decision from the Montana Supreme Court, we know what its impact will be: perpetual lawsuits that will waste taxpayer dollars and drive up energy bills for hardworking Montanans. This Court continues to step outside of its lane to tread on the right of the Legislature, the elected representatives of the people, to make policy. This decision does nothing more than declare open season on Montana’s all-of-the-above approach to energy, which is key to providing affordable and reliable energy to homes, schools, and businesses across our state.”

A spokesperson for the office of the Montana Attorney General also expressed disappointment in the decision. “The decision is disappointing, but not surprising. The majority of the state Supreme Court justices yet again ruled in favor of their ideologically aligned allies and ignored the fact that Montana has no power to impact the climate.” In his dissenting opinion, Justice Jim Rice stated the plaintiffs’ alleged injury was abstract, indistinguishable from that of the public as a whole, and was thus not sufficiently concrete for a legal challenge.

The US Supreme Court Won’t Overturn This Decision

The National Law Review wrote this week, “That a state supreme court has reached such a decision is undoubtedly significant. This is now the law in Montana — and effectively unreviewable by the US Supreme Court, as this decision is based upon state law, and as so is beyond the purview of the Supreme Court’s appellate authority. This ruling may also serve as a model for other state courts that have similar provisions in their respective state constitutions (although there are relatively few such states). Perhaps most importantly, this victory by activists pursuing constitutional climate litigation — that state protection from climate change is a constitutional right — will likely encourage further lawsuits along the same lines, and cases of this sort may well proliferate in the near future.”

Writing in his The Crucial Years blog on Substack after this decision was handed down, Bill McKibben said, “This doesn’t necessarily have national implications. Shamefully, the Biden DOJ has buried the federal equivalent, Juliana v. U.S., under a blizzard of writs, picking up where the Trump administration left off. And it probably won’t immediately change Montana’s current commitment to using more gas. But it is a clear moral victory that will cast a long shadow. As Cornell legal scholar Leehi Yona said, ‘This is a historic case and one that could serve as a model for state level lawsuits, particularly as an alternative to federal courts’ (such as the U.S. Supreme Court, which currently seems unreceptive to climate cases).”

He went on to say, “Mostly, I’m happy for the kids involved. I got to interview a couple of them on stage this fall at a gathering sponsored by Protect Our Winters. They were eloquent and moving, and I hope very much that this ruling strengthens their commitment to fight. The Trump era will end someday, and we’ll need a new wave of smart and moral people to carry on the crucial fights — these are them!”

The Law Is The Law

Gianforte is way off-base if he doesn’t understand that a constitution is not a wish list that can be observed only when it is convenient to do so. He is no stable genius, that’s for sure. According to Wikipedia, he is a believer in Young Earth creationism, which holds that the Earth is only about 6,400 years old. Dinosaurs, apparently, are just a myth. He also is not especially good at dealing with those who hold opposing opinions. He was convicted of misdemeanor assault in state court in June 2017 stemming from an incident with The Guardian political reporter Ben Jacobs in May 2017. He was fined and sentenced to community service and anger management therapy.

“The law is a ass,” quoth Mr. Bumble, a character in Charles Dickens’ Oliver Twist. While that may be true, there are asses everywhere today who seem to think the law can be ignored with impunity. One law that is always in force is the one that says using one’s home as a toilet for the detritus left behind by industrial activities will have existential consequences. That is a concept alien to Greg Gianforte and his ilk.