Earth Protect Blog

By Amy Beth Hanson and Matthew Brown

The Associated Press

HELENA, Mont.>> An attorney for 16 young plaintiffs urged a judge Tuesday to strike down as unconstitutional a Montana law that prohibits state agencies from considering the environmental effects when it weighs permits allowing the release of greenhouse gases.

Attorney Nate Bellinger made the plea in his closing argument at the end of a seven-day trial. Plaintiffs say state officials violated their right to a clean and healthful environment, part of the Montana Constitution, by allowing companies to build power plants and expand coal mines, among other things.

“Like other monumental constitutional cases before, the state of Montana comes before this court because of a pervasive systemic infringement of rights,” Bellinger said.

During the first-of-its-kind trial, plaintiffs testified about how increased heat, smoke from wildfires and drought affect their activities and mental health. Native Americans said climate change affects their ceremonies and traditional food sources, and climate experts warned the window to address the environmental damage is rapidly closing.

Montana Assistant Attorney General Michael Russell said in the state’s closing Tuesday that the climate change issue is much larger than Montana can address on its own.

He said calls by the plaintiffs for the state to take the lead in addressing climate change was a social statement, not a legal argument. The case put on by the young plaintiffs was a “week-long airing of political grievances that properly belong in the Legislature, not a court of law,” he said.

“The issue at the core of this case is a fundamental principle of separation of powers,” Russell said. “The power of the state ultimately resides with the people of Montana and the people of Montana are most directly represented by their elected representatives in the Montana Legislature.”

However, the courts can be asked to determine whether laws are constitutional. And many of the plaintiffs are not old enough to vote, the lawsuit argued.

A ruling from state District Judge Kathy Seeley is expected sometime after the parties file their proposed findings in the case, which are due in early July.

One of the plaintiffs, Lander Busse, said he was optimistic that the judge would rule in their favor, adding he hoped the plaintiffs’ case would spark “a trickle down of other litigation and activism nationally.”

If Seeley sides with the plaintiffs and declares the state law unconstitutional, it would be up to the Republican-led legislative and executive branches of Montana’s government to respond. Representatives of Gov. Greg Gianforte’s administration indicated during the trial that there is no basis under state law for rejecting permits for projects, even if their climate impacts are disclosed.

That means a ruling for plaintiffs could increase political pressure on state officials, but it would not have any immediate consequences, said James Huffman, a former professor and dean emeritus at Lewis & Clark Law School who is now living in Montana.

“Republicans in Montana seem pretty fixed in their ways, and I don’t think a decision by this district court is going to change the way that they think about these issues,” Huffman said

A decision against the state also could establish new legal precedent and add to the small number of rulings that have established a government duty to protect citizens from climate change. However, only a handful of states — including Pennsylvania, New York and Massachusetts — have similar environmental protections in their constitutions.

Emily Flower, a spokeswoman for Attorney General Austin Knudsen, described the trial as a “publicity stunt staged by an out-of-state organization that is exploiting well- intentioned children.”

The plaintiffs were represented by attorneys for Our Children’s Trust, an Oregon environmental group that has filed similar lawsuits in every state since 2011 and raised more than $20 million in contributions. None of the previous cases had reached trial.

“Anyone who has any questions about the legitimacy of the plaintiffs’ claims wasn’t listening at trial last week,” Julia Olson, the group’s founder, said in response to Flower’s statement. She noted that the evidence presented by the young people and by scientists for the plaintiffs was largely uncontested by the state’s attorneys.

“The trial has shown the facts are irrefutable,” Olson said.