HELENA, Mont. — The first youth climate change lawsuit in the U.S. to reach trial will take place next month, though the challenge filed against Montana has been narrowed after a judge dismissed a claim against a state energy policy that's no longer in effect.
The two-week trial is set to begin June 12 before District Court Judge Kathy Seeley in Helena.
Seeley on Tuesday dismissed part of the youth lawsuit that challenged the state's energy policy, saying the only ruling she could have made was to strike down the policy, something the Legislature had already done.
However, she said there are still issues to be determined at trial over whether the Montana Environmental Policy Act — which prohibits agencies from considering the effects of greenhouse gases when issuing fossil fuel development permits — violates the state constitution's guarantee of a clean and healthful environment and causes damage to the youth plaintiffs.
“The main part of this case has now been thrown out, and what’s left of the case should also be dismissed," said Emily Flower, spokeswoman for the Department of Justice, which is defending Montana in the case.
“This entire case has been nothing more than a publicity stunt spearheaded by an out-of-state special interest group that is exploiting well-intentioned Montana kids ... to achieve its goal of shutting down responsible energy development in our state," Flower said in a statement.
The state of Montana filed a motion last week to dismiss the rest of the lawsuit, arguing that because the Legislature had amended the Montana Environmental Policy Act, the law that had been challenged no longer exists. The amendment clarified that state agencies can't take greenhouse gas emissions into account in issuing fossil fuel development permits unless the federal government starts requiring it.
However, at the end of the May 12 hearing on the state's motion to dismiss the energy policy portion of the lawsuit, Seeley told a state attorney that she did not find the MEPA amendments “to be nearly as substantive to the issues raised in this case as you do.”
Our Children's Trust, which represents the plaintiffs, did not immediately respond to an email Thursday seeking comment.
MEPA, originally passed in 1971 and amended several times since then, requires state agencies to balance the health of the environment against private property rights in permitting development. It also expanded the right for the public to participate in governmental decisions in an effort to prevent unintended consequences of development.
The 16 plaintiffs, ranging in age from 5 to 22, say they are feeling the consequences of climate change with smoke from worsening wildfires choking the air they breathe and drought drying rivers that sustain agriculture, fish, wildlife and recreation.
Based on the court record, there appears to be a reasonably close relationship between the state's permitting of oil, gas and coal activities and the plaintiff's alleged injuries, Seeley wrote. She added that the state has the authority to regulate emissions and climate impacts from fossil fuels by granting or denying permits.
"The state may not have the power to regulate out-of-state actors that burn Montana coal, but it could consider the effects of burning that coal before permitting a new coal mine,” her ruling states. “This court cannot force the state to conduct that analysis, but it can strike down a statute prohibiting it.”
Montana's right to a clean and healthful environment was included in the 1972 Constitution.
Seeley's ruling cited a 1999 Supreme Court order which noted that constitutional convention delegate Charles McNeil said: “Our intention was to permit no degradation from the present environment and affirmatively require enhancement of what we have now.”
The youth climate case was brought in 2020 by attorneys for the environmental group Our Children’s Trust, which since 2010 has filed climate lawsuits in every state on behalf of youth plaintiffs. Many cases — including a previous one in Montana — have been dismissed.
Advocates involved in the legal actions have said a victory in even one or two cases would give environmentalists leverage, leading to new regulations to rein in greenhouse gas emissions that scientists say are driving global temperatures higher.
Environmental law experts have described the legal ploy as novel but having little chance of succeeding.