HELENA, Mont. (Legal Newsline) - A “passionate skier” called “Badge,” named after a popular recreation area and who “feels a part of him is lost” after a devastating wildfire at Badger Two-Medicine. A young woman who believes the deteriorating climate has hurt her ability to play competitive soccer. Another young woman who questions whether having children “is an option in a world devastated by climate change.”
These are among the youthful plaintiffs a Montana judge has decided have suffered injuries severe enough to strike down a state law prohibiting regulators from considering the effects of greenhouse gas emissions on climate change when permitting coal mines, pipelines and oil wells within the state.
In an Aug. 15 decision filled with dire warnings about the future of the planet, Lewis and Clark County Judge Kathy Seely ruled a section of the Montana Environmental Protection Act violates Article IX of the state constitution guaranteeing residents the right to “a clean and healthful environment.”
The decision hinges upon several conclusions of law the State is likely to appeal to the Montana Supreme Court, most importantly whether the 16 plaintiffs had standing to sue in the first place. In earlier rulings, Judge Seely agreed parts of their lawsuit raised impermissible political questions, including claims the court should impose a plan to inventory and reduce statewide greenhouse gas emissions.
The judge also rejected the idea the plaintiffs suffered damages directly because of Montana’s refusal to consider climate effects in its permitting decisions.
Instead, she ruled the plaintiffs, who were 18 or younger when they sued in 2020, were disproportionately harmed by the effects of climate change on the Montana environment. Most of those damages were psychological, the judge ruled, including anxiety, despair and depression.
“Plaintiffs’ injuries will grow increasingly severe and irreversible without science-based actions to address climate change,” the judge wrote. Their claims are “concrete, particularized, and distinguishable from the public generally,” the judge also ruled, perhaps seeking to head off arguments the plaintiffs were challenging a general political policy they disliked.
“Badge,” for example, loves skiing but “climate change is reducing Badge’s ability to participate in this important recreational activity,” the judge ruled. Lander Busse complained higher pollen counts driven by global warming were aggravating his asthma. (Busse’s asthma apparently didn’t stop him from celebrating the courtroom win by taking a two-day fishing trip in the wilderness with his buddies.)
Other plaintiffs complained about fear and despair over the state of the environment. Olivia Vesovich of Missoula “experiences bouts of depression when she thinks about the dire projections of the future” and questions whether she’ll have children. Claire Vlases, a ski instructor at Big Sky Resort, said reduced snowfall is reducing her work days and ability to hike and practice cross-country running.
Montana legislators passed the MEPA limitation on considering out-of-state climate effects in environmental permits in 2011. After a Montana judge said MEPA reviews must consider in-state climate effects, the legislature modified the law to prohibit in-state or out-of-state impacts unless the U.S. Congress modifies the Clean Air Act to classify CO2 as a regulated pollutant.
Judge Seely ruled the limitation prevents the state “from making fully informed decisions” about the “scope and scale of the impacts to the environment and Montana’s children,” the judge ruled. Because Montana’s ecosystem is linked to the rest of the world, prohibiting consideration of climate impacts “is not scientifically supported.”
The judge made numerous other scientific and economic findings in her decision, citing plaintiff experts.
“Until atmospheric GHG concentrations are reduced, extreme weather events and other climactic events such as droughts and heatwaves will occur more frequently and in greater magnitude, and plaintiffs will be unable to lead clean and healthy lives in Montana,” she wrote. “Every ton of fossil fuel emissions contributes to global warming and impacts the climate and thus increases the exposure of youth plaintiffs to harms now and additional harms in the future.”
She also advocated for shifting the state’s utility grid to wind, water and solar power, which she said would cut residents’ utility bills by 70%.
“Transitioning to WWS will keep Montana’s lights on while saving money, lives, and cleaning up the air and environment,” she wrote.