Lawsuit

August 15, 2023

(Thom Bridge/Independent Record)

At the back of the front section of today’s newspaper I found an article on a lawsuit working through the courts in Montana.  Sixteen Montana youths between the ages of 5 and 22 sued the state, the governor, the Montana Department of Environmental Quality, the state’s public commission office, and other state departments in 2020 over Montana’s fossil fuel-based energy system.  The lawsuit cited scientific evidence that burning fossil fuels is contributing to global warming that is already causing them harm.  The judge’s ruling said a provision in Montana’s Environmental Policy Act violated the right to a clean environment, guaranteed under Montana’s state constitution, by promoting the continued use of fossil fuels.  The court said a provision in the law preventing the state from considering the climate impacts of energy projects is unconstitutional.  The decision is based on the provision in the Montana Constitution that guarantees citizens a “clean and healthful” environment.  At least three other states (Pennsylvania, New York, and Hawaii) have similar language in their constitutions, and all have similar lawsuits.

When I looked online, I found the carbon dioxide emissions which are at the heart of the lawsuit are associated with energy and industrial production and come from a range of fuels.  The contribution of each source has changed significantly over time, and still shows large differences by region.  Early industrialization used coal-fired power and emerged in Europe and North America during the 1700’s.  By the late 1800’s there is a growth in emissions from oil and gas production.  By the late 1900’s there are emissions from flaring and cement production.  Solid and liquid fuel now dominate industry, although emissions from production of gas are significant.  Cement and flaring remain comparably small even at a global level.  Total emissions from different sources are largely reflected by the population of a given country.  The distribution of emissions across different fuel sources is also dependent on energy production and mix in each country.  In the US or the UK, oil followed by gas are the largest contributors.  In China and India coal is much more dominant, and in Russia the largest emissions come from gas.

In ruling on the lawsuit, the judge did not lay out specific steps for the state to take, but the order opens the door for state officials to consider climate impacts in future policy decisions, on energy and mining projects, or efficiency and emissions standards.  The state opposed the lawsuit largely on procedural grounds, arguing the challenge was overly broad and that Montana’s specific contribution to global greenhouse-gas emissions could not be identified and therefore was not the state’s responsibility to regulate.  Montana’s Republican-majority legislature has supported fossil fuel infrastructure in the resource-heavy region and passed a new law this session explicitly prohibiting analysis of greenhouse gases and climate effects in environmental-impact reviews by state agencies.  That law was blocked by Monday’s ruling.  The Montana attorney general’s office said it planned to appeal, saying that Monday’s ruling was “absurd” and that the trial was a “weeklong taxpayer-funded publicity stunt.”

Thoughts:  In a 1999 landmark decision (MEIC v. Montana DEQ) the Montana Supreme Court ruled unanimously that Montanans’ constitutional right to a clean and healthful environment (Article IX, Section 1) is “a fundamental right and one that is intended to be preventative in nature.”  The lawsuit was filed because the Montana Department of Environmental Quality had allowed the Seven-Up Pete Joint Venture to pump millions of gallons of arsenic-tainted water into the Landers Fork and Blackfoot Rivers without treatment.  The Supreme Court’s ruling said blanket exemptions are unconstitutional unless the State can show a compelling State interest in granting them.  Caring for the environment ultimately comes back to caring for humans as well as the planet.  We are not at odds with the planet and need to stop acting like we are.  Act for all.  Change is coming and it starts with you.