MONTANA: An Introduction to Natural Resources & Environment
A Changing Regulatory Climate in Montana.
The Montana Supreme Court’s decision in Held v. Montana, 2024 MT 312, 560 P.3d 1235, found that prohibiting greenhouse gas analyses in environmental reviews violated Montanans’ constitutional right to a clean and healthful environment. While the Legislature has taken steps to implement the decision, formal administrative guidance remains pending. Consequently, climate change and greenhouse gas emissions are sure to play a leading role in Montana’s evolving regulatory landscape for years to come.
On December 18, 2024, the Montana Supreme Court issued its opinion in Held. The plaintiffs were a group of sixteen youths. They claimed the State’s actions were contributing to the harm they experienced from climate change. The plaintiffs sought a declaration that certain provisions of the Montana Environmental Policy Act (MEPA) were unconstitutional; specifically, that a provision of MEPA prohibiting evaluation of a project’s greenhouse gas emissions, except in certain circumstances, violated their right to a clean and healthful environment under the Montana Constitution. See Mont. Code Ann. § 75-1-201(2)(a). Further, the plaintiffs sought a declaration that their right to “a clean and healthful environment” under the Montana Constitution includes the right to a stable climate system that sustains human life.
The Montana Constitution is unique in granting citizens of the state “the right to a clean and healthful environment.” Mont. Con. Article II, Section 3. The Montana Supreme Court has previously addressed this provision and has determined “it is one of the strongest environmental protection provisions found in any state constitution” and it is “both anticipatory and preventative.” Held, ¶ 23 citing Park Cnty. Env’t Council v. Mont. Dep’t of Env’t Quality 2020 MT 303, ¶ 61. In Held, the Court analyzed whether the right to a “clean and healthful environment” includes a stable climate system that sustains human life. Examining the testimony of the framers of the 1972 Montana Constitution and the legislative record from the passage of MEPA, the Court found that climate change was negatively affecting Montana’s environment and that the right to a clean and healthful environment includes the right to a stable climate system.
Ultimately, the Court held the State’s prohibition on greenhouse gas analyses was unconstitutional and that the right to “a clean and healthful environment” includes the right to a stable climate system. In reaching this holding, the Court recognized the following facts:
- the world is experiencing rising temperatures;
- the warming is the direct result of greenhouse gas emissions, primarily from carbon dioxide released by the burning of fossil fuels;
- the emissions increase the frequency and severity of extreme weather events; and
- Montana is projected to be ten degrees warmer by 2100.
These effects of climate change formed the basis of the plaintiffs’ constitutional challenge.
Importantly, the State did not contest the fact that greenhouse gases were responsible for adverse effects on the environment but challenged whether such attenuated harms were sufficient to give the plaintiffs standing. Relying upon prior decisions, the Court held the plaintiffs had standing to bring suit when their constitutional rights were violated. Despite the State’s argument that climate change affects every Montana citizen, the Court held the plaintiffs need not show unique individual harm to have standing. The State further argued against standing on the grounds that MEPA is a procedural statute, and that declaring the MEPA prohibition unconstitutional would not address the plaintiffs’ injury. The Court disagreed, and the State conceded, stating that even if the MEPA prohibition was not the sole cause of the plaintiffs’ injury, it is at least partially responsible for the plaintiffs’ injury. The Court also noted that even if addressing climate change was a global issue and any action of reducing Montana’s emissions would have a negligible effect on global climate change, as the State argued, the plaintiffs’ harm was a violation of their constitutional right to a clean and healthful environment. Since the plaintiffs’ constitutional rights were violated by the MEPA prohibition on analyzing greenhouse gas, and the declaration of the MEPA prohibition as unconstitutional would address this violation, the plaintiffs had standing to bring suit.
The Court determined the MEPA prohibition violated the plaintiffs’ constitutional right to a clean and healthful environment and the State did not have a compelling interest for not considering greenhouse gas emissions as part of its environmental review process. Despite the State’s argument about the global nature of climate change, the Court ruled this did not alleviate the State from its constitutional responsibility to analyze the environmental impacts from projects within Montana. The Court reasoned the MEPA prohibition prevents state agencies from making an informed decision on the effects of a proposed project. Of note, the Court did not adopt the District’s Court conclusion that “every ton” of carbon dioxide emitted from a proposed permit rendered the permit unconstitutional, but instead focused on the constitutionality of the MEPA prohibition. The Court declared the MEPA prohibition as unconstitutional and enjoined the State from enforcing the statute.
Post-Held, Montana’s state agencies must now consider greenhouse gas emissions and the impacts of climate change as part of their MEPA review and permitting decisions. Climate change is a global issue, but state agencies do not have guidance as to how they must weigh greenhouse gas emissions in environmental reviews. The Legislature considered several bills aimed at amending MEPA to incorporate the Held decision. Senate Bill 221, which was signed by the Governor on May 1st, revises MEPA to allow for greenhouse gas assessments, but only for state actions involving fossil fuel activities. The bill clarifies that these assessments are intended to satisfy the informational requirements of MEPA, not regulate greenhouse gas emissions. Further, it also directs the Montana Department of Environmental Quality (DEQ) to develop guidance to help state agencies determine when a greenhouse gas assessment may be necessary. Through its rulemaking authority, DEQ will decide how best to complete greenhouse gas assessment in light of Held. The inherent uncertainty in this process means more litigation is almost certainly on the horizon.