Climate case plaintiffs tell Montana Supreme Court to deny state’s ask for pause on decision

Attorneys for the youth plaintiffs in the Held v. Montana climate change case told the Montana Supreme Court it should deny the Department of Justice’s request to pause the district court’s decision in part because they say the state attorneys did not follow proper legal procedure in filing the request.

The attorneys for the 16 plaintiffs also argue that the case record already shows Montana to be in violation of its state constitution by not accounting for greenhouse gas emissions and climate impacts when issuing permits under the Montana Environmental Policy Act.

Seeley’s order also found that plaintiffs’ injuries caused by those violations “will be exacerbated if defendants continue to ignore climate change and GHG emissions in MEPA reviews.”

Attorneys for Gov. Greg Gianforte, the Department of Environmental Quality, Department of Natural Resources and Conservation, and Department of Transportation – the defendants in the case, along with the State of Montana – in October asked Seeley to order a stay, or pause, of her decision while the defendants appealed the case to the Montana Supreme Court.

Seeley denied the request on Nov. 21, telling them she could not do so because her judgment was already finalized, and the case was already with the Supreme Court. She also said the state had still presented no evidence that analyzing greenhouse gas emissions and climate impacts would cause them irreparable harm.

“The uncontested evidence at trial established that a transition to renewable energy will help Montana’s environment, improve the health of its citizens (especially Montana’s children), and save Montana energy consumers money,” Seeley wrote in the November order denying the defendants’ request. “… Defendants had the opportunity to dispute this evidence at trial, but they did not.”

But on Dec. 1, the state filed a similar request with the state Supreme Court, asking the justices to pause Seeley’s August decision while they appeal the case. They argued that it is too difficult for the state to suddenly perform analyses for emissions and climate impacts, that the case raises “serious and unprecedented legal questions,” and said the court should clarify whether the state needs to perform those analyses while the case is on appeal.

“No one benefits from ‘justice on the fly’ that disregards the complex issues this fundamental change to MEPA analysis raises,” the defendants argued in their request.

The defendants said Seeley’s order “effectively grants plaintiffs the very ‘remedial climate recovery plan’ that the district court found it lacked power to grant” and violated the separation of powers “by imposing an extra-statutory regulatory scheme to take its place.”

But in Friday’s response to the defendants’ latest request for a pause, the plaintiffs’ attorneys not only outline the reasons they believe the defendants are wrong, they tell the Supreme Court that the state’s request was not filed in accordance with Montana court rules of appellate procedure.

The plaintiffs’ attorneys said the state’s filing did not include an affidavit to support it which met the 10-page limit, and that a reply motion the defendants filed in the district court case a day after Seeley had already denied the stay was improperly included in an appendix filed with the most recent request to the Supreme Court.

“Defendants provide no explanation for their failure to comply with Rule 22 and, therefore, their motion should be denied summarily,” plaintiffs’ attorneys argued in the response.

Further, they say the defendants’ argument – that Seeley’s order with respect to the provision of the state constitution that provides for “a clean and healthful environment” presents new and unsettled legal questions which should be grounds for a stay – do not meet the standard for the Supreme Court to pause Seeley’s order.

“The District Court’s holding that a statute precluding analysis of pollutants known the harm human health and the environment violates the right to a clean and healthful environment and other constitutional rights is far from novel,” the plaintiffs’ attorneys wrote in their response Friday.

They note that Seeley’s findings included that the state did not dispute testimony during the trial that the plaintiffs were currently being injured by the state’s failure to analyze greenhouse gas emissions and climate impacts.

Also during trial, one of the state’s witness confirmed the state did previously analyze greenhouse gas emissions, and Seeley noted in her decision that state agencies would be capable of considering them if the MEPA limitation was declared unconstitutional.

“Defendants completely ignore the District Court’s factual findings and conclusions of law, based on undisputed trial testimony, detailing the current and ongoing infringement of plaintiffs’ constitutional rights, which establishes irreparable harm to plaintiffs,” the plaintiffs’ attorneys told the Supreme Court in Friday’s filing.

They said that the state has only provided speculative potential harms about facing costly litigation over permits and has shown nothing to prove Seeley abused her discretion with her ruling – another factor in obtaining a stay on a prior ruling during an appeal.

The plaintiffs’ attorneys cite Seeley’s August order again in finalizing their response, saying that allowing energy projects to move forward without a MEPA review that accounts for greenhouse gas emissions and climate impacts risks “irreversible mistakes depriving Montanans of a clean and healthful environment.”

“Defendants’ assertion that the public will be deprived of its right to notice and comment is wholly unsupported. Defendants have not presented any evidence they will adopt, amend, or repeal any rules during the pendency of their appeal that would require notice and comment pursuant to § 2-4-302, MCA,” the plaintiffs’ attorneys wrote. “On the contrary, the evidence shows it is overwhelmingly in the public’s interest for defendants to stop issuing permits without considering GHG emissions and their corresponding impacts to the climate.”

The Supreme Court had not set a hearing date on the request as of Monday afternoon. Four days after filing the request for a pause on Seeley’s decision with the court, the defendants’ attorneys also asked for an extension of time to file their full appeal.

That was granted, and the appeal is due by Feb. 13, which will be six months after Seeley issued her order on Aug. 14 and four months after the defendants filed their notice of appeal.

Blair Miller is a Helena-based reporter for the Daily Montanan, a nonprofit newsroom. To read the article as originally published, click here.