Story originally published in DeSmog
Montana has repealed its 30-year-old energy policy – including a 2011 amendment that prioritized fossil-fuel development. The move comes as a June trial date approaches for a youth-led climate lawsuit against the state.
In the lawsuit, Held v. State of Montana, sixteen Montana children and teenagers say that by actively promoting a fossil-fuel based energy system that is dangerous to the climate, state officials are violating the “right to a clean and healthful environment” for present and future generations under the state Constitution. It is the first constitutional climate case to go to trial in the United States.
Montana first enacted a state energy policy in 1993. Since then, it has periodically revised and updated the statute. In 2011 the state legislature amended the policy to add provisions calling for increased fossil fuel development, along with references to developing other energy resources and technologies like wind, green hydrogen, and batteries.
Additionally, the 2011 legislature added a provision to the Montana Environmental Policy Act that prohibited environmental reviews of state-sponsored projects, including energy development, from considering impacts beyond state borders.
The youth-led lawsuit against the state challenges both provisions, claiming they explicitly promote fossil fuels while restricting the state from considering how coal, oil, or gas development contribute to the global climate crisis.
For now, the legislature has left standing the 2011 provision to the Montana Environmental Policy Act that limits environmental reviews of major actions, such as energy project permits, to considering impacts only within Montana’s borders. The youth lawsuit charges that this provision amounts to a “climate change exception.”
“The state relies on that provision to ignore the climate impacts of fossil fuel projects,” said Nate Bellinger, an attorney for the youth plaintiffs. “You have these two things working together – an explicit or implicit policy of approving fossil fuel projects while at the same time ignoring the climate impacts of those projects. So that’s the state system we’re challenging as unconstitutional.”
A Convenient Repeal
In early January, Montana Republican Rep. Steve Gunderson introduced legislation to repeal the state energy policy. The bill easily passed the Republican-controlled House and Senate, with no Democratic support. Republican Gov. Greg Gianforte signed it into law on March 16.
At a House committee hearing on the bill in January, Michael Freeman, a natural resources policy advisor to Gianforte, told lawmakers that the state would still have an energy policy after the repeal.
“The proposed legislation here does not conflict with the energy policy and in fact it helps clarify Montana’s energy policy,” Freeman told the Montana House Energy, Technology, and Federal Relations Committee. “From the governor’s perspective we do have an energy policy, it is an all of the above energy policy.”
Gunderson claimed that the repeal was intended to “[follow] the governor’s red tape reduction plan in that it removes a bloated bag of air that only takes up space” in state law. “It says nothing, it does nothing, and it has no teeth.”
Neither Freeman nor Gunderson responded to DeSmog’s requests for comment on the intent behind the bill.
Bellinger thinks the repeal of the state’s energy policy was a response to the youth climate case.
“The state has fought this lawsuit for three years now and tried to get it dismissed multiple times,” said Bellinger, the senior staff attorney with Our Children’s Trust, a non-profit law firm that has represented children in a number of climate cases around the country. “I think they’re concerned about the evidence that will come out,” he said, referring to Montana’s proactive support for fossil fuels.
In a recent court filing, an expert witness for the youth plaintiffs stated that she also suspected that the repeal was an attempt to take a swipe at the lawsuit.
“My immediate reaction was, this is being done to undermine Held v. State of Montana,” Anne Hedges, director of policy and legislative affairs at the nonprofit advocacy organization Montana Environmental Information Center, wrote in a declaration filed with the court in February.
“I believe that the reason Governor Gianforte is pushing the repeal of [the state’s energy policy] is to try and undermine this case so that Defendants can continue their conduct without any constitutional oversight. I do not believe that it will result in less fossil fuel permitting in Montana,” Hedges further stated in her declaration.
Pat Parenteau, emeritus professor of law and senior fellow for climate policy at the Vermont Law and Graduate School’s Environmental Law Center, told DeSmog he expects the Montana attorney general will argue at trial that the repeal “moots” or nullifies the case’s challenge to the state energy policy.
Montana’s Alliance with Fossil Fuels
The youth plaintiffs and their expert witnesses contend that Montana has a long history of permitting and prioritizing coal, oil and gas development. Montana is home to part of the Bakken oil and gas shale formation and contains the largest recoverable coal reserves in the U.S. Coal still accounts for almost half of the state’s electricity, and there are six coal mines that continue to operate in the state.
In her February filing, Hedges referenced her own expert report to the court in September 2022, in which she noted that no Montana state agency has ever denied an environmental permit to a fossil fuel company. Her report included evidence of what she described as the state’s “longstanding practice of collaborating with the fossil fuel industry to permit fossil fuel projects.”
Montana also has an established record of promoting and defending fossil fuels. In 2012, the state’s Department of Environmental Quality authorized the Montana portion of the Keystone XL crude oil pipeline. And in 2019, Montana along with North Dakota sent a petition to federal regulators seeking to invalidate a Washington law regulating volatile crude oil by rail.
The latest example is a lawsuit filed in February by Montana Attorney General Austin Knudsen against the city of Portland, Oregon for its ban on expansion of fossil fuel storage facilities as well as new fuel transport infrastructure, such as gas export terminals. Montana alleges that the ban has restricted the state’s ability to access international markets for its fossil fuel products. Several oil and gas groups, such as the Western Energy Alliance, have joined Montana in the suit.
Some state lawmakers have close ties to the fossil fuel industry. State Rep. Gary Parry, a current member of the House Natural Resources Committee, used to work in the coal industry, as did recently retired state senator Duane Ankney. Ryan Zinke, the U.S. representative for Montana’s 1st congressional district, facilitated oil and gas development on federal public lands while Secretary of the Interior during the Trump administration. Zinke was also on the board of oil pipeline company QS Energy from 2012 to 2015.
The current head of the Montana Petroleum Association, Alan Olson, served in the state legislature for 14 years as a representative and senator. In late January, Olson testified to the State Senate in support of the energy policy repeal.
First Constitutional Climate Trial in US History
The Held v. State of Montana case is scheduled for trial June 12 – 23 at the First Judicial District Court in Helena, Montana. The youth plaintiffs seek a court declaration that the state’s promotion of fossil fuels is unconstitutional.
The case was initially filed in March 2020 on behalf of sixteen Montana youths ranging in age from 2 to 18 years. Defendants include the state of Montana, then-Gov. Steve Bullock, and several agencies including the Montana Department of Environmental Quality, the Montana Department of Natural Resources and Conservation, the Montana Department of Transportation, and the Montana Public Service Commission.
In response to DeSmog’s request for comment, representatives of the Department of Environmental Quality, the Department of Natural Resources and Conservation, and the Public Service Commission said that they do not comment on pending or ongoing litigation. The governor’s office did not respond.
The case is the first climate-related constitutional challenge to government conduct to make it to trial in the U.S. State courts have so far dismissed other youth climate cases during pre-trial proceedings.
In January 2020, a federal youth climate lawsuit targeting the federal government, Juliana v. U.S., was ultimately dismissed before the trial could take place. That case is currently awaiting a decision on a revised complaint that could put it back on the path to trial.
The Montana case could be a game changer in terms of setting a legal precedent that government support of fossil fuels is unconstitutional. At a December webinar, Mat dos Santos, general counsel at Our Children’s Trust, said that the lawsuit “is not just about Montana. It’s really about the climate here in the United States and around the world.”
A victory in Montana would be a “watershed moment” leading to a “cascade of legal victories around the country,” dos Santos claimed, and would likely have global implications.
The upcoming trial may expose Montana’s preferential treatment of fossil fuels during a time of climate emergency, when the world’s top climate scientists warn that reigning in dangerous greenhouse gas emissions requires a “substantial reduction in overall fossil fuel use.”
“This is a case about protecting plaintiffs’ constitutional rights, and those rights don’t depend upon any elections or actions the legislature takes,” said attorney Bellinger. “That’s why it’s so important that this case is going to trial and it doesn’t really matter what the legislature does between now and then.”