Stacks from the Colstrip coal-fired power plant east of Billings, Montana. | Corbis via Getty Images
A lawsuit in the state of Montana could set a legal precedent on climate action.
Do citizens have a right to a healthy environment? In Montana they do. The state constitution reads, “The state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations.” And a group of young people are using that language to sue the state over its energy policies.
In one of the country’s first climate change lawsuits, a group of 16 young people in Montana alleges that the state has violated their constitutional right to “a clean and healthful environment.” The plaintiffs are arguing that the state government’s ongoing support of the fossil fuel industry in Montana is disproportionately harming them. Depending on the ruling, this could set an example for similar suits across the country.
Montana is a major coal exporter and has the largest coal reserves in the United States. The coal industry has also been a boon for the local economy: Jobs in the coal industry pay about 30 percent more than the median income in the state. The outcome of this case could impact coal’s place in the local economy.
At the same time, preserving the environment makes economic sense for Montana, too. Outdoor recreation is a $7.1 billion dollar industry there. Camping, hiking, fly fishing, and other outdoor activities draw tourists to the state. Critics of the state’s current energy policy point toward green energy like wind turbines as a possible economic alternative to fossil fuels.
This case could also set a precedent, creating a legal roadmap for similar challenges at a crucial time. According to the Intergovernmental Panel on Climate Change, the UN’s goal to limit warming to 1.5 degrees Celsius will be out of reach unless drastic changes are made in the next two years.
One of the plaintiffs, Grace Gibson-Snyder, remembers when she first noticed the impact of climate change in her hometown. It was during one of her summer soccer practices in August, when wildfire smoke blew into the Missoula Valley, where she lives. “The smoke was so dense that the kids on the team with asthma could not play at all,” she said. “And then for the rest of us, it was uncomfortable. It feels like it’s scratching your throat and your lungs.”
Gibson-Snyder, who is 19, says she’s frustrated with the way that young people are discussed as the solution to the climate crisis. She’s also frustrated with what she views as government inaction. “I wish lawmakers understood that this is the only way I see a future where I want to be there. And the youth don’t have a choice, we will be there one way or another.”
The Montana state attorney general’s office has referred to this case as a publicity stunt exploiting well-intentioned kids, and gave The Weeds the following statement when asked for comment, which reads in part:
Following the legislative session, there are no existing laws or policies for the district court to rule on. A show trial on laws that do not exist, as the district court seems intent on holding, would be a colossal waste of taxpayer resources. This same lawsuit has been thrown out of federal court and courts in a dozen other states — and it should be dismissed here in Montana as well.
No matter the outcome, the trial in Helena, Montana likely won’t be the end of this legal battle, according to Amanda Eggert, environmental reporter for Montana Free Press. “I think there’s no question that there will be an appeal to the Montana Supreme Court, no matter which way it goes,” she said. “So I think we’re looking at several years before it’s finally decided.”
Below is an excerpt of my conversation with Eggert, edited for length and clarity. You can listen to The Weeds on Apple Podcasts, Spotify, Stitcher, or wherever you get podcasts.
Jonquilyn Hill
Can you walk us through the timeline of events regarding this case?
Amanda Eggert
So in March of 2020, 16 youth plaintiffs filed the lawsuit in a district court in Montana. Shortly thereafter, the state moved to dismiss the complaint, arguing that the plaintiffs didn’t have standing to bring the lawsuit. And the judge in this case, Kathy Seeley, denied the motion to dismiss and essentially set the lawsuit on a path for trial.
But something interesting that happened recently is that our legislature convened in January for a 90-day session, and they passed a couple of bills that have pretty strong implications for the lawsuit.
Jonquilyn Hill
How so?
Amanda Eggert
Well, central to plaintiffs’ claims was the state’s energy policy, and that was a legislatively established piece of law that’s about 30 years old, establishing a broad energy vision for the state. And the legislature actually repealed the entirety of the policy this spring. So shortly after that was passed by the legislature and signed by the governor, the state moved to dismiss the lawsuit arguing that since this piece of law is no longer on the books, the lawsuit has no grounds to proceed. And they asked the judge to dismiss the case based on the repeal of that policy. And she did decide to narrow the scope of the case based on the repeal of that policy. But there’s another law at play here too, and that is House Bill 971, and that explicitly prohibits the state from considering greenhouse gas emissions or climate impacts in its environmental review process.
So Judge Seeley actually referenced the passage of House Bill 971 in her order that she issued on May 23, 2023, and she said that the courts may be unable to direct the state to consider greenhouse gas impacts, but it can certainly strike down a statute preventing them from doing something like that. And she’s allowed the case to proceed.
Jonquilyn Hill
Were people surprised that Judge Seeley took this case on in the first place?
Amanda Eggert
Yeah, I think it is pretty surprising. It still surprises me to this day. It’ll be the first time that a climate change case of this nature goes to trial. There will be a lot of people watching it.
Judges are often reluctant to rule on constitutional claims such as a quote-unquote “clean and healthful environment” because there’s some subjectivity to that. Oftentimes, they would prefer to rule on statute alone. You know, what legislators pass in the capitol every two years in Montana, because that can be a little bit more fleshed-out, versus a broad, overarching environmental protection for current and future generations. So, I was surprised, and it’s really going to be interesting to see how it all plays out.
Jonquilyn Hill
Do we know why the judge denied the state’s motion to dismiss?
Amanda Eggert
I think she recognized that the plaintiffs have standing and that standing is a legal concept, essentially establishing that the plaintiffs have demonstrable harms and that there are remedial actions that can be taken to correct those harms.
And she also recognized that the state’s energy policies do have a direct bearing on those harms.
Jonquilyn Hill
Often, when we talk about climate change, we talk about it on a more global scale, but this seems really individual and really small scale, these young people are saying this is harming me in this particular way.
Amanda Eggert
I’ve spoken with one of the lead attorneys for the plaintiffs, and I know that they took great care to establish a whole record. Their initial complaint is over 100 pages, which is huge by legal standards.
But in that they’re trying to establish very specific individual harms. So there are plaintiffs that talk about being evacuated due to forest fires or plaintiffs who talk about grieving the loss of glaciers in Glacier National Park. There are plaintiffs who talk about concerns related to wildlife.
And in addition to establishing those very specific harms, the plaintiffs also went to great lengths to demonstrate that climate change is happening, that climate change is happening in Montana, and that the state has been extremely permissive in its permitting of fossil fuel extraction, which is the largest source of greenhouse gas emissions in Montana.
Jonquilyn Hill
What exactly is the state arguing against the plaintiffs?
Amanda Eggert
The state is making all kinds of claims. A lot of them are central to whether or not the plaintiffs have standing. That’s kind of a legal test, establishing that there’s a harm that’s occurring, that there’s some sort of judicial remedy that could correct those harms, and that the actors involved in this situation, the state, are implicated in furthering those harms.
So much of the state’s claims thus far deal with whether or not climate change is occurring, whether the plaintiffs have experienced the harms that they allege in their filings, and whether there is any legal foundation to change state energy permitting practices.
Jonquilyn Hill
Underlying this legal battle is another tension in Montana, between preserving the outdoor economy and the state’s role as an energy exporter. Can you talk about the impact of climate change in Montana? How is the land itself changing and how is it impacting citizens and the state’s economy?
Amanda Eggert
I think one of the clearest assessments we have of climate change impacts in Montana specifically came out in 2017. It’s called the Montana Climate Assessment.
Our governor at the time, a Democrat, Steve Bullock, asked the state to put together this assessment, and it found that between 1950 and 2015, the state had warmed on an average between two and three degrees. And then it goes into more specific impacts — we don’t have as much snowpack as we used to. And that’s a big deal for our rivers.
Montana is a headwater state located along the continental divide. Some of our rivers go all the way down to the Columbia, others go all the way down to the Mississippi. But with the loss of snowpack, we have less snow and therefore water to sustain our rivers into the late summer and fall. That’s a big deal for our outdoor economy. Fly fishing is a great big deal in this state. It’s also a big deal for agriculture, — lots of farmers are dependent on rivers for irrigation of their crops.
Loss of snowpack is also a big deal for our ski industry and our outdoor recreation economy generally, which is about $7.1 billion. And then there are other impacts, like more extreme wildfires and a longer wildfire season, which has health impacts because there’s more smoke that everyone is sucking in through much of the summer and fall.
Jonquilyn Hill
Montana has one of the largest outdoor recreation economies in the country. And I think that’s part of what makes Montana an interesting stage for this lawsuit, because it also has the largest coal reserves in the country. Can you talk about those opposite forces of industry?
Amanda Eggert
Yeah. And that tension is very top of mind for me, having just come out of the legislative session where lawmakers passed some significant reforms to coal permitting and litigation challenging coal permits.
We have a Republican in the governor’s seat. We have a supermajority in the legislature of Republicans and they are a little more old school in terms of their support for what I would call a quote-unquote “traditional industry” such as logging and mining and agriculture. And that definitely is reflected in the laws that are passed at the Capitol.
Jonquilyn Hill
I want to talk about the potential impact on Montana if the judge rules in the plaintiffs’ favor. What could this potentially change for Montana?
Amanda Eggert
That’s a really good question. And the way it’s been explained to me by one of the attorneys working for the plaintiffs is that it’s kind of like marriage equality, where initially they’re just asking the courts to recognize that the current law is out of accordance with the Constitution.
And so it would very broadly establish that these harms are occurring, that they are not supposed to be occurring according to Montana’s constitution, and to establish this overarching principle that we’re going to kind of change the way that we do things.
Generally speaking, that would look like asking the state to bring its energy permitting practices in alignment with the constitution and the protections for a clean and healthful environment.
What that would look like in practice would be established through many iterations of policy, I would think.
Jonquilyn Hill
Can you talk a bit about the potential jobs and economic impact if these changes are made?
Amanda Eggert
One of the practices that’s central to plaintiffs’ claims involves coal mining and coal combustion. And coal mining jobs are high-paying jobs relative to the median income in Montana. I think they’re about 30 percent higher than Montana’s median income. In addition to coal mining and power plants, there are communities that are entirely dependent upon coal. They’ve been described as a one-horse town kind of a situation where if you don’t have the power plant and you don’t have the mine, then all of a sudden you have tumbling property values, you don’t have a tax base to support your school at the same level, maybe some of your local retailers go under, that kind of a thing.
Jonquilyn Hill
Is it realistic to think that if the plaintiffs win in this case, Montana will make the switch to green energy?
Amanda Eggert
A lot of people are really curious about that. And I think there are a couple things at play. One is that even clean energy boosters will recognize that there are not as many wind energy jobs as there are for mining coal and burning it.
And the other thing that they recognize is that they don’t tend to pay as well as the coal jobs. So that’s one component of it. You would potentially be looking at fewer jobs, maybe, though that’s probably debatable, that would pay a little less.
The other piece of this conversation that I think is relevant is there’s this kind of cultural divide in Montana regarding fossil fuel jobs and clean energy jobs. So I think it might be a little bit difficult for someone working at a coal-fired power plant or a boilermaker to sign on to maintain wind turbines, for example.
Jonquilyn Hill
As this trial starts, what will you be watching for?
Amanda Eggert
So the state is making the argument that climate change is not a result of human activity, that it’s representative of natural variability. So I will be very interested to see how it makes those claims. They have an expert who will be testifying to that effect.
And I’ll also be interested in getting this both broad and deep look at the permitting process for energy projects. I’m kind of an energy nerd these days, and I’ll really be interested to see how the plaintiffs lay out the specific policies that have favored the fossil fuel industry.
Jonquilyn Hill
Do we have a sense of the timeline? Do we know about how long this trial will take and when we can expect a ruling from the judge?
Amanda Eggert
The trial is scheduled to take place over a two-week period, so it’ll wrap up by the end of June, and oh, man, I don’t have a crystal ball for when a ruling will come. I have talked to people who think that a ruling will come quickly.
Evidently, one of the lead attorneys for the plaintiffs is confident that Judge Seeley will rule in the plaintiffs’ favor.
I think there’s no question that there will be an appeal to the Montana Supreme Court, no matter which way it goes. So I think we’re looking at several years before it’s finally decided.