Court case to decide if environmental permit law violates Montana residents’ rights

In Missoula, early wisps of smoke from distant wildfires signaled the seasonal onset of what is known elsewhere as summer, but in the West as fire season. This is when the air becomes so polluted by wildfires that it is officially listed as hazardous to breathe. 

The issue of Montanans’ right to clean air is currently before the state Supreme Court due to an appeal of a lower court decision based on a unique provision in Montana’s 1972 Constitution that guarantees residents a “clean and healthful environment.” 

The court case stems from Montana’s Legislature passing laws that forbid state agencies from considering the effects of greenhouse gas emissions when they evaluate applications for projects that require state environmental permits. In 2020, a group of 16 plaintiffs filed suit in Lewis and Clark County District Court challenging the legislation as violating their constitutional right to a clean environment. Last August, Judge Kathy Seeley agreed with those plaintiffs. However, Republican Gov. Greg Gianforte’s administration appealed that decision to the Montana Supreme Court.

The oral arguments lasted only a bit more than an hour, with two attorneys for the state, Dale Schowengerdt and Mark L. Stermitz, pursuing a series of legalistic and procedural arguments. The most frequent was that the case was being improperly heard because it was not based on a specific permit for a specific project. But in response to those arguments, the justices gave some clear indications the decision would not hinge on such legal technicalities. 

In his closing rebuttal, Schowengerdt began to reargue that this procedural issue was pivotal, but was sharply interrupted and contradicted by Chief Justice Mike McGrath, who said: “That’s not exactly right. The only question before the court is whether a state agency is precluded from looking at greenhouse gasses.”

This appeared to agree with the core of arguments offered by Roger M. Sullivan, who handled the case for the other side.

Sullivan said: “Montana is in the midst of a climate crisis right now. That climate crisis is being substantially contributed to by Montana’s greenhouse gasses that are permitted with a … process with the blinders on. The temperature goes up day by day. Surely if nothing is done, it will be much hotter when those young plaintiffs are my age.”

There is no disagreement that the plaintiffs and everyone else is being denied that constitutional guarantee because of the effects of global warming. The damage is clear and pronounced, just as Sullivan argued and demonstrated in the voluminous case record at the District Court level.

Even the state agrees.

“The state never did contest, and I think this is clear, that there are anthropogenic factors that contribute to this problem,” said Stermitz. “But that doesn’t mean that we feel that this global problem can be influenced in any way by a state district court in Montana. … We can eliminate every ounce of fossil fuel use in the state of Montana … and it will not impact the injuries the plaintiffs are alleging.”

The injuries to the plaintiffs stem from greenhouse gasses worldwide, Stermitz argued, and Montana’s contribution to the total global load is .0019%, a number that may be the result of some lawyerly spin and probably does not properly account for the state’s voluminous coal exports, but still is probably of the right order of magnitude, which is to say infinitesimal. 

Even if Montana were to cease all greenhouse gas emissions tomorrow, the injuries to the plaintiffs and everyone else would continue to accrue at the same pace unless all other states and all other nations were to do the same. Almost none of those places have a constitutional provision guaranteeing a clean and healthful environment.

What was presented to the seven elected justices in a courthouse in Helena was the fundamental and most critical dilemma of our time. They will settle the matter after some deliberation.