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Montana Supreme Court Declares State Constitutional Right to ‘Stable Climate System’

Another progressive court policy decision at war with separation of powers.

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Montanan youths were the plaintiffs in a climate-change related complaint filed against the State of Montana, the governor, and multiple state agencies. One of the plaintiffs was a two-year-old toddler. The complaint alleged that portions of the revised Montana State Energy Policy Act (“MEPA”) violated their right under Montana’s Constitution (Article II, Section 3) to a “clean and healthful environment,” which the plaintiffs claimed includes a stable climate system. The revised MELA was duly passed by Montana’s legislature and signed by Montana’s Governor Greg Gianforte in 2023.

The plaintiffs challenged a revision to MELA that exempted from environmental impact reviews “greenhouse gas emissions and corresponding impacts to the climate in the state or beyond the state’s borders,” unless otherwise required by federal law. The plaintiffs claimed that their constitutional right to a “clean and healthful environment” includes a right to a stable climate system supportive of human life, which the greenhouse gas emissions exemption from environmental impact review allegedly violated. The plaintiffs prevailed at the lower court level and at Montana’s Supreme Court, which upheld the lower court’s decision on appeal.

Montana’s Supreme Court’s majority opinion embraced the notion that the Constitution is “a living thing designed to meet the needs of a progressive society…” Thus, it is no surprise that this progressive court exploited the Montana Constitution’s environmental provisions, which contain no reference to climate, to substitute its climate policy judgment for the judgment of the legislature where such public policy issues belong.

Even if fossil fuel related human activities in Montana were to be sharply curtailed, this would only minimally reduce the adverse effects of climate change within or outside of Montana, if at all. At the same time, fossil fuels have a continuing positive impact on human health and well-being by enabling the production and delivery of basic human necessities such as electricity, heating, food products, and gasoline.

All of this presents public policy issues that legislative and executive policy makers, not the courts, are responsible for addressing. Nevertheless, the Montana Supreme Court decided to stick its nose where it did not belong. It used a court filing alleging that a statutory limitation on the scope of environmental impact reviews infringes the plaintiffs’ constitutional right to a “clean and healthful environment” as a vehicle to advance the Court’s progressive, anti-fossil fuel agenda.

The case should have been thrown out on the grounds that the plaintiffs had no standing to bring their hypothetical complaint to court in the first place. Courts are only permitted to adjudicate cases brought by plaintiffs who can demonstrate that they themselves have been injured by concrete harm caused by the specific conduct they are complaining about. The plaintiffs in this case cannot prove that they themselves suffered such concrete harm. Their complaint rests solely on their mere assertion that the statute’s exemption of greenhouse gas emissions from environmental impact reviews fails to protect the citizens at large from environmental harm allegedly caused by greenhouse gases.

As the dissenting opinion explained, “the only government action raised here is an enactment of a statute that could operate to affect Plaintiffs if applied in an actual case.” (Emphasis in the original) The dissenting opinion added: “What is necessary for standing is a Montana government action that has directly impacted a member of the Montana population, which is absent here… Plaintiffs here present us with an abstract injury that is indistinguishable from that to the public as a whole and is not legally concrete to them personally.”

Lack of standing is not the only problem with the Montana Supreme Court’s fundamentally flawed ruling in the youths’ favor. This decision, which supplants the authority of the legislature to make laws signed by the governor that establish public policy, violates Article III of the Montana Constitution (Separation of Powers). In exercising its legislative authority, the Montana legislature – not the judiciary – must balance competing priorities for the collective benefit of all Montanans. That is precisely what the legislature did in enacting MEPA as revised.

The Montana Supreme Court referenced the following text of Montana’s Constitution dealing with the environment to support its conclusion that the MEPA exemption of greenhouse gas emissions from environmental impact reviews was unconstitutional:

Article II, Section 3 identifies “the right to a clean and healthful environment” as an “inalienable right.”

Article IX, Section 1 provides that:

(1) The state and each person shall maintain and improve a clean and

healthful environment in Montana for present and future generations.

(2) The legislature shall provide for the administration and enforcement of

this duty.

(3) The legislature shall provide adequate remedies for the protection of the

environmental life support system from degradation and provide adequate

remedies to prevent unreasonable depletion and degradation of natural

resources. [Emphasis added]

There is no specific mention in these environmental protection clauses of climate or of energy at all, including fossil fuels. But there is a specific reference to “gasoline” (a fossil fuel) in Article VIII, Section 6(1) of the Montana Constitution, which the Montana Supreme Court’s majority opinion blatantly ignored.

This clause states that “Revenue from gross vehicle weight fees and excise and license taxes (except general sales and use taxes) on gasoline, fuel, and other energy sources used to propel vehicles on public highways shall be used as authorized by the legislature” in connection with “public highways, streets, roads, and bridges.” [Emphasis added]

The revenues may also be used for enforcement of highway safety, driver education, tourist promotion, and administrative collection costs, as well as “for other purposes by a three-fifths vote of the members of each house of the legislature.”

The progressive Montana Supreme Court discussed extensively the allegedly serious environmental harms that are caused by human-caused emissions of greenhouse gases, which include emissions from gasoline-powered vehicles. In doing so, it ruled that the legislature had violated the plaintiffs’ constitutional rights under Articles II and IX by merely enacting the statutory exemption of greenhouse gas emissions from environmental impact reviews.

But this Court failed to mention, much less analyze, the provisions of Article VIII, Section 6(1), which specifically authorize the legislature to use revenue from the sale of gasoline – a greenhouse gas – for the public’s benefit.

Just as Montana’s legislature has the constitutional responsibility to provide “adequate remedies for the protection of the environmental life support system from degradation,” the legislature is also constitutionally responsible for levying taxes “by general laws for public purposes.” (Article VIII, Section 1) In this connection, the legislature is authorized by the Montana Constitution to raise and use revenue from the sale of gasoline and other fuels for publicly beneficial purposes.

It is up to the legislative branch to enact laws, signed by the governor, that it determines will best implement these two constitutional directives – protecting the environment and using tax revenues, including from gasoline taxes, to support public highways.

Moreover, the same clause in the Montana Constitution that enshrines the right to a “clean and healthful environment” also enshrines the right to “pursuing life’s basic necessities.” For the foreseeable future, fossil fuels are the sine qua non for successfully “pursuing life’s basic necessities,” such as electricity, heating, and food products as well as gasoline. And this requires latitude for the exploration, drilling, extraction, refinement, and delivery of sufficient fossil fuels to meet the demand. In these circumstances, it was reasonable for Montana’s legislature to reduce the burden and delay caused by cumbersome environmental impact reviews before such activities can move forward.

As the dissenting opinion cogently explained:

While the Montana Constitution contains environmental provisions that must be enforced, there are other, sometimes competing, constitutional provisions to also be enforced…and the policies enacted to balance these constitutional interests must ultimately be formulated by the executive and legislative branches, not the judicial branch.

In sum, the Montana legislature passed the revised Montana State Energy Policy Act, which included the limitation on the scope of environmental impact reviews. The Montana Supreme Court overstepped its judicial authority by striking down this statutory provision in a case where the plaintiffs failed to demonstrate any concrete harm to themselves that was caused merely by the provision’s language itself.

This is yet another example of an activist progressive court waging war on public policy decisions of the legislative and executive branches that do not align with progressive, left-wing ideology.

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