Mont. officials tell youth they can’t consider climate change

Source: By Lesley Clark, E&E News • Posted: Tuesday, June 20, 2023

Emigrant Peak towers over the Paradise Valley in Montana.

Emigrant Peak towers over the Paradise Valley in Montana north of Yellowstone National Park on Nov. 21, 2016. Matthew Brown/AP Photo

A landmark climate change case against the state of Montana resumed Monday with state employees pushing back against a group of young people’s charges that the government is violating the state constitution by embracing fossil fuel projects.

The director of Montana’s Department of Environmental Quality and the agency’s air, energy and mining division administrator said the department is following state law, including adhering to a provision that bars them from considering the effects of climate change on projects.

In addition, DEQ Director Chris Dorrington argued that the Montana Environmental Policy Act (MEPA) that the youth are challenging does not give his agency regulatory authority to issue permits. The act, he said, is purely procedural and because of that the young plaintiffs are off-base in their challenge.

“MEPA doesn’t permit,” Dorrington said, adding that there are different state laws that “allow and guide the agency” to make decisions on whether to permit coal and oil and gas mining operations. He said MEPA is used to create environmental assessments for projects, but that it doesn’t have regulatory teeth.

“Those permitting statutes are what we follow in order to permit, and we have no right … not to follow the law,” Dorrington said, adding that his department “does not have the authority to not permit something that fully complies with the law.”

He noted that the plaintiffs had not challenged any specific permitting decisions.

The Montana climate case is the first of its kind to make it to trial in the United States and could serve as a bellwether for other legal challenges that seek to hold governments and industries accountable for their role in warming the planet.

The young plaintiffs testified last week that Montana’s embrace of fossil fuels is worsening climate change, endangering their health, and violating their right to a clean and healthy environment.

Anne Hedges, policy and legislative affairs director at the Montana Environmental Information Center, who has followed the Legislature for more than 30 years, testified on the youth’s behalf that Montana has never turned down a fossil fuel project.

But Sonja Nowakowski, the state’s air, energy and mining division administrator, took issue with that assertion.

“I do take some offense at an insinuation that the folks at DEQ are simply putting their stamp of approval on any application that rolls in the door,” she said. “These are very robust permitting processes. These people thrive on poking holes in applications and making sure they meet the letter of the law.”

She pointed to a coal mine application that was approved after several years and “11 rounds for deficiencies” — and only after 7,000 acres was excluded from mining.

Nowakowski said state law does not give her agency the authority to deny permits because of climate change or greenhouse gas emissions. But she described MEPA as a “two-way street” and said the agency can receive public comments about climate change during a project review.

“If the public asks you to look [at climate change], do you?” asked Barbara Chillcott, an attorney for the youth plaintiffs with the Western Environmental Law Center.

“We are prohibited from doing so,” Nowakowski said.

“That sounds kind of like a one-way street to me,” Chillcott replied.

After Nowakowski mentioned that Today’s Air — DEQ’s air quality monitoring website — is the most popular state government page, Chillcott asked whether it was because the site is useful in tracking wildfire smoke conditions.

Several of the young plaintiffs testified last week that they’ve been forced indoors for weeks at a time because of wildfire conditions in the state.

The young plaintiffs have charged that MEPA — since it was revised in 2011 — violates the state’s pledge of a “clean and healthful environment” because it prevents officials from considering greenhouse gas emissions or their effects on climate change.

Republican Gov. Greg Gianforte this spring signed a law passed by GOP supermajorities in the Montana House and Senate that expands the ban, barring state agencies from considering greenhouse gas emissions within the state, as well as climate effects that are “regional, national, or global in nature.”

After a week of hearing the young plaintiffs testify about their love of the state and how climate change is affecting their ability to spend time outside, attorneys for the state asked Dorrington and Nowakowski about their experiences.

Dorrington, a native of the state, said that he and his family enjoying hiking, camping and fishing and that he wants Montana “to be as wonderful as it was when I was growing up for my kids and, someday, my grandkids.”

Lawyers for the state last week declined to cross-examine the youth as they offered emotional testimony about witnessing the effects of climate change and extreme weather events on the state.

But Dorrington, who watched their testimony, said he admired their “grit and determination.”

And he said he’d invite them to apply for a state job: “I’d like to see her application some day,” he said of one of the plaintiffs who said she would like to go into state government.

Judith Curry won’t testify as expected

The state is expected to wrap up its case tomorrow, and both sides will present closing arguments.

Roger Sullivan, with Montana’s McGarvey Law, who is assisting Oregon-based Our Children’s Trust in the case, said Friday that the state would not call its most high-profile witness, Judith Curry, whose work has been championed by skeptics of anthropogenic climate change.

The attorney general’s office said Monday that “strategy changes as trials progress, and unlike the plaintiffs, the state is not interested in wasting taxpayer resources and the court’s time in presenting unnecessary testimony.”

Curry already has charged the state $30,000, according to a report last month. Climate economist Terry Anderson, who testified for the state Monday, testified that he is billing the state $500 an hour and has put in as many as 25 hours.

Each of the expert witnesses for the young people who testified last week said they were not being paid for their appearance.

Emily Flowers, a spokesperson for Attorney General Austin Knudsen (R), called the trial a “publicity stunt” and accused the plaintiffs of spending time testifying about a section of the lawsuit that already has been dismissed.

Judge Kathy Seeley of the 1st District Court in Montana, who is hearing the case, late last month struck the portion of the young people’s complaint that challenged Montana’s energy policy, which state lawmakers repealed earlier this spring.

“In reality, this case is a challenge to a discrete provision of a procedural state statute that has no impact on greenhouse gas emissions,” Flowers said.

Several of the plaintiffs’ witnesses last week refuted a paper that Curry had presented to the state.

Sullivan told reporters outside the courthouse that he didn’t know why the state pulled Curry but said he wasn’t surprised. The retired Georgia Institute of Technology climate scientist has frequently appeared as a witness for congressional Republicans who have sought to build a narrative of uncertainty in climate science.

“I think we put on a pretty compelling case that the climate crisis we are experiencing here in Montana is [human-]caused,” Sullivan said, adding that Curry’s report to the state was “quite at odds with the compelling scientific evidence.”

Curry, in her expert report, called the 32 million tons of carbon dioxide that Montana emits every year “minuscule” and “not meaningful.”

But Peter Erickson, a researcher at the Stockholm Environment Institute, testified for the plaintiffs that more than 100 countries release about that much in greenhouse gases — and that most of them have signed pledges to cut their emissions to meet climate targets.

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