In an Opinion published Wed., Dec. 18, 2024, the Montana Supreme Court held that the State of Montana had violated Montanans’ right to a clean and healthful environment by prohibiting consideration of greenhouse gas (GHG) emissions and climate change in the State’s environmental review procedures. The case, Held v. Montana, involved constitutional challenges brought by youth plaintiffs to two provisions of the Montana Environmental Policy Act (MEPA).
In 1971, MEPA was promulgated as a state counterpart to the National Environmental Policy Act (NEPA). MEPA imposes requirements for environmental review of state actions that may impact the human environment.[1] Like NEPA, MEPA’s requirements are procedural, not substantive. If a state action has the potential to impact the human environment (adversely, beneficially, or both), and if that action is neither categorically excluded nor exempt from MEPA review, then some form of environmental review is required before the action is taken. Typically, MEPA review takes the form an environmental assessment (EA) or an environmental impact statement (EIS).[2]
The Held Plaintiffs challenged two MEPA provisions that prevented state agencies from considering GHG emission in their MEPA review. The first provision, § 75-1-201(2)(a), also referred to as the “MEPA Limitation,” prohibited state agencies from considering GHG emissions and corresponding impacts to the climate in the state or beyond the state’s borders, unless required by a federal agency.[3] The second provision, § 75-1-201(6)(a)(ii), also referred to as the “MEPA Court Limitation,” restricted the authority of courts to address any GHG or climate impacts, or lack thereof, in a MEPA review.[4]
The Held Plaintiffs alleged that these two provisions violated their right to a clean and healthful environment guaranteed under the Montana Constitution. Specifically, Article II, Section 3 of the Montana Constitution provides “the right to a clean and healthful environment” and Article IX, Section 1 provides that “[t]he state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations” and “[t]he 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.”
On Aug. 14, 2023, Montana’s First Judicial District Court ruled in favor of Plaintiffs, holding that both MEPA provisions violate the Montana Constitution. The District Court found that global temperatures are rising at an unprecedented rate; this warming is the direct result of GHG emissions, primarily from the burning of fossil fuels; Montana is heating faster than the global average; and climate change harms children, including the youth Plaintiffs. The District Court concluded that by prohibiting state agencies from considering the impacts of GHG emissions, the State had failed in its constitutional mandate to maintain and improve the environment, to provide adequate remedies to prevent unreasonable depletion and degradation of natural resources, and to protect Plaintiffs’ right to a clean and healthful environment. The State of Montana appealed the district court’s holding with respect to the MEPA Limitation, but did not challenge the District Court’s findings of fact or holding regarding the MEPA Court Limitation.
On appeal, the Montana Supreme Court affirmed that Montana’s right to a clean and healthful environment and environmental life support system includes a “stable climate system,” found that Plaintiffs had established standing to challenge the constitutionality of the MEPA Limitation, and affirmed that the MEPA Limitation is unconstitutional.[5] The Court concluded that the Framers of the Montana Constitution had intended to provide “the strongest, all-encompassing environmental protections in the nation, both anticipatory and preventative, for present and future generations.”[6] The Court rejected the State’s argument that declaring the MEPA Limitation unconstitutional will not redress Plaintiffs’ injuries, stating: “It may be true that the MEPA Limitation is only a small contributor to climate change generally, and that declaring it unconstitutional will do little to reverse climate change. But our focus here . . . is not on redressing climate change, but on redressing [Plaintiffs’] constitutional injuries.”[7] Finally, the Court agreed that, although MEPA is procedural rather than substantive, those procedures enable “fully informed and considered decision making, thereby minimizing the risk of irreversible mistakes depriving Montanans of a clean and healthful environment.”[8]
Ultimately, the Montana Supreme Court held that the Constitution does not permit the Legislature to prohibit environmental reviews from evaluating GHG emissions. The Court did not address whether MEPA requires state agencies to evaluate GHG emissions, although that issue is presently before the Court in a separate case.[9] The effects of the Held decisions remain to be seen. On the one hand, the Court’s decision is very narrow in that it only addresses what the State cannot do. On the other hand, the Court’s findings of fact related to climate change and conclusions regarding the strength and scope of Montana’s Constitutional protections may invite further legal challenges of State actions.
NEPA provides insights into the scope of an agency’s GHG and climate change analysis. For example, courts have found that where producing fossil fuels for consumption is the project’s entire purpose, downstream use of fossil fuels, and the resulting GHG emissions, must be considered in the permitting agency’s NEPA analysis.[10] Courts have also found NEPA analyses inadequate where the agency failed to consider the proposed action’s contribution toward climate change.[11]
It is also unclear what the Held decision will mean for similar youth-lead citizen climate suits across the country. While citizens of other states will undoubtedly look to the Held decision as a guide, it is important to remember that the Held decision rests on the unique environmental protections provided by the Montana Constitution, which are, according to the Montana Supreme Court, the strongest in the nation.
As we enter the 2025 legislative session, Montana’s Legislature may choose to respond to the Held decision by adding new procedural requirements for evaluating GHG under MEPA review. The Legislature may also look to allocate more funding to DEQ to help support the additional workload involved with assessing GHG emissions. For now, clients with projects in Montana should consider whether their project directly or indirectly produces GHG emissions. Parsons Behle & Latimer will continue to monitor these issues and provide our clients with updates and guidance as new information becomes available.
Mathew T. Bain is member of the firm’s environmental, energy and natural resources practice group, where he leverages his background in environmental science and energy policy to help clients navigate complex regulatory obligations and other legal challenges. To discuss this or other issues with Mathew, call (406) 219-1468 or send an email to mbain@parsonsbehle.com.
[1] “State action” means an action undertaken by a state agency, including “a project, program or activity directly undertaken by the agency; a project or activity supported through contract, grant, subsidy, loan, or other form of funding assistance from the agency, either singly or in combination with 1 or more other state agencies; or a project or activity involving the issuance of a lease, permit, license, certificate, or other entitlement for use or permission to act by the agency, either singly or in combination with other state agencies.” ARM 17.4.603(1). State action does not include actions undertaken by local government entities or certain exempt and categorically excluded actions, such as maintenance of existing facilities or ministerial actions like issuing fishing licenses. ARM 17.4.607(5). The “human environment” encompasses the “biological, physical, social, economic, cultural, and aesthetic factors that interrelate to form the environment.” ARM 17.4.603(12).
[2] An EA is a quicker, more limited form of review and is the typical starting place for a proposed agency action. ARM 17.4.607. An EIS is a more extensive form of review that may take years to finalize and is typically required when the state agency determines that the proposed action will significantly affect the human environment in an adverse manner. ARM 17.4.608.
[3] The MEPA Limitation was first enacted by the 2011 Montana Legislature and later amended by the 2023 Legislature.
[4] The MEPA Court Limitation was enacted by the 2023 Legislature.
[5] 2024 MT 312, ¶ 73.
[6] Id. ¶ 30.
[7] Id. ¶ 51.
[8] Id. ¶ 60.
[9] Mont. Env’t Info. Ctr. v. Mont. Dep’t of Env’t Quality, No. DA 23-0225 (addressing whether evaluating GHG emissions under MEPA review is required for a natural gas electric generating facility).
[10] See, e.g., WildEarth Guardians v. Zinke, 368 F. Supp. 3d 41, 73 (D.D.C. 2019).
[11] See, e.g., 350 Montana v. Haaland, 50 F.4th 1254, 1269–70 (9th Cir. 2022).
