A Montana judge has rejected one plank of a youth-led lawsuit that challenges the state’s climate record but denied the state’s effort to torpedo what next month will become the first climate lawsuit in the U.S. to go to trial.

Judge Kathy Seeley of the 1st District Court, who is scheduled to hear the case in her Helena courtroom, sided with the state last week by denying plaintiffs’ claim that Montana’s recently revoked State Energy Policy “perpetuates a fossil-fuel based energy system that causes and contributes to the climate crisis.”

But Seeley rejected the state’s bid to dismiss the case entirely, likely clearing the way for a landmark trial that could determine whether the state’s environmental laws contribute to climate change and have a disproportionate effect on young people.

The two-week trial in Held v. Montana is scheduled to open June 12.

Montana lawmakers in March repealed the State Energy Policy in what the plaintiffs’ lawyers described as a thinly veiled attempt to undermine the case. Lawyers for the youth had argued that even without the policy, they could still challenge the state’s promotion of fossil fuels.

Seeley, however, noted that her only cause of action would have been to declare the provision unconstitutional — and it’s already been removed.

She noted the state was correct when it cited an unrelated 2012 Montana Supreme Court decision to argue that a “broad injunction and declaration not specifically directed at any particular statute would lead to confusion and further litigation.”

The energy policy was first enacted in 1993, but the 16 young people claimed in their lawsuit that it was revised in 2011 to “explicitly promote fossil fuels.”

Lawmakers recently repealed the entire policy, arguing that it would eliminate outdated language from the state’s laws.

“The main part of this case has now been thrown out, and what’s left of the case should also be dismissed,” said Emily Flower, a spokesperson for Montana Attorney General Austin Knudsen. “This entire case has been nothing more than a publicity stunt spearheaded by an out-of-state special interest group. We believe this political theater will come to an end soon.”

Mat dos Santos, general counsel and managing attorney at Our Children’s Trust, the Oregon-based public interest law firm that is representing the young people, called the ruling disappointing but said it would have “no bearing on plaintiffs’ constitutional claims, nor the evidence they will present at trial.”

He noted Seeley in the same ruling “soundly rejected” the state’s effort to block the lawsuit.

“It is clear from this ruling that the court understands the importance of giving these young people their day in court,” he said.

Coal mines and carbon

Legal and environmental advocates are hopeful the case could set legal precedent and help prod governments to speed up action on climate change. Similar youth-focused lawsuits have faced setbacks, including Juliana v. United States, which was filed by Our Children’s Trust.

Both Republican and Democratic administrations have opposed the Juliana lawsuit, which calls on federal officials to phase out fossil fuels, and the 9th U.S. Circuit Court of Appeals in 2020 dismissed the young challengers’ claims — finding that the case raised questions for the “political branches” of government, rather than the courts.

Seeley did leave intact the claim in the lawsuit that challenges a provision barring state agencies from considering climate change under the Montana Environmental Policy Act. The young challengers say it violates the state constitution, which lists the right to a “clean and healthful environment” as the first of one of a half-dozen inalienable rights.

The state has sought to dismiss the claim, noting that the Legislature also revised the Montana Environmental Policy Act. The change bars the state from considering greenhouse gas emissions or their effect on climate change when it comes to conducting environmental reviews on proposed projects.

But Seeley in her ruling said there appears to be a “reasonably close causal relationship” between the state’s permitting of fossil fuel projects, climate change and the young people’s alleged injuries.

The young people in the lawsuit have cited mental and physical harm from climate change and plan to have a psychiatrist and climate activist testify at trial about the psychological and mental effects of a warming globe.

“Whether climate change and the MEPA limitation impact youths disproportionately is a material fact to be proven at trial,” the judge wrote.

She also asserted that the state could “alleviate the environmental effects of climate change” if it was allowed to consider emissions and climate change during environmental reviews.

“The state may not have the power to regulate out-of-state actors that burn Montana coal, but it could consider the effects of burning that coal before permitting a new coal mine,” she wrote. “This court cannot force the state to conduct that analysis, but it can strike down a statute prohibiting it.”

The youth plan to put experts on the stand during the trial, and Seeley noted that they have already provided evidence to show that Montana’s contributions to greenhouse gas emissions can be measured and that they are not “de minimis.”

She added that declaring the climate exclusion to the Montana Environmental Policy Act unconstitutional would not require it to consider climate change in every project.

“There are no prudential concerns that prevent this court from adjudging whether the MEPA limitation is constitutional,” she said.

Seeley noted that the state has argued that a ruling against it would “give rise to seemingly endless litigation against all manner of public and private entities and individuals for any given emission of GHGs — from electrical generation to driving a car or using wood-burning stoves.”

But she said there is no evidence, “besides the state’s speculative and conclusory statements, that such a judgment would result in an opening of the floodgates.”

And she wrote that the state points out that delegates to the 1972 constitutional convention that wrote the environmental protection plank “never explicitly discussed a ‘stable climate system’” during deliberations.

But, she said, the Montana Supreme Court “has repeatedly found that the framers intended the state constitution contain ‘the strongest environmental protection provision found in any state constitution.’“

She called it not absurd “to find that a stable climate system is included in the ‘clean and healthful environment’ and ‘environmental life-support system’ contemplated by the framers.”

Hawaii climate case

In another case by Our Children’s Trust, young people suing Hawaii’s transportation agency over its contribution to climate change will go before a judge on Friday in an effort to keep a 2023 trial date.

Navahine F. v. Hawaiʻi Department of Transportation was scheduled for trial in September, but Hawaii 1st Circuit Judge Jeffrey Crabtree agreed with the state Thursday that it may need more time to prepare, attorneys for the youth said.

Crabtree did not set a new date, but said he would meet with the attorneys Friday to determine whether he can schedule the trial before his state-mandated retirement in February 2024. Circuit court judges in the state, who are appointed to 10-year terms by the governor, must retire by age 70.

The state had asked for an eight- to 12-month delay, arguing that it was a “complex, important case.” The youth had argued there is no time to waste.

“A trial date in 2023 is imperative to stop the state’s ongoing constitutional violations,” said Andrea Rodgers, co-counsel for the youth plaintiffs and senior litigation attorney at Our Children’s Trust. “As children, these youth plaintiffs cannot afford to wait any longer for delays caused by their own government and they deserve prompt redress to ensure their constitutional rights are protected.”

The attorneys said Crabtree explained during the hearing that due to delays in the case he wanted to give the state enough time to prepare its defense “to ensure both sides have a fair trial.”

Crabtree has directed the parties to try to mediate a settlement and the state argued in court briefs that it would be “most useful” to engage in mediation “without the urgency of other deadlines impeding the effort.”

Attorneys for the youth said they were committed to participating in mediation but believed that continuing with trial preparation was necessary “to ensure settlement discussions are meaningful and conducted in an efficient manner.”

The young people in Hawaii contend that the state transportation agency operates a system that emits high levels of greenhouse gases, in violation of their constitutional rights. They argue that although Hawaii is recognized as a climate leader, the agency has missed every mark on reducing emissions since 2008.