Montana Gov. Greg Gianforte’s administration says it is impractical for the state to immediately start addressing greenhouse gas emissions and climate impacts to the environment following a judge’s ruling this summer that the state was violating Montanans’ constitutional rights by not preserving a “clean and healthful” environment.
Attorneys representing Gianforte and several state agencies in the Held vs. Montana case on Friday asked the state Supreme Court for a stay in the case in order to put the district court’s decision on hold from being enforced pending the full appeal.
It’s the second time in recent months that Gianforte, the Department of Environmental Quality, Department of Natural Resources and Conservation and Department of Transportation have sought a pause on District Court Judge Kathy Seeley’s August decision.
The agencies and governor had also asked for a stay and clarification from Seeley after filing a notice of appeal with the state Supreme Court in October. But Seeley denied that request on Nov. 21, telling the defendants she had no jurisdiction in the case since the appeal was already with the Supreme Court.
“There is no evidence before the court that analyzing (greenhouse gas) emissions and climate change impacts in environmental reviews, which defendants argue could potentially lead to not issuing permits for fossil fuel activities, will cause irreparable harm to any defendants,” Seeley wrote in the Nov. 21 order denying the pause. “The uncontested evidence at trial established that a transition to renewable energy will help Montana’s environment, improve the health of its citizens (especially Montana’s children), and save Montana energy consumers money. … Defendants had the opportunity to dispute this evidence at trial, but they did not.”
But on Friday, the attorneys for the governor and state agencies filed a similar ask of the Montana Supreme Court, to put Seeley’s August decision on hold while the state appeals it.
The motion to pause the order says attorneys representing the defendants – most of them with the Montana Department of Justice – are asking the Supreme Court to put Seeley’s decision on hold to preserve the status quo because the the state believes the youth are trying to force the state to account for greenhouse gas emissions and climate impacts when reviewing energy permits under the Montana Environmental Policy Act.
According to the latest filing and the previous request, the state believes having to suddenly perform those analyses is too difficult and that it should be clarified whether the state must perform them while the defendants appeal the case.
“On top of the practical complications, ordering such a sweeping overhaul of the state’s regulatory system is beyond the courts’ authority. What is more, evaluating (greenhouse gas) emissions and climate impacts in MEPA analysis will not alleviate plaintiffs’ alleged harms because MEPA is a procedural statute,” the latest filing says. “MEPA does not authorize appellants to deny or modify permit applications based on a MEPA review.”
The defendants say their appeal raises “serious and unprecedented legal questions,” another reason they argue Seeley’s decision should be put on hold for the time being.
The defendants’ attorneys say Seeley’s order broke new ground in jurisprudence.
They also claim her order exceeded her authority and “effectively grants plaintiffs the very ‘remedial climate recovery plan’ that the district court found it lacked power to grant,” as the filing says.
When Seeley’s denied the pause late last month, she found the governor and agencies had “identified no errors” with her August conclusions, but they now argue that determination was wrong. They continue to maintain that Seeley exceeded her authority “by effectively requiring appellants to analyze GHG [greenhouse gas] emission and climate impacts in MEPA to redress plaintiffs’ constitutional injuries.”
“As appellants pointed out, that is wrong because MEPA is only an information-gathering and disclosing statute, not a substantive permitting statute,” the defendants said in their latest motion. “No state agency can ‘withhold, deny, or impose conditions on any permit or other authority to act’ based on MEPA.”
The governor and agencies also argue that any order enjoining a duly-enacted statute “always irreparably harms the state,” though Seeley had found in November they had not demonstrated they would be irreparably harmed.
“Their alleged harms are raised for the first time in their stay brief. Defendants have not met their burden to establish they will suffer any irreparable harms absent a stay pending appeal,” Seeley wrote in the Nov. 21 order.
But attorneys for the governor and agencies in their filing with the Supreme Court say Seeley’s decision was made in error.
They argue it also violates the separation of powers “by imposing an extra-statutory regulatory scheme to take its place” they say would cost them considerable resources in order to develop and implement methods to analyze greenhouse gas emissions and climate impacts – though the state has analyzed greenhouse gas emissions in the past, as was noted during the trial.
“Appellants cannot implement methods for performing that analysis overnight; it must be thoughtful, evaluating when the analysis might apply, proper scoping, the extent of the analysis, and geographic limits,” attorneys for the agencies and Gianforte wrote in their motion. “Otherwise, appellants would be subject to potential litigation risk by parties who claim it is acting arbitrarily and capriciously by using a slipshod analysis cobbled together to avoid contempt or widespread litigation against state agencies’ MEPA review and permitting decisions.”
The motion argues the plaintiffs in the Held case are trying to require the state account for greenhouse gas emissions and climate impacts due in part to comments the leading legal group, Our Children’s Trust, submitted in response to the Department of Environmental Quality’s permit determinations for two projects this fall. The comments said Seeley’s order “is in full force and effect and is binding on DEQ.”
“As DEQ staff admitted during their depositions, the agency must comply with Montana’s Constitution and court orders interpreting the Constitution,” the letters to DEQ said. “Defying a court order constitutes contempt of court and is sanctionable conduct.”
But the governor and agencies said in their Supreme Court motion Friday that the plaintiffs would not be injured should the court grant a stay on Seeley’s decision, and told the court it has held a similar stance in the past when it comes to appeals in environmental and permitting cases.
“Climate change is a complex issue, and developing sound methods for analyzing it will take time. And even if DEQ could implement those methods overnight, MEPA does not let DEQ deny permits for ‘fossil fuel projects,’ or any projects,” the attorneys wrote in Friday’s motion. “Permitting will continue under the requirements of substantive permitting statutes, even if MEPA reviews include GHG emissions and climate change impacts analysis.”
The attorneys for Gianforte and the agencies also argue that immediately implementing greenhouse gas emissions and climate analyses in every MEPA review “would deprive the public of its right to notice and comment on a significant change.”
“No one benefits from ‘justice on the fly’ that disregards the complex issues this fundamental change to MEPA analysis raises,” they argue.
In response to the filing, Nate Bellinger, senior staff attorney at Our Children’s Trust, said the state was again trying to avoid complying with Seeley’s August order. He noted Seeley had already rejected the similar request in district court and found the youth plaintiffs in the case were already experiencing injury because of the constitutional violations under the MEPA limitation.
“Montana should be working to fix these problems, not asking for permission to continue to violate the constitutional rights of Montana’s youth,” Bellinger said in the statement.
The plaintiffs in the Held case have also filed an amicus brief in a case involving environmental groups that are challenging the permits for a natural gas plan being built near Laurel, arguing their district court victory should invalidate those permits until the state finishes its appeal, as the Associated Press reported last week.
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