Youth Climate Ruling Looms Large in Montana Supreme Court Hearing About Laurel Gas Plant 

Justices to decide the fate of a gas plant NorthWestern Energy is building

By Amanda Eggert, Montana Free Press
Youth plaintiffs in the climate change lawsuit, Held vs. Montana, arrive at the Lewis and Clark County Courthouse on June 12, 2023 for the first day of hearings in the trial. Thom Bridge | Independent Record

Environmental groups challenging a gas plant under construction near Laurel asked the Montana Supreme Court during a hearing Wednesday to uphold a lower court’s decision to block the project. 

The lawsuit focuses on the adequacy of the environmental review the Montana Department of Environmental Quality applied to a permit for a 175-megawatt gas plant Northwestern Energy is building near the Yellowstone River. After a district court judge ruled in favor of the environmental litigants, finding that the state’s analysis of greenhouse gas emissions and lighting impacts was inadequate, NorthWestern Energy and DEQ appealed the decision to the Montana Supreme Court.

NorthWestern Energy has argued that the plant is necessary to meet the reliability needs of its customers as more intermittent resources such as solar and wind join the grid. NorthWestern attorney Shannon Heim also stressed that no state or federal regulations governing the greenhouse gases the plant would emit have been in force at any point since NorthWestern submitted its air quality permit to the DEQ in 2021. 

DEQ argued its environmental analysis was thorough and incorporated everything DEQ was legally required to consider. Montana law prevents the court from tossing out a permit solely on the grounds that it was subject to an inadequate environmental review, the agency also suggested.

An attorney for the Montana Environmental Information Center and Sierra Club countered that now-retired Yellowstone County District Court Judge Michael Moses was correct when he found that the state erred by failing to consider greenhouse gas emissions and other environmental impacts posed by the $250 million-plus plant. In his April 2023 ruling, Moses described the plant as one of NorthWestern Energy’s largest projects in Montana, one “that will dump nearly 770,000 tons of greenhouse gases per year into the air.” Moses added that “to most Montanans who clearly understand their fundamental constitutional right to a clean and healthful environment, this is a significant project.”

During the hearing Wednesday, DEQ steered clear of the greenhouse gas emissions-analysis question, instead focusing its argument on its review of plant noise and on conditions Montana lawmakers have put around the remedies available to project opponents. DEQ attorney Jeremiah Langston argued that MEIC is attempting to “move the goalposts” in regard to noise analysis and replace agency findings with court findings to “arrive at alternative conclusions.” 

Langston also cited a provision of the Montana Environmental Policy Act that seeks to constrain a judge’s ability to override a permit based on claims that focus on process rather than specific limits on considerations like acceptable concentrations of specific pollutants.

NorthWestern Energy attorney Shannon Heim expanded upon Langston’s argument, saying that emissions of greenhouse gases like carbon dioxide are not regulated by the Montana Clean Air Act and therefore not a consideration upon which DEQ can reject a permit.

“MEIC is using MEPA to expand the scope of the Clean Air Act,” Heim told the justices. “We believe that is contrary to the plain text of MEPA and this court’s precedent. We think that argument is inappropriate, and we ask the court to reject it.”

Arguing for MEIC and Sierra Club, Earthjustice attorney Jenny Harbine countered that the Montana Clean Air Act allows DEQ to limit emissions from “any source necessary to prevent, abate or control air pollution” and that the agency “absolutely has authority to regulate greenhouse gas emissions.”  

“The state recognizes the burning of fossil fuels spurs climate change and its harmful effects in Montana,” Harbine said. “We hardly need a better reminder of these harms than the record-low snowpack in the state this past winter and the correspondingly grim forecast for the upcoming fire season. … These are exactly the type of direct, secondary and cumulative impacts that DEQ is required to analyze under MEPA.”

The implications of the Held v. Montana youth climate lawsuit loomed large during the hearing, with both DEQ and MEIC suggesting that the conclusion of that case has a direct bearing on the lawsuit over the gas plant.

Last August, Lewis and Clark District Court Judge Kathy Seeley ruled in favor of Rikki Held and her 15 young co-plaintiffs, finding that the climate is part of the environment and therefore afforded protection under the Montana Constitution. The state appealed the lawsuit, which is before the Montana Supreme Court. Justices are widely expected to order oral arguments for the appeal, although no date has been set yet.

One of the laws that played a central role in the district court’s ruling in favor of the Held plaintiffs is House Bill 971, which bars state agencies from considering greenhouse gas emissions in their evaluations of projects that require a permit. In 2023, the Montana Legislature suspended its rules to pass the measure late in the session in direct response to Judge Moses’ ruling that revoked the permit for the Laurel gas plant.

Asked if she would prefer that the court resolve the constitutional climate claims central to the Held case before receiving a final opinion in this one, Harbine said both cases provide the court with an opportunity to consider climate harms — the Held case in a more broad sense and the gas plant case in “the very specific practical application of [HB 971] to a single large fossil fuel project.”

“I would just urge that whether the issue is resolved in this case or in Held — or in both, which we think is most appropriate — that it be done in a manner that prevents the constitutional infringement that would be caused when that plant begins operating and emitting greenhouse gas emissions before those emissions have been studied by DEQ.”

Harbine added that NorthWestern has indicated it could begin plant operation “as soon as the third quarter of this year.”

Harbine agreed with Heim in her assessment that the gas plant is not subject to the rules the U.S. Environmental Protection Agency adopted last month to limit carbon dioxide pollution from power plants, given its size and the technology incorporated into its design.

The justices gave no indication Wednesday when they might rule on the lawsuit.

This story originally appeared in the Montana Free Press, which can be found online at montanafreepress.org.