The Montana supreme court seems eager to cement its status as Worst Supreme Court.
In a ruling today in Held v. Montana, the court affirmed an August 2023 order by trial judge Kathy Seeley that (1) sixteen Montana children had standing to challenge the constitutionality of Montana’s state energy system, and that (2) a state law that bars agencies from considering greenhouse gas emissions and climate impacts for any project violates the children’s right to a clean and healthful environment under the state constitution. As I wrote back then, Seeley’s ruling that the plaintiffs satisfied the redressability test of standing*—that is, that she had the ability to grant relief that would redress plaintiffs’ alleged injuries—struck me as highly suspect:
According to Seeley, Montana accounts for total carbon-dioxide emissions of 166 million tons per year. Global emissions were over 37 billion tons in 2021. So Montana accounts for less than ½ of one percent of global carbon-dioxide emissions.
Further, it is anyone’s guess whether requiring Montana agencies to consider greenhouse gas emissions in issuing permits and approvals would result in any reduction in associated emissions. If Seeley herself has offered a guess, I missed it on my quick first read. So the likely effect of her order on Montana’s emissions might well be zero or infinitesimal.
Yet further, by Seeley’s own account, what matters far more than ongoing annual emissions is cumulative emissions over recent decades. So that makes it even less likely that her order would have any effect on the children’s alleged health injuries.
The five-justice majority provides no meaningful answer to this problem in its long opinion. Instead, we get this idiocy:
The State argues that it should not have to address its affirmative duty to a clean and healthful environment because even if Montana addresses its contribution to climate change, it will still be a problem if the rest of the world has not reduced its emissions. [EW: Gee, that’s not quite a fair summary of an argument against redressability.] This is akin to the old ad populum fallacy: “If everyone else jumped off a bridge, would you do it too?”
According to the majority, “Declaring the [challenged statute] unconstitutional will redress the constitutional injury caused by that statute,” but it can’t offer any explanation how leaving that statute in effect would have any impact on plaintiffs’ state constitutional right to a “clean and healthful environment.” To call its analysis circular is an insult to circles.
It might well be that previous inane rulings by the court require this inanity. That, I gather, is what Justice Dirk Sandefur concludes in his opinion concurring in the court’s holding (pp. 49-51):
[I]t is undisputed and indisputable that even the complete elimination of all fossil fuel related human activities in the State of Montana will not, and simply cannot, appreciably mitigate or reduce the only generalized injuries claimed by Plaintiffs, and which are common to all Montanans and inhabitants of planet Earth, as consequences of global warming….
[A]ccelerated global warming caused by fossil fuel burning and other human sources of greenhouse gases is a highly complex global problem, any solution or meaningful mitigation to or of which lies exclusively in the domain of federal and international public policy choices and cooperation, rather than in a flashy headline-grabbing rights-based legal case in Montana…
I generally agree with the State that the complete lack of particularized causation evidence in this case calls into serious question the threshold jurisprudential standing of the Plaintiffs to assert the broad-scope legal claims for relief asserted and litigated in the district court below…. However, I nonetheless agree with the Majority at bottom that Plaintiffs had minimally sufficient standing under our liberal jurisprudential standing requirements to assert the claims at issue….
In dissent (pp. 52-70), Justice Jim Rice concludes that the plaintiffs lack standing and faults the majority for “seemingly conflat[ing] injury with causation and redressability.”
* A reader thinks that I am assuming that state courts have to follow Article III standing rules. Not so. As I stated in my first post, “States are free to depart from the standing principles that apply in federal courts, and I claim no particular knowledge of Montana standing law.” What I faulted there, and am faulting here, is the shoddy reasoning.