Weighing impacts of carbon emissions in permitting fossil-fuel power plants and other energy projects in Montana is now before the state Supreme Court after a lower court judge ruled this month that a revised state law is unconstitutional because it bars agencies from weighing facilities' greenhouse gas emissions and climate effects. 

The high court now will review Montana's appeal of State Judge Kathy Seeley's Aug. 14 decision supporting 16 young people who challenged the law. She said it has unlawfully contributed to “depletion and degradation” of the state’s environment, based on the Montana constitution requiring that “the state and each person shall maintain and improve a clean and healthful environment … for present and future generations.” 

Emily Flower, a spokeswoman for state Attorney General Austin Knudsen, confirmed the appeal to ENR. “This ruling is absurd, but not surprising from a judge who let the plaintiff’s attorneys put on a weeklong taxpayer-funded publicity stunt that was supposed to be a trial,” she said. Flower said earlier that advocacy group Our Children’s Trust, which backed the lawsuit by the plaintiffs aged 5 to 22, has a “goal of shutting down responsible energy development in our state.” The suit was filed in 2020 against Gov. Greg Gianforte (R) and four state agencies.

Gas Power Plant in Crosshairs

Currently before the state supreme court is the question of whether state regulators must consider greenhouse gas emissions and climate effects of a $283-million, 175-MW gas-fired power plant under construction on the Yellowstone River south of Billings. 

“As goes the kids’ climate case so goes this gas plant,” said Jenny Harbine, an EarthJustice attorney who represented the Sierra Club and Montana Environmental Information Center. Further court briefings are due Sept. 11. Court observers say the high court ruling could take six months to a year.

The power plant issue was already complicated. 

In 2011, the Montana legislature amended state law to limit the scope of environmental reviews of projects including mining and other energy projects by prohibiting agencies from considering “actual or potential impacts beyond Montana's borders.” But Judge Michael Moses ruled in April that the state Dept. of Environmental Quality erred in not considering effects of an estimated 23 million tons of greenhouse gases it would emit over several decades when issuing the construction permit, and he shut down work.

In response, the Montana legislature amended the state energy policy law in May by adopting a House bill that explicitly prohibits state agencies from considering “an evaluation of greenhouse gas emissions and corresponding impacts to the climate in the state or beyond the state's borders,” said Seeley's ruling.

She noted that construction had been allowed to continue under the revised law, without a review by the state environmental agency of “cumulative impacts of the permits it issues on GHG emissions or climate change.”

Seeley said four private coal power plants are authorized to generate 30% of Montana energy “without considering how the added GHG emissions will contribute to climate change or be consistent with the standards the [state] Constitution imposes” on Montana agencies “to protect people's rights.” 

The state environmental agency also continues to issue permits without considering greenhouse gas effects “for fossil fuel energy projects, including oil and gas pipelines and associated compressor stations, coal mines and coal facilities, oil and gas facilities, oil and gas leases, oil and gas drilling, petroleum refineries, industrial facilities that burn fossil fuels, and fossil fuel power plants,” she added.

If the Montana Energy Policy Act limitation is upheld as unconstitutional, state agencies likely would have to consider project GHG emissions and their impacts on climate change. Energy company NorthWestern Energy is developing the plant, which it previously said should begin operating in 2024. Whether the plant can obtain an operating license also is left to the state supreme court to decide. 

In its 2023 integrated resource plan, NorthWestern Energy noted the need for more capacity. It plans to purchase two units of the Colstrip coal plant totaling 222 MW and will evaluate need to solicit proposals for new generation, which it expected to issue by mid-2024. 

NorthWestern did not return an ENR request for comment.

Broader U.S. Impact?

“Montana is the only state in the nation that wants to acquire more coal,” Ann Hedges, director of policy and legislative affairs for the Montana Environmental Information Center, told ENR. It will take $500 million to make the Colstrip facility comply with new environmental rules, she said. 

But Hedges noted, “a lot more stuff is going to be built in Montana and it’s not going to be fossil fuels. It will be renewables to replace existing fossil fuels.” The state has the opportunity to engineer an entirely new energy system without climate impacts, she said. “We can replace fossil fuels for less cost than maintaining the old system.” 

The Northern Plains Resource Council said the 2023 NorthWestern Energy plan fails to live up to the clean energy future by doubling down on “increasingly expensive fossil fuels.” Hearings on the plan ended Aug. 17.  

Lawsuit proponents say Seeley’s ruling could spur similar legal strategies in other states. 

"This ruling is the first time that a court is directly interpreting the constitutional right to a clean and healthful environment as including the right to a safe climate,” said Maya Van Rossum, founder of the Green Amendment for the Generations movement. "This ruling informs how similar constitutional language in Pennsylvania and New York should be interpreted, and will also support the advancement of similar language in a growing number of states considering constitutional Green Amendments for addressing the climate crisis." 

She said 15 other states are considering such actions "to be explicit in the inclusion of climate rights."