The state of Montana concluded its argument on Monday in the youth climate trial as attorneys rested their case. The prosecution called upon the Department of Environmental Quality director, a division director, and an expert witness who presented data on greenhouse gas emissions. However, the plaintiffs' attorneys disputed the accuracy of this data.
In addition to addressing procedural matters concerning admissible evidence for Judge Kathy Seeley's evaluation, both the state's attorneys and the 16 Montana youth who filed the lawsuit are expected to deliver their closing statements on Tuesday in the Held v. Montana trial. The plaintiffs' legal team has expressed the possibility of recalling a witness or two to counter the testimony provided by the state's witnesses, and they plan to submit a witness deposition.
Last week, the attorneys representing the 16 youth plaintiffs presented various witnesses, including the plaintiffs themselves, as well as experts in climate change, renewable energy, energy policy in Montana, and the physical and mental health of children. On the other hand, the state's attorneys called only three witnesses on Monday before resting their case.
The plaintiffs argue that the state's actions violate their constitutional rights to a clean and healthy environment for both current and future generations. Specifically, they claim that the state's legislation prohibits the consideration of greenhouse gas emissions and climate impacts when conducting environmental reviews for energy and mining projects, as well as when issuing permits.
They are asking Seeley to deem what they call the “limitation” to the Montana Environmental Policy Act – the part of the law that says the state cannot consider greenhouse gas emissions and climate impacts – to be unconstitutional.
Most of the questions posed to DEQ Director Chris Dorrington and Sonja Nowakowski, the director of the Air, Energy and Mining Division within DEQ, by attorneys for the state surrounded the state’s ongoing claim that MEPA is procedural and that underlying permitting statutes – the Clean Air Act of Montana and the Strip and Underground Mine Siting Act among them – are what speak to the provisions of the state constitution that guarantee a right to a clean and healthful environment.
Dorrington has been the director of DEQ since the Gianforte administration took office in January 2021. He previously held the job Nowakowski currently holds, starting as division administrator in June 2016, he said, after 10 prior years with the Department of Transportation.
He told the court that it is the underlying permits that guide the agency and provide requirements when it comes to issuing permits – and that the changes to the MEPA limitation the legislature made in May when it passed, and Gov. Greg Gianforte signed, House Bill 971 – leave the department with no choice but to follow the law.
He referenced a statute that explains the purpose of MEPA, specifically highlighting a section stating that agencies are not allowed to withhold, deny, or impose conditions on permits. He also pointed out that the statute grants DEQ authority as outlined in existing laws, supporting his argument.
The state maintains its position, which it has consistently asserted throughout the case and in various hearings and filings over the past two months. They argue that since the MEPA "limitation" was changed by lawmakers, the plaintiffs' only recourse would be to challenge specific permitting decisions, although there have been few such decisions since the new law came into effect.
The plaintiffs initially filed the lawsuit in March 2020 when the previous version of the MEPA limitation, introduced in 2011, was still in effect. Additionally, a state energy policy, which was repealed by lawmakers before the trial, resulted in the dismissal of claims related to the energy policy in the case.
Both Dorrington and Nowakowski admitted during the trial that they had not previously heard the MEPA law referred to as the "MEPA limitation." However, Nowakowski acknowledged the existence of a limitation on MEPA. Dorrington also indicated that he was not extensively familiar with the work of the Intergovernmental Panel on Climate Change, whose climate change reports have formed the basis of testimony from most of the scientific experts presented by the plaintiffs.
During her testimony, Nowakowski, who had previously worked as a research analyst on energy and environmental policy in the legislature's environmental policy office and as the research director for the Office of Research and Policy for 15 years, affirmed that DEQ strictly adheres to the law when granting permits. She stated that due to the current MEPA limitation, which prohibits the state from considering greenhouse gas and climate impacts, the department's actions are constrained.
Plaintiffs' witnesses from the previous week presented evidence demonstrating that the department used to assess greenhouse gas impacts for projects in the 2000s. Consequently, several proposals were rejected due to public opposition, as testified by Anne Hedges, the policy and legislative affairs director of the Montana Environmental Information Center.
Nowakowski disclosed that she had drafted the 2011 MEPA limitation for a senator, which stated that emissions outside of Montana should not be taken into account when evaluating permit applications. This provision was amended by lawmakers in response to a ruling by a Yellowstone County judge, which stated that the state had neglected to examine greenhouse gas emission projections for a NorthWestern Energy power plant in Laurel.
She referenced data from the U.S. Environmental Protection Agency, indicating a decline in gross fossil fuel emissions in Montana during 2020. However, the plaintiffs' lawyers noted that this reduction occurred primarily due to the COVID-19 pandemic's impact, which led to a nationwide decrease in emissions as a result of reduced transportation activities, among other factors.
Nowakowski expressed her belief that if the state were to lose the case, it could potentially lead to changes in environmental reviews involving MEPA. Nevertheless, she emphasized that even in such a scenario, the agency would still be prohibited from considering greenhouse gas or climate impacts due to the recently amended law.
She stated, "It's procedural. It doesn't provide us with the authority to condition or modify, or approve or deny, a permit. That lies solely within the individual (permitting) acts." However, she also acknowledged that these permitting statutes generally lack provisions addressing greenhouse gas and climate impacts, which suggests that even if the limitation were struck down, analyzing such factors would likely remain prohibited under the law.
During the cross-examination by plaintiffs' attorney Barbara Chillcott, Nowakowski was asked if greenhouse gas emissions cause harm to the environmental ecosystem and degrade Montana's natural resources. On both occasions, she responded by stating that she is "not a scientist." However, she did acknowledge that she believes the combustion of fossil fuels is the primary contributor to greenhouse gas emissions. Nevertheless, she asserted that DEQ does not have the authority to consider this factor when evaluating permits.
She stated in court, "I believe there is no authority to regulate climate change or greenhouse gases in those statutes."
Chillcott concluded her questioning of Nowakowski by quoting from her deposition, asking if it was true that she had stated that her career relied on her opinion that fossil fuels contribute to global warming and climate change.Nowakowski confirmed, "That's what I said in my deposition."
Before the state presented its final witness in the trial, Assistant Attorney General Michael Russell requested that Governor Gianforte, the Department of Transportation, the Department of Natural Resources and Conservation, and the Public Service Commission be removed from the court order as defendants. Russell argued that the plaintiffs had not provided evidence against them.
However, Judge Seeley denied their request, along with a similar one, stating that significant progress had been made in the case, and she intended to consider all the evidence presented with all defendants involved.
She remarked, "We're far enough along here; we might as well finish up."
The state's last witness called to testify was Terry Anderson, a fellow at Stanford University's Hoover Institution and a professor at Montana State University. Anderson identifies himself as a proponent of "free market environmentalism" and labels himself a "climate economist."
The plaintiffs' attorneys promptly objected to Anderson's testimony, arguing that he is an economist and not a climate scientist, as he presented data on Montana's greenhouse gas emissions.
Judge Seeley allowed the state to continue questioning Anderson because he was referencing data allegedly obtained from the Energy Information Administration's website.
Anderson claimed that global greenhouse gas emissions were 34.8 gigatons in 2020 and 36.8 gigatons in 2022, based on the EIA data. He further stated that Montana's emissions, specifically in the area where carbon is consumed, were 0.0262 gigatons in 2020 and 0.036 gigatons in 2022, which he represented as a fraction of global emissions.
However, the testimony quickly took a turn.
Plaintiffs' attorney Phil Gregory pointed out that the numbers Anderson originally submitted in a report last October contained incorrect data, which Anderson acknowledged had been "corrected" prior to his deposition in the case.
Gregory highlighted that Anderson had changed the metric between the two submissions, from million metric tons of CO2 to gigatons of CO2, which made the numbers appear smaller in comparison to global emissions. Additionally, Gregory mentioned that Anderson had altered one of the data points for 2022, which Anderson confirmed.
Anderson revealed that he was being paid $500 per hour by the state for his role as an expert witness in the case. When asked about the number of billable hours he had accumulated thus far, he admitted that he did not know but estimated it to be at least 25 hours, resulting in a minimum bill of $12,500.
During the questioning by Gregory, Judge Seeley inquired about the purpose of the line of questioning and whether Gregory intended to prove that Anderson's numbers were incorrect.
Gregory confidently responded, "Yes, Your Honor. Absolutely 100% wrong."
Gregory presented slides comparing the data submitted by Anderson in the case. While the initial set referred to Montana's carbon dioxide emissions, the updated submission indicated that the data was from the Mountain West region. However, the numbers on both sets of slides were the same.
Anderson explained to Seeley that he had projected Montana's emissions based on estimates from the Mountain region and calculated the expected decline rate. He admitted that although he did not testify about this specific calculation, he had performed it.
Gregory then confronted Anderson about his assertion that Montana's emissions were decreasing, making Anderson acknowledge that the 2022 data showed higher emissions than the 2020 data.
With little further discussion in the courtroom, the parties, along with Seeley, agreed on a schedule for the next day. This schedule involved finalizing evidence submissions, reading one more plaintiff witness deposition, and concluding the trial with 10 minutes of closing arguments for each side.
Following the hearing, attorneys from Our Children's Trust, Julia Olson and Mat dos Santos, expressed satisfaction with how the trial unfolded. Olson stated that she did not expect a ruling from Seeley for at least a month, but both attorneys expressed optimism about the anticipated outcome.
"Yeah, I think we're expecting to win this one," dos Santos said confidently.The state of Montana concluded its argument on Monday in the youth climate trial as attorneys rested their case. The prosecution called upon the Department of Environmental Quality director, a division director, and an expert witness who presented data on greenhouse gas emissions. However, the plaintiffs' attorneys disputed the accuracy of this data.
In addition to addressing procedural matters concerning admissible evidence for Judge Kathy Seeley's evaluation, both the state's attorneys and the 16 Montana youth who filed the lawsuit are expected to deliver their closing statements on Tuesday in the Held v. Montana trial. The plaintiffs' legal team has expressed the possibility of recalling a witness or two to counter the testimony provided by the state's witnesses, and they plan to submit a witness deposition.
Last week, the attorneys representing the 16 youth plaintiffs presented various witnesses, including the plaintiffs themselves, as well as experts in climate change, renewable energy, energy policy in Montana, and the physical and mental health of children. On the other hand, the state's attorneys called only three witnesses on Monday before resting their case.
The plaintiffs argue that the state's actions violate their constitutional rights to a clean and healthy environment for both current and future generations. Specifically, they claim that the state's legislation prohibits the consideration of greenhouse gas emissions and climate impacts when conducting environmental reviews for energy and mining projects, as well as when issuing permits.
They are asking Seeley to deem what they call the “limitation” to the Montana Environmental Policy Act – the part of the law that says the state cannot consider greenhouse gas emissions and climate impacts – to be unconstitutional.
Most of the questions posed to DEQ Director Chris Dorrington and Sonja Nowakowski, the director of the Air, Energy and Mining Division within DEQ, by attorneys for the state surrounded the state’s ongoing claim that MEPA is procedural and that underlying permitting statutes – the Clean Air Act of Montana and the Strip and Underground Mine Siting Act among them – are what speak to the provisions of the state constitution that guarantee a right to a clean and healthful environment.
Dorrington has been the director of DEQ since the Gianforte administration took office in January 2021. He previously held the job Nowakowski currently holds, starting as division administrator in June 2016, he said, after 10 prior years with the Department of Transportation.
He told the court that it is the underlying permits that guide the agency and provide requirements when it comes to issuing permits – and that the changes to the MEPA limitation the legislature made in May when it passed, and Gov. Greg Gianforte signed, House Bill 971 – leave the department with no choice but to follow the law.
He referenced a statute that explains the purpose of MEPA, specifically highlighting a section stating that agencies are not allowed to withhold, deny, or impose conditions on permits. He also pointed out that the statute grants DEQ authority as outlined in existing laws, supporting his argument.
The state maintains its position, which it has consistently asserted throughout the case and in various hearings and filings over the past two months. They argue that since the MEPA "limitation" was changed by lawmakers, the plaintiffs' only recourse would be to challenge specific permitting decisions, although there have been few such decisions since the new law came into effect.
The plaintiffs initially filed the lawsuit in March 2020 when the previous version of the MEPA limitation, introduced in 2011, was still in effect. Additionally, a state energy policy, which was repealed by lawmakers before the trial, resulted in the dismissal of claims related to the energy policy in the case.
Both Dorrington and Nowakowski admitted during the trial that they had not previously heard the MEPA law referred to as the "MEPA limitation." However, Nowakowski acknowledged the existence of a limitation on MEPA. Dorrington also indicated that he was not extensively familiar with the work of the Intergovernmental Panel on Climate Change, whose climate change reports have formed the basis of testimony from most of the scientific experts presented by the plaintiffs.
During her testimony, Nowakowski, who had previously worked as a research analyst on energy and environmental policy in the legislature's environmental policy office and as the research director for the Office of Research and Policy for 15 years, affirmed that DEQ strictly adheres to the law when granting permits. She stated that due to the current MEPA limitation, which prohibits the state from considering greenhouse gas and climate impacts, the department's actions are constrained.
Plaintiffs' witnesses from the previous week presented evidence demonstrating that the department used to assess greenhouse gas impacts for projects in the 2000s. Consequently, several proposals were rejected due to public opposition, as testified by Anne Hedges, the policy and legislative affairs director of the Montana Environmental Information Center.
Nowakowski disclosed that she had drafted the 2011 MEPA limitation for a senator, which stated that emissions outside of Montana should not be taken into account when evaluating permit applications. This provision was amended by lawmakers in response to a ruling by a Yellowstone County judge, which stated that the state had neglected to examine greenhouse gas emission projections for a NorthWestern Energy power plant in Laurel.
She referenced data from the U.S. Environmental Protection Agency, indicating a decline in gross fossil fuel emissions in Montana during 2020. However, the plaintiffs' lawyers noted that this reduction occurred primarily due to the COVID-19 pandemic's impact, which led to a nationwide decrease in emissions as a result of reduced transportation activities, among other factors.
Nowakowski expressed her belief that if the state were to lose the case, it could potentially lead to changes in environmental reviews involving MEPA. Nevertheless, she emphasized that even in such a scenario, the agency would still be prohibited from considering greenhouse gas or climate impacts due to the recently amended law.
She stated, "It's procedural. It doesn't provide us with the authority to condition or modify, or approve or deny, a permit. That lies solely within the individual (permitting) acts." However, she also acknowledged that these permitting statutes generally lack provisions addressing greenhouse gas and climate impacts, which suggests that even if the limitation were struck down, analyzing such factors would likely remain prohibited under the law.
During the cross-examination by plaintiffs' attorney Barbara Chillcott, Nowakowski was asked if greenhouse gas emissions cause harm to the environmental ecosystem and degrade Montana's natural resources. On both occasions, she responded by stating that she is "not a scientist." However, she did acknowledge that she believes the combustion of fossil fuels is the primary contributor to greenhouse gas emissions. Nevertheless, she asserted that DEQ does not have the authority to consider this factor when evaluating permits.
She stated in court, "I believe there is no authority to regulate climate change or greenhouse gases in those statutes."
Chillcott concluded her questioning of Nowakowski by quoting from her deposition, asking if it was true that she had stated that her career relied on her opinion that fossil fuels contribute to global warming and climate change.
Nowakowski confirmed, "That's what I said in my deposition."
Before the state presented its final witness in the trial, Assistant Attorney General Michael Russell requested that Governor Gianforte, the Department of Transportation, the Department of Natural Resources and Conservation, and the Public Service Commission be removed from the court order as defendants. Russell argued that the plaintiffs had not provided evidence against them.
However, Judge Seeley denied their request, along with a similar one, stating that significant progress had been made in the case, and she intended to consider all the evidence presented with all defendants involved.
She remarked, "We're far enough along here; we might as well finish up."
The state's last witness called to testify was Terry Anderson, a fellow at Stanford University's Hoover Institution and a professor at Montana State University. Anderson identifies himself as a proponent of "free market environmentalism" and labels himself a "climate economist."
The plaintiffs' attorneys promptly objected to Anderson's testimony, arguing that he is an economist and not a climate scientist, as he presented data on Montana's greenhouse gas emissions.
Judge Seeley allowed the state to continue questioning Anderson because he was referencing data allegedly obtained from the Energy Information Administration's website.
Anderson claimed that global greenhouse gas emissions were 34.8 gigatons in 2020 and 36.8 gigatons in 2022, based on the EIA data. He further stated that Montana's emissions, specifically in the area where carbon is consumed, were 0.0262 gigatons in 2020 and 0.036 gigatons in 2022, which he represented as a fraction of global emissions.
However, the testimony quickly took a turn.
Plaintiffs' attorney Phil Gregory pointed out that the numbers Anderson originally submitted in a report last October contained incorrect data, which Anderson acknowledged had been "corrected" prior to his deposition in the case.
Gregory highlighted that Anderson had changed the metric between the two submissions, from million metric tons of CO2 to gigatons of CO2, which made the numbers appear smaller in comparison to global emissions. Additionally, Gregory mentioned that Anderson had altered one of the data points for 2022, which Anderson confirmed.
Anderson revealed that he was being paid $500 per hour by the state for his role as an expert witness in the case. When asked about the number of billable hours he had accumulated thus far, he admitted that he did not know but estimated it to be at least 25 hours, resulting in a minimum bill of $12,500.
During the questioning by Gregory, Judge Seeley inquired about the purpose of the line of questioning and whether Gregory intended to prove that Anderson's numbers were incorrect.
Gregory confidently responded, "Yes, Your Honor. Absolutely 100% wrong."
Gregory presented slides comparing the data submitted by Anderson in the case. While the initial set referred to Montana's carbon dioxide emissions, the updated submission indicated that the data was from the Mountain West region. However, the numbers on both sets of slides were the same.
Anderson explained to Seeley that he had projected Montana's emissions based on estimates from the Mountain region and calculated the expected decline rate. He admitted that although he did not testify about this specific calculation, he had performed it.
Gregory then confronted Anderson about his assertion that Montana's emissions were decreasing, making Anderson acknowledge that the 2022 data showed higher emissions than the 2020 data.
With little further discussion in the courtroom, the parties, along with Seeley, agreed on a schedule for the next day. This schedule involved finalizing evidence submissions, reading one more plaintiff witness deposition, and concluding the trial with 10 minutes of closing arguments for each side.
Following the hearing, attorneys from Our Children's Trust, Julia Olson and Mat dos Santos, expressed satisfaction with how the trial unfolded. Olson stated that she did not expect a ruling from Seeley for at least a month, but both attorneys expressed optimism about the anticipated outcome.
"Yeah, I think we're expecting to win this one," dos Santos said confidently.
https://www.courthousenews.com/youth-led-climate-change-trial-in-montana-continues/
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