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The DEQ appealed Held v Montana to the Supreme Court, here’s what’s happening now

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Posted at 5:39 PM, Oct 31, 2023

HELENA — The Department of Environmental Quality (DEQ) is on tour.

It’s been two months since Judge Kathy Seeley issued a decision on Held v Montana, a climate change-related case that made national headlines. Seeley ruled in favor of the 16 plaintiffs, young people aged 5 to 22, who argued the state is failing to maintain their constitutional right to a clean and healthful environment. The ruling has implications on certain Montanan environmental laws.

The state recently filed an appeal, and the case is set to be reviewed by the Montana Supreme Court, likely next year.

In the meantime, the DEQ is holding listening sessions around the state for the public. The agency is posing the question - should MEPA be modernized? The Montana Environmental Policy Act was originally constructed in Montana during the 1970s and 1980s.

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High school students line up to give commentary at a DEQ MEPA Listening Session in Helena.

The next session takes place virtually Wednesday afternoon at 3 PM.

“I ask you to do the analysis and inform permitting decisions now to protect our clean and healthful environment…” said a member of the public at Helena's session, which took place October 18th at the Delta Colonial Hotel.

“...and I can’t tell you how important MEPA is for the state of Montana and all its residents,” said another member.

Industry representatives were also in attendance.

“Northwestern Energy is deeply concerned with regulatory uncertainty under MEPA may hinder our state’s future development of critical infrastructure,” said a spokesperson for the utility company.

For now, there’s an unknown path of how the state is going to move forward with certain MEPA limitations as Held awaits its final ruling from the state Supreme Court.

As a result, constitutionality remains unsettled surrounding new 2023 laws that limit the state from considering emissions in environmental reviews. For one, House Bill 971 states an environmental review may not include an evaluation of greenhouse gas emissions.

In her ruling on Held, Seeley concluded that Montana's climate, environment, and natural resources are unconstitutionally degraded and depleted due to the current atmospheric concentration of greenhouse gases and climate change. Seeley's ruling also spelled out that HB 971 is unconstitutional, however the Montana Supreme Court will have the final say.

Read the full ruling here:

“There’s absolutely nothing wrong with holding a public process, but it has been radio silence from DEQ in terms of how they’re going to comply with this court’s order and when,” said Melissa Hornbein, Senior Attorney at Western Environmental Law Center.

Hornbein works as part of the legal team representing the 16 youth plaintiffs for Held v Montana.

“They [DEQ] testified during trial that they know how to do climate analyses, they have done them in the past, and there’s really no reason, if they are also wanting to hold these listening sessions, that they can’t simultaneously be conducting an adequate climate greenhouse gas analysis for state projects,” said Hornbein.

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Melissa Hornbein, Western Environmental Law Center, spoke with MTN News at a DEQ Listening Session in Helena.

Chris Dorrington, DEQ's director, said his agency is still waiting on a final decision from the higher court.

“If is critical that we wait for a bit of an update of the Supreme Court process to play out,” Dorrington told MTN News.

"I think climate analysis is very much a part of the listening sessions," Dorrington continued, "Can the agency conduct an analysis of what may be emitted in a proposed project? Yes, we can definitely have an awareness of that, assess that and then disclose that, but the range of input in these public sessions is far beyond that."

Dorrington said the input gathered will help the DEQ put together recommendations for MEPA.

“MEPA is a public engagement public sharing platform. It's a statute that really emphasizes strong public engagement. And the dialogue, it's a bi-directional dialogue that’s very important in statute and that's what we honor and then second, just with the emphasis on climate and the awareness that the model rules for MEPA haven't been touched since the late 1980s. It's time for us to listen,” Dorrington said.

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Chris Dorrington speaks to crowd at a DEQ MEPA Listening Session in Helena mid-October.

In a similar vein and with the help of a $3 million EPA grant, the DEQ is set to develop a comprehensive climate action plan which will include strategies to reduce emissions and support communities. The agency notes an emphasis on innovative, non-regulatory measures for this plan and is currently requesting input from the public.

A changing climate means more than just melting glaciers in Montana, which have lost 60% of their area in Glacier National Park since 1900. According to a report by Montana State University on climate change and human health in Montana, the Treasure State has already experienced record-breaking heat waves and longer wildfire seasons.