Montana Assistant Attorney General Thane Johnson asks questions of state expert witness Terry Anderson on June 19, 2023, during the Held v. Montana trial. (Blair Miller, Daily Montanan)
Predictably, the Montana Attorney General’s Office was chastened but not embarrassed – because that would require some modicum of shame – by state district court Judge Kathy Seeley’s decision about climate change and Montana.
Characterizing her as an activist liberal judge, the attorney general’s office tried to sell the notion that every court in America would have arrived or come to a different conclusion in the landmark Held vs. Montana:
Montanans can’t be blamed for changing the climate – even the plaintiffs’ expert witnesses agreed that our state has no impact on the global climate. Their same legal theory has been thrown out of federal court and courts in more than a dozen states. It should have been here as well, but they found an ideological judge who bent over backward to allow the case to move forward and earn herself a spot in their next documentary. — Montana Attorney General Spokesperson Emily Flower
Charming that the office declares itself the victor in the lawsuit by saying that because Montanans aren’t solely responsible for climate change that Seeley got it wrong.
That part shows a certain amount of cunning not characteristically seen in Montana Attorney General Austin Knudsen’s blunt-force legal theories.
While it is true that climate change – even within the state’s border – cannot be placed only at the hands of Montanans, it is also equally insincere and incredible that the Treasure State – known in part because of our carbon-rich natural resources – hasn’t contributed to climate change here and abroad.
And maybe it will be true that other states or other courts may not find a legal toehold in other places, but virtually nowhere has a state constitution been more strongly rooted in the state’s toxic past and the destruction of the natural environment as it is in Montana.
In fact, Montana had become such a collection of toxic messes and exploited resources that the citizens decided to rewrite the state’s 1889 Constitution, replacing it in 1972. And the words they adopted could not have been clearer. Judge for yourself:
Article IX, Section 1. Protection and improvement. (1) The state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations.
(2) The legislature shall provide for the administration and enforcement of this duty.
(3) The legislature shall provide adequate remedies for the protection of the environmental life support system from degradation and provide adequate remedies to prevent unreasonable depletion and degradation of natural resources.
We’re constantly being bombarded with politicians on the right, out to discredit the judiciary because of its independent power, telling us that activist judges are legislating from the bench. To hear them tell it, that’s because those judges are likely hiding additional words and thoughts in their heads and under their robes that they magically insert into court rulings to give libs and tree-huggers a win.
But, if you’ve ever spent any time in a Montana court, judges quote a legal dictum that I swear I can repeat just as easily as my fourth-grade teacher Mrs. Ronning’s definition of self-discipline, which she made us write and rewrite when transgressed (trust me, I had lots of practice). The judge cannot, as the dictum says, insert what was omitted, nor can they omit what has been inserted by the lawmakers or voters.
That is a resounding argument for common sense when it comes to the law. It also means that you should not need a lawyer to read your own state’s constitution, which is unique among many modern constitutions because of its forward-looking obligation to protect what we have here in Montana, not just for our enjoyment, but for our children. That’s part of what made the Held vs. Montana lawsuit so powerful: It was that next generation of Montanans who saw what was happening to a place they love and decided they needed to do something about it.
In addition to the powerful, visionary and timely Article IX, our state constitution also gives minors the same protections as their adult counterparts – meaning that just because they can’t vote (or shave) doesn’t mean the court, politicians or adults can ignore them.
If you don’t read a single word from me, or choose to believe I am part of some liberal conspiracy to help the climate, then read the words of the state constitution for yourself: I challenge you to come up with a different interpretation.
There are three, basic, impossible-to-miss points: The state has a responsibility for preserving a healthy environment; it has the responsibility to make sure enough care is being exercised so that the same clean environment will be here for our children and grandchildren; and it says that the Legislature must take actions to ensure those. It is not passive.
I honestly don’t know how Seeley – or the Montana Supreme Court when the case arrives there – can read it any other way.
Montana, this is what opportunity looks like. In a state that loves our natural beauty and our freedoms, we have an opportunity to figure out how to embrace business while preserving the environment. That will take innovation – another word lawmakers and state leaders like Gov. Greg Gianforte love.
Put another way in equally easily to understand words: It’s time for Montana’s leaders to put their money where their mouth is.
Daily Montanan is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Daily Montanan maintains editorial independence. Contact Editor Darrell Ehrlick for questions: [email protected]. Follow Daily Montanan on Facebook and Twitter.
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