Climate ruling fuels political war over Montana Supreme Court
BY: LESLEY CLARK | 08/16/2023 06:39 AM EDT
The bench, which is expected to hear an appeal of an unprecedented legal victory for climate activists, is the next target for Republicans eyeing a “total takeover” of the Montana government, said one former GOP lawmaker.
CLIMATEWIRE | A Montana court ruling that delivered an unprecedented climate victory to 16 young activists appears destined to land before the state’s highest bench — a move that could help stoke the flames of a GOP effort to take control of every facet of the Treasure State’s government.
Attorney General Austin Knudsen, a Republican, has already vowed to appeal a first-of-its-kind decision from Judge Kathy Seeley of the 1st District Court in Montana that said the state’s adherence to fossil fuels violates the Montana Constitution, which guarantees residents the right to a “clean and healthful environment.”
Knudsen’s appeal would land before the Montana Supreme Court, a nonpartisan bench that has long been viewed as progressive. The court has emerged as a key target for Republicans, who hold the Montana governor’s mansion, both chambers of the state Legislature and most of the state’s elected offices.
They’ll soon have a chance to position candidates for the court. Two of the court’s seven justices announced in June that they will not seek reelection, and Montana will hold open elections in 2024 to fill the seats.
Though the climate case — Held v. Montana — will likely be decided by the time new justices are seated in January 2025, the debate over the lawsuit could serve as a flashpoint in an already contentious election.
“It used to be that you could run for Supreme Court, be an attorney with good experience and be politically agnostic, but I don’t know if you could get elected that way now,” said Bob Brown, a former Republican who served nearly 30 years in the Montana Legislature. “It’s become far more intense than it ever was.”
On one side of the debate, Brown said, there is pressure to stop “the MAGA Trump element” from gaining control of the Montana Supreme Court. On the other, he added, some Republicans are on a quest to dominate every branch of the state government.
In their view, he said, “the only thing that’s holding us up is the Supreme Court. They’re trying to complete their total takeover.”
Neither Montana Supreme Court Chief Justice Mike McGrath nor Justice Dirk Sandefur — who news reports noted had the backing of Democrats in his 2016 race — will run for reelection. Sandefur’s opponent, current Montana Lt. Gov. Kristen Juras, had the backing of Republicans and other conservative groups.
Jeremiah “Jerry” Lynch, a former federal magistrate judge, has already filed paperwork for the chief justice position — and drawn opposition.
Montanans for Fair Judiciary in a mailer criticized Lynch as a “liberal trial lawyer.” The Montana Free Press reported that the group is associated with Jake Eaton, a prominent Republican political consultant and former campaign strategist for Knudsen.
Last year’s contest between sitting Montana Supreme Court Justice Ingrid Gustafson and Republican utility regulator James Brown was particularly contentious and riven by politics. It also ranked as the most expensive Supreme Court race in state history. Gustafson, who was appointed by former Gov. Steve Bullock, a Democrat, retained her seat.
Knudsen’s office also castigated the state Supreme Court in May, calling it “disgracefully radicalized and out of touch with Montanans” after a ruling that solidified access to abortion.
In the days since Held was decided, Seeley, the judge who presided over the case, has also faced scrutiny.
Sen. Steve Daines, a Montana Republican who is in charge of retaking the U.S. Senate for the GOP in 2024, criticized Seeley on X, the social media platform formerly known as Twitter. Without using Seeley’s name, Daines referred to her as an “activist” judge, accusing her of “helping far-left environmentalists push their green hallucination down the throats of Americans.”
Odds of another climate win
Legal observers say Seeley leaned heavily on Montana Supreme Court precedent in reaching her decision in Held — potentially boosting the odds of another victory for the young climate activists when the case lands before the state’s highest bench.
“If I had money to bet on the decision, my money would go to the Supreme Court affirming Judge Seeley’s decision,” said James Nelson, a retired Montana Supreme Court justice. “Frankly, I don’t know what there is to appeal.”
Montana’s high court is already familiar with the climate case, having rejecting the state’s effort to quash the lawsuit a week before the Held trial was to begin. Knudsen argued in June that the core of the kids’ challenge had been “eclipsed” by lawmakers, who during the legislative session revised one of the central environmental laws targeted by the case.
Six of the seven high court justices dismissed the request, saying the state had offered no reason why an adverse ruling could not be appealed.
At the time, the justices noted that the trial “with preparation literally years in the making” was set to begin in less than a week, and the court was “not inclined” to disrupt a lower court’s schedule. The court’s longest-serving justice, Jim Rice, said he would postpone the trial, but did not elaborate.
In Seeley’s decision, Nelson said the Montana Supreme Court will find a “meticulously and professionally crafted decision,” grounded in trial evidence and state law. The state, Nelson noted, had been allowed a week to present witnesses, but took just two days and only presented one outside expert, whose testimony Seeley discounted for being “not well-supported.”
Robin Saha, an associate professor of environmental studies at the University of Montana’s Climate Change Studies Program, said he also believes the court will uphold Seeley’s decision because it builds on previous rulings from the high court.
“This case is going to strengthen Montanans’ constitutional right to a clean and healthful environment,” Saha said.
In particular, Saha pointed to a unanimous 2020 decision in which the Montana Supreme Court blocked a proposed gold mine near Yellowstone National Park, finding that the state had failed to adequately analyze the potential effects on the environment.
In the case, the justices found that “Montanans’ right to a clean and healthful environment is complemented by an affirmative duty upon their government to take active steps to realize this right.”
Seeley cited the ruling several times in the Held decision, quoting the Montana Supreme Court as saying that the language in the state constitution that guarantees the right to a clean and healthful environment is “forward-looking and preventative language.”
The justices tends to avoid constitutional questions and will often decide cases on other grounds, said Michelle Bryan, a professor at the University of Montana’s Natural Resources and Environmental Law Program.
But she said several parts of Seeley’s decision point back to Supreme Court rulings, noting that her decision to strike down a new law that prevents agencies from considering the effects of climate change is similar to the provision that was overturned in the gold mining case.
Seeley does raise a new question that the Montana Supreme Court has never addressed — whether the state constitution, which was ratified in 1972, includes a right to a healthy climate.
“The court has consistently said that the delegates to the constitution intended for the environmental provision to be interpreted broadly, not narrowly,” Bryan said. “If the court applies the same methodology as it’s applied in the past, it would look at the provision as Judge Seeley did.”