FILED1

AUG 1 4 2023

2

l\ �SF;.!l
Clerk of Dist;ict Court
�K!,
eputy
Clerk
,�4,,.bJ,,!D,
e-==>
a:.:
z
B/d:,l._...1.L..,e"�_

3

4
5

6

MONTANA FIRST JUDICIAL DISTRICT COURTLEWIS AND CLARK COUNTY

7
8

9

10

11

12

13

14

15

16

17

18

Cause No. CDV-2020-307

RIKKI HELD, et al.,Plaintiff,

V.

STATE OF MONTANA, et al.,

FINDINGS OF FACT,CONCLUSIONS OF LAW,AND ORDER

Defendant.

PROCEDURAL HISTORYOn March 13, 2020, sixteen Montana youth (collectively Plaintiffs

19

or Youth Plaintiffs) filed a Complaint for Declaratory and Injunctive Relief

21

Environmental Quality, Montana Department of Natural Resources and

23

Service Commission (collectively Defendants or State). Plaintiffs' Complaint

25

dystem, which they allege causes and contributes to climate change in violation

20

22

24

(Doc. 1) against the State of Montana, the Governor, Montana Department ofConservation, Montana Department of Transportation, and Montana Public

challenged the constitutionality of the State's fossil fuel-based state energy

12

oftheir constitutional rights guaranteed under Article II, Section 3; Article II,
Section 4; Article II, Section 15; Article II, Section 17; Article IX, Section 1;

3

Article IX, Section 3 ofthe Montana Constitution; and the Public Trust Doctrine.

6

fossil fuel-based provisions ofMontana's State Energy Policy Act, Mont. Code

4

5

7

8

9

10

(Doc. 1 �� 3-4).

Specifically, the Complaint challenged the constitutionality ofAnn.§ 90-4-l00l(l)(c)-(g); a provision ofthe Montana Environmental Policy
Act (MEPA), Mont. Code Ann.§ 75-1-201(2)(a) (MEPA Limitation), which

forbids the State and its agents from considering the impacts ofgreenhouse gas(GHG) emissions or climate change in their environmental reviews; and the11

4ggregate acts the State has taken to implement and perpetuate a fossil fuel-based

14

I

12

13

15
16

�nergy system pursuant to these two statutory provisions.
�Doc. 1 �� 4, 105, 108, 118).

Youth Plaintiffs asked the Court for a declaration oflaw

�onceming their constitutional rights; a declaration oflaw that the fossil fuelbased provisions ofMontana's State Energy Policy, Mont. Code Ann.

17

§ 90-4-l00l(l)(c)-(g), are unconstitutional; a declaration oflaw that the MEPA

20

system-carried out in furtherance ofthe State Energy Policy and perpetuated18

19

Limitation is unconstitutional; and a declaration oflaw that Defendants' past andIongoing affirmative aggregate actions to implement a fossil fuel-based energy

21through the MEPA Limitation-are unconstitutional. (Doc. 1, Requests for Relief

24<Code Ann.§ 90-4-l00l(l)(c)-(g), the MEPA Limitation, and aggregate acts;

22

23
25

# 1-5). The Complaint further requested injunctive reliefto enjoin Defendants
from subjecting Plaintiffs to the fossil fuel-based State Energy Policy, Mont.

drder Defendants to prepare a statewide GHG accounting; order

I

Findings of Fact, Conclusions of Law, and Order-page 2
CDV-2020-307

1

Defendants to develop a remedial plan to reduce statewide GHG emissions;2

retain jurisdiction until Defendants have fully complied with the Court's orders;4efficacy. (Doc. 1, Requests for Relief# 6-9). Plaintiffs also requested an order

3
5

6

and, if necessary, appoint a special master to review the remedial plan forawarding Youth Plaintiffs their reasonable attorneys' fees and costs, and any

such further or alternative relief as the Court deems just and equitable. (Doc. 1,

7

Requests for Relief# 10-11).

9t,o Mont. R. Civ. P. 12(6)(1), 12(6)(6), and 12(h)(3). (Doc. 11). After briefing and

112021, (Doc. 46), partially granting and partially denying Defendants' motion to

8

10

On April 24, 2020, Defendants filed a motion to dismiss pursuant

oral argument, the Court issued an Order on Motion to Dismiss on August 4,

12

dismiss.

14

Defendants to develop a remedial plan, to retain jurisdiction over the matter until

13

The Court found that Plaintiffs' requests for the Court to order

15

Defendants complied with the remedial plan, and, if necessary, appoint a special

17

authority under the political question doctrine. (Doc. 46 at 21). Nevertheless, the

16

18

19

master to assist the Court in reviewing the remedial plan exceeded the Court's
Court held that prudential standing considerations did not merit dismissal

because the Court "may grant declaratory relief regardless of injunctive relief.

20

The court possesses the authority to grant declaratory or injunctive relief, or

22

Finally, the Court declined to dismiss Plaintiffs' challenge to

21

23
24
25

both." (Doc. 46 at 22).

i
MEP A for want of administrative exhaustion, finding that "Youth Plaintiffs

Jroperly brought this action in district court rather than through theddministrative review process." (Doc. 46 at 24). The Order granted Defendants'
I

Findings of Fact, Conclusions of Law, and Order - page 3
CDV-2020-307

1motion with respect to Plaintiffs' Requests for Relief# 6, 7, 8, and 9, and denied

2

Defendants' motion with respect to Plaintiffs' Requests for Relief# 1, 2, 3, 4,

5denying virtually all allegations in the Complaint and raising several affirmative8

the parties engaged in discovery throughout 2022.

3

4

6

7

9

and 5.

defenses.

Defendants filed their Answer on September 17, 2021, (Doc. 53),

Pursuant to the December 27, 2021, Scheduling Order (Doc. 61),

On May 6, 2022, Defendants filed a Motion for Clarification of

10

Order on State's Motion to Dismiss pursuant to Rule 60(a), Mont. R. Civ. P.

13

filed a Response in Opposition on May 20, 2022. (Doc. 102).

11

12

14
15

(Doc. 84), seeking clarification on whether Plaintiffs' Request for Relief# 5 hadbeen dismissed by the August 04, 2021, Order on Motion to Dismiss. Plaintiffs
On June 10, 2022, Defendants filed a Petition for Writ ofSupervisory Control (OP 22-0315), requesting the Montana Supreme Court

16

exercise supervisory control and "dismiss Request for Relief5 from this case."

19

Defendants' Motion to Modify Scheduling Order and Setting Scheduling

17

18

20

21
22

23

24

25

On June 14, 2022, the Supreme Court denied the Petition. (OP 22-0315).

On June 15, 2022, the Court issued an Order Partially Granting

Conference. (Doc. 145) (Modified Scheduling Order). The Modified

s'cheduling Order governed the timeline thereafter. Pursuant to the Modified

Scheduling Order, the parties engaged in discovery through January 9, 2023 -including disclosing expert witnesses (Docs. 222, 227), rebuttal expert

Jitnesses (Docs. 240, 242), and conducting dozens ofdepositions.

Ill//

Findings of Fact, Conclusions of Law, and Order - page 4
CDV-2020-307

1

2
3
4
5

On June 30, 2022, the Court issued an Order on Defendants' Rule60(a) Motion for Clarification (Doc. 158), clarifying that "requests for injunctive

relief contained in the complaint were dismissed, except for Request for Relief5." (Doc. 158 at 3).

On July 19, 2022, Defendants filed a Motion for Independent

6

Medical Examination, or, in the Alternative, Motion to Strike Opinions and

8Mont. R. Civ. P. (Doc. 163), alleging that Plaintiffs' allegations of mental health

10(Doc. 163 at 2). On October 14, 2022, the Court issued an Order denying

7

9

Testimony of Plaintiffs' Expert Dr. Lise Van Susteren Pursuant to Rule 35(a),impacts as a result of climate change had placed their mental health at issue.

11

Defendants' motion (Doc. 225), ruling that IMEs were unwarranted because

13r,eally and genuinely in controversy," (Doc. 225 at 6), and because "Defendants

12

14
15

16

"Plaintiffs have not placed their mental health at the center of this case, nor is it

Jave not established good cause for the requested examinations." (Doc. 225 at 7).
On July 20, 2022, Defendants filed a Second Motion for]
Clarification of Order on State's Motion to Dismiss pursuant to Rule 60(a),17Mont. R. Civ. P. (Doc. 167). Defendants' second motion for clarification sought

19

and 5 "don't violate the political question doctrine." (Doc. 167 at 3). On

21

Second Rule 60(a) Motion for Clarification of Order on State's Motion to

18

20
22

23
24
25

clarification from the Court as to why Plaintiffs' Requests for Relief# 1, 2, 3, 4,September 22, 2022, the Court issued an Order (Doc. 217), denying Defendants'

Dismiss.

On September 30, 2022, pursuant to the Modified Scheduling]
Qrder, Plaintiffs disclosed their expert witnesses and expert disclosures. (Doc.
222). On October 31, 2022, Defendants disclosed their expert witnesses andFindings of Fact, Conclusions of Law, and Order - page 5
CDV-2020-307

1expert disclosures. (Doc. 227). On November 30, 2022, the parties exchanged2

rebuttal expert disclosures. (Docs. 239, 242).

4

1iscovery included the completion of thirty-six depositions, the exchange of6

responses to dozens of interrogatories.

3

5

7

8

9

10

Discovery closed on January 9, 2023. Between the parties,

twenty-two expert reports, the exchange of over 50,000 pages of documents, and
On February 1, 2023, Plaintiffs and Defendants file motions inlimine. Plaintiffs filed seven motions in limine (Docs. 260, 262, 264, 266, 268,

270, 272) and Defendants filed seven motions in limine (Docs. 284, 286, 288).
On February 1, 2023, Defendants filed a Motion for Summary

11

Judgment pursuant to Mont. R. Civ. P. 56. (Doc. 290). On February 14, 2023,

13

Plaintiffs filed sixteen declarations from Plaintiffs, experts, and counsel in

12

14
15

16

17

Plaintiffs filed a response brief opposing summary judgment. (Doc. 299).

support of their response brief. (Docs. 300-315). On February 28, 2023,
Defendants filed a reply. (Doc. 332).

On March 16, 2023, Governor Greg Gianforte signed House Bill

170 into law, repealing the Montana State Energy Policy, Mont. Code Ann.

18

§ 90-4-1001.

20

for Mootness pursuant to Mont. R. Civ. P. 12(6)(1), 12(6)(6), and 12(h)(3).

19

21

On March 31, 2023, Defendants filed a Motion to Partially Dismiss(Doc. 339). Defendants moved to dismiss Plaintiffs' claims premised on the

22

Montana State Energy Policy Act, Mont. Code Ann.§ 90-4-1001, on the ground24

I
concemmg. the statute.

23
25

that the repeal of Mont. Code Ann.§ 90-4-1001 (HB 170) mooted claims

I

//Ill

Findings of Fact, Conclusions of Law, and Order -page 6
CDV-2020-307

1
2

On April 14, 2023, Plaintiffs filed a Response Briefin Opposition

to Defendants' Motion to Partially Dismiss for Mootness. (Doc. 354). Plaintiffs

3

filed nine declarations from experts in support oftheir response. (Docs. 355-363).

6366, 367). On April 27, 2023, a Final Pre-Trial Conference was held with the

4

5

7

8

9

10

11

12

On April 26, 2023, unable to reach agreement on a joint proposed

Pre-Trial Order, the parties submitted separate proposed pre-trial orders. (Docs.
Court.

In response to Judge Moses' April 6, 2023, Order on Summary

Judgment in MEIC, et al. v. DEQ, et al., Yellowstone County Cause No.

DV-56-2021-1307, the Montana Legislature adopted House Bill 971, an

amendment to clarify the MEPA Limitation. On May 10, 2023, Governor Greg
Gianforte signed into law HB 971, which clarified Mont. Code Ann.

13

§ 75-1-201(2)(a). The clarifications in HB 971 explicitly prohibit Montana's

16

their MEPA reviews.

14

15

17
18

19

agencies from considering "an evaluation ofgreenhouse gas emissions andcorresponding impacts to the climate in the state or beyond the state's borders" in
On May 12, 2023, the Court heard oral argument on Defendants'

I\fotions for Summary Judgment, Motion to Partially Dismiss for Mootness, and20

Motion to Stay Proceedings.
I
On May 18, 2023, Defendants filed a Motion to Dismiss MEPA

23

claims. (Doc. 382). Defendants filed a reply and request for oral argument on

21

22
24

25

Claims based on the enactment ofHB 971. (Doc. 376). On June 1, 2023,

Plaintiffs filed a response briefopposing Defendant's motion to dismiss theJune 9, 2023. (Doc. 385).

Ill//

Findings of Fact, Conclusions of Law, and Order-page 7
CDV-2020-307

1

On May 19, 2023, Governor Gianforte signed into law Senate Bill2

557, amending several provisions ofMEPA, Mont. Code Ann.§ 75-1-201.

4

Motions to Partially Dismiss for Mootness and For Summary Judgment. (Doc.

6

the Court granted Defendants' motion and dismissed without prejudice Plaintiffs'

8

pursuant to and in furtherance of the State Energy Policy on redressability and10

motion for summary judgment and allowed Plaintiffs' MEP A claims to proceed

3
5

7

9

11

12
13
14

15

On May 23, 2023, the Court issued an Order on Defendants'

379). As to Defendants' Motion to Partially Dismiss for Mootness (Doc. 343),

claims involving the State Energy Policy and Defendants' aggregate acts taken

prudential standing grounds. (Doc. 379 at 3-4). The Court denied Defendants'

to trial. (Doc. 379 at 20-26).

On June 1, 2023, the Court issued an order on the remaining

rpotions in limine. (Doc. 381). The Court granted Plaintiffs' motion# 2; granted
ih part and denied in part Plaintiffs' motions# 3 and 5; and denied Plaintiffs'

motions# 4, 6, and 7. The Court granted Defendants' motions# 1, 4, 5, 6, 7; and16denied Defendants' motions# 2 and 3.

18

of Supervisory Control with the Montana Supreme Court (OP 23-0311),

17
19

20

21

22
23
24
25

'
I

On June 2, 2023, Defendants filed an Emergency Petition for Writr,equesting again that the Supreme Court exercise supervisory control and reverse
this Court's denial of the State's motion for summary judgment. The State also

asked the Supreme Court to stay the trial set to begin June 12, 2023.

On June 6, 2023, the Montana Supreme Court denied theI
Emergency Petition for Writ of Supervisory Control. (OP 23-0311). The

Supreme Court observed that Defendants had "not demonstrated that HB 971's
I

I/Ill

Findings of Fact, Conclusions of Law, and Order-page 8
CDV-2020-307

1amendments alter the allegations the Plaintiffs make in the Complaint"

2

concerning the ivfEPA provision. (OP 23-0311 at 3).

5

pleadings as to the remaining issues and govern[ing] the course of the trial of this8

Trial began June 12, 2023, and ended on June 20, 2023.

3

4
6

7

9

I'

On June 7, 2023, this Court entered the Final Pre-Trial Order

governing this proceeding. (Doc. 384). In addition to "supersed[ing] thecase," (Doc. 384 at 38), the Court's Final Pre-Trial Order denied Defendants'

Motion to Dismiss ivfEPA Claims (Doc. 376). (Doc. 384 at 38).

On June 19, 2023, while trial was proceeding, Defendants filed a10

Bench Memorandum on the Constitutional and Procedural Limits of the Montana

13

FINDINGS OF FACT 1

11
12
14

15
16

Environmental Policy Act. (Doc. 396). On June 25, 2023, Plaintiffs filed a
response (Doc. 402). This briefing discussed in detail SB 557.

The Findings of Fact and Conclusions of Law are based on theevidence and arguments presented at trial. The Court heard live testimony fromt'\"enty-seven witnesses. Plaintiffs presented testimony from twenty-four

17witnesses and Defendants presented testimony from three witnesses. The Court

20
21

IJ

23
24

c1omplaint was filed in March 2020, Plaintiffs were from two to eighteen years

old. They are now between five and twenty-two years old.

18

19

22
25

admitted one hundred sixty-eight of Plaintiffs' exhibits and four of Defendants'

exhibits.

PARTIESA.

Plaintiffs

1.

Plaintiffs are youth citizens of Montana. When the

1 Citations to the trial transcript, exhibits, and demonstrative slides are in brackets and identified

by witness using their initials. For example, "SR-14", refers to Steven Running demonstrative
slide 14.

Findings of Fact, Conclusions of Law, and Order - page 9
CDV-2020-307

1

2

3

2.

Plaintiffs are Rikki Held, Lander Busse, Sariel Sandoval,

Kian Tanner, Georgianna Fischer, Kathryn Grace Gibson-Snyder, Olivia

yesovich, Claire Vlases, Taleah Hernandez, Badge B., by and through his
I4

guardian Sara Busse, Eva L., by and through her guardian Mark Lighthiser, Mica

7

Ruby D., by and through her guardian Shane Doyle, and Lilian D., by and

5

6

8

9

10

11
12
13

K., by and through his guardian Rachel Kantor, Jeffrey K., by and through his
guardian Laura King; Nathaniel K., by and through his guardian Laura King,t,hrough her guardian Shane Doyle.
3.

Rikki Held is from Broadus, Montana, was eighteen years

old when this case was filed, and is currently twenty-two years old.
4.

Lander Busse is from Kalispell, Montana, was fifteen years

old when this case was filed, and is currently eighteen years old.
5.

Sariel Sandoval is from Ronan, Montana, and lives on the14

Flathead Indian Reservation. She was seventeen years old when this case was

17

old when this case was filed, and is currently eighteen years old.

15

16

18

filed and is currently twenty years old.
6.

7.

Kian Tanner is from Bigfork, Montana, was fourteen years
Georgianna Fischer is from Bozeman, Montana, was19seventeen years old when this case was filed, and is currently twenty-one years

22

Jas sixteen years old when this case was filed, and is currently nineteen years

20
21

23

24

25

old.

old.

8.

Kathryn Grace Gibson-Snyder is from Missoula, Montana,

9.

Olivia Vesovich is from Missoula, Montana, was sixteen

ybars
old when this case was filed, and is currently twenty years old.
I
Findings of Fact, Conclusions of Law, and Order- page IO
CDV-2020-307

1

2

3

4

5

6

7

8

9

10

11
12

13

14
15
16

17

10.

Claire Vlases is from Bozeman, Montana, was seventeen

years old when this case was filed, and is currently twenty years old.
11.

Taleah Hernandez is from Polson, Montana, was sixteen

years old when this case was filed, and is currently nineteen years old.
12.

Badge B. is from Kalispell, Montana, was twelve years oldwhen this case was filed, and is currently fifteen years old.
13.

Eva L. is from Livingston, Montana, was fourteen years old

When this case was filed, and is currently seventeen years old.
14.

Mica K. is from Missoula, Montana, was eleven years oldwhen this case was filed, and is currently fifteen years old.
15.

Jeffrey K. is from Montana City, Montana, was six years old

17.

Ruby D. is from Bozeman, Montana, was twelve years old\3/hen this case was filed, and is currently nine years old.

16. Nathaniel K. is from Montana City, Montana, was two years\
old when this case was filed, and is currently five years old.

when this case was filed, and is currently fifteen years old.
18.

Lilian D. is from Bozeman, Montana, was nine years old

19.

Defendants are the State ofMontana, Governor Greg

18

Jhen this case was filed, and is currently twelve years old.

21

Gianforte, Montana Department ofEnvironmental Quality, Montana Department

19

20

22

23

24

25

B.

Defendantsof Natural Resources and Conservation, Montana Department ofTransportation,and Montana Public Service Commission.
I

//Ill

20.

The State ofMontana is a governmental entity.

Findings of Fact, Conclusions of Law, and Order- page 1 1
CDV-2020-307

1

2

3

4

21.

Greg Gianforte is the current Governor of Montana. He is

22.

As Governor, Governor Gianforte is charged with seeing

23.

Governor Gianforte has supervisory authority over the24.

Governor Gianforte holds cabinet meetings, communicatessued in his official capacity.

5

that the State's laws are faithfully executed, including the Constitution. Mont.
I
Const. Art. VI, Sec. 4.

7

principal departments of the executive branch.

9with other state officers, oversees budget expenditures, and has authority to issue

6
8

10
11

executive orders. [Def. Answer, Doc. 11 � 84].
25.

Defendant Montana Department of Environmental Quality

26.

DEQ is the primary administrator of Montana's

12(DEQ) is a department of the State of Montana.

14

environmental regulatory, environmental cleanup, environmental monitoring,

13

15

p�llution prevention, and energy conservation laws. [Def. Answer, Doc. 11 � 88].

17which it issues pennits, licenses, authorizations, or other approvals comply with

16

27.

DEQ is mandated to ensure that projects and activities for

18

Montana's environmental laws and rules (including MEPA) to maintain and

202; Def. Answer, Doc. 11 � 88].

19

21

improve Montana's natural environment. [Agreed Facts, Final PTO, Doc. 384 at
28.

DEQ is mandated to comply with the Montana Constitution

29.

DEQ issues air quality permits for applications that22

ai:id state law. [CD 1308:6-12].

24

demonstrate compliance with all applicable requirements of the Federal and/or

23

25

Montana Clean Air Act and their implementing rules, including but not limited to

Findings of Fact, Conclu s ions of Law, and Order- page 12
CDV-2020-307

12coal and natural gas-powered energy plants, coal mining operations, and oil andgas refineries. [Agreed Facts, Final PTO, Doc. 3 84 at 2; Def. Answer, Doc. 1 1

3

� 90].

5

MEPA, including for projects related to fossil fuels, such as natural resource

4
6

7
8

9

10
11

30.

DEQ prepares environmental review documents under

extraction and power generating facilities. [CD 1 3 1 3 :2 1- 1 3 1 5 : 1 3].
31.

DEQ has authority to certify certain pipelines that meet thedefinition provided in the Major Facility Siting Act, § 75-20-1 04(9)(6 ), MCA,

and that comply with the requirements of the Major Facility Siting Act. [Agreed
Facts, Final PTO, Doc. 3 84 at 2; Def. Answer, Doc. 1 1 ,r 9 1] .
32.

DEQ permits coal mining for applications which meet the12requirements set forth in Titles 82 (Minerals, Oil, and Gas) and 75

14

Montana on state, private, and federal land. [Agreed Facts, Final PTO, Doc. 384

16

33. Pursuant to its statutory authority, DEQ has discretion toId�ny and revoke permits. [SN 1 3 92:24-1393 :6].

13
15

17

18

19

(Environmental Protection). DEQ has issued permits for surface coal mining in
at 2; Def. Answer, Doc. 1 1 ,r 92].

34. Since 20 1 1 , pursuant to the MEPA Limitation, DEQ has notI'analyzed in its environmental review documents the cumulative impacts of the20

permits it issues on GHG emissions or climate change. [AH 846 : 1 -3 , 8 1 8 : 1 1-22

3 5 . Defendant Montana Department of Natural Resources andiConservation (DNRC) is a department of the State of Montana.

21

23

24

25

8 1 9: 1 0].
'

36. DNRC prepares environmental review documents under;
MEPA. [Shawn Thomas Perpetuation Deposition, 42: 1 - 1 6] .

Findings of Fact, Conclusions of Law, and Order- page 13
CDV;2020-307

1

2

37.

DNRC manages the resources of the state trust lands throught)le State Board of Land Commissioners (Land Board). [Agreed Facts, Final

3

�TO, Doc. 384 at 2; Def. Answer, Doc. 11 ,r 95].

5result in GHG emissions in Montana. [Agreed Facts, Final PTO, Doc. 384 at 2].

7tinder its jurisdiction, including licenses for exploration and leases for production

9

Final PTO, Doc. 384 at 2].

4
6

8

10

11

38.

DNRC regulates, permits, and authorizes activities that39.

DNRC issues leases, permits, and licenses for uses of lands

and extraction of oil and gas in Montana and permits for drilling. [Agreed Facts,

40. DNRC has exercised its authority to grant easements for theIIoperational rights-of-way for interstate pipelines, with the approval of the Land

12

Board, and issues land use licenses for the construction of rights-of-way and

14interstate pipelines, which are used to transport fossil fuels. [Agreed Facts, Final13

other activities on state lands and waterways for the construction and operation of

15

�TO, Doc. 384 at 2; Def. Answer, Doc. 11 ,r 95].

17

planning and implementing forestry and fire management programs, as well as

16
18
19

20

41.

DNRC, through its Forestry Division, is responsible forauthorizing and permitting commercial timber sales on trust lands. [Agreed Facts,
Final PTO, Doc. 384 at 3; Def. Answer, Doc. 11 ,r 97].
42.

Defendant Montana Department of Transportation (MDT) is

43.

MDT is responsible for state planning in the transportation

21

a I' department of the State of Montana.

23

sector and is charged with collecting and enforcing fuel taxes. [Agreed Facts,
I
Final PTO, Doc. 384 at 3].

22
24
25

//Ill

Findings of Fact, Conclusions of Law, and Order - page 1 4
CDV-2020-307

1

44.

Defendant Montana Public Service Commission (PSC) is a

45.

PSC regulates, supervises, and controls public utilities,

46.

PSC sets standard-offer contracts for qualifying facilities

47.

PSC is responsible for the safety of interstate pipelines,2

governmental entity.

4

6ommoncarriers, railroads, and pipelines. [Agreed Facts, Final PTO, Doc. 384
I

3

5

6

at 3].

7

a.nd utility rates. [Agreed Facts, Final PTO, Doc. 3 84 at 3].

9including crude oil or petroleum products that operate within or through8

10Montana. [Agreed Facts, Final PTO, Doc. 3 84 at 3].

12functions has resulted in the extraction, transportation, and consumption of fossil

14
15

49. The extraction, transportation, and consumption of fossil
1ftlels results in GHG emissions. [Agreed Facts, Final PTO, Doc. 3 84 at 3].

17

iri Montana. [Def. Answer, Doc. 1 1 ,r 1 1 8].

19

a1;1thorized by Defendants. [Def. Answer, Doc. 1 1 ,r,r 90, 96].

21

fossil fuels yet to be extracted. [PE 944 :24-946:4; PE-37].

11

13

16

18

20

22
23

24

25

48.

Defendants' performance of their respective governmental

fuels. [Agreed Facts, Final PTO, Doc. 384 at 3].

50.

Defendants authorize the operation of coal-fired powerplants

I

51.

The drilling for and production of oil in Montana isI52.

Montana has an abundance of energy sources, including

53.

The Montana Legislature enacted Mont. Code Ann.

§ :90-4-1 00 1 (repealed) and the MEPA Limitation as amended. [Def. Answer,
I
Doc. 1 1 ,r 82].

Ill//

Findings of Fact, Conclusions of Law, and Order- page 1 5
CDV-2020-307

I

54.

Montana's State Energy Policy was codified at Mont. Code55.

Mont. Code Ann. § 90-4- 1 00 1 was enacted by the Montana

56.

The Montana Legislature repealed Mont. Code Ann.

2

Ann. § 90-4- 1 00 1 . [Def. Answer, Doc. 1 1 � 1 12].

4

Legislature in 1 993 and amended in 201 1 . [Def. Answer, Doc. 1 1 � 1 1 5].

6§: 90-4-1 00 1 in 2023 . The Governor signed the repeal, HB 1 70, into law on

3

5

7
8

March 1 6, 2023.
I

57.

The provisions ofMEPA governing environmental reviews

58.

In 20 1 1 , the Montana Legislature amended MEPA to limit9

are codified at Mont. Code Ann. § 75-1 -20 1 .

11the scope of environmental reviews-enacting the MEPA Limitation, which

1012prohibited Montana's agencies from considering in their MEPA reviews "actual

14

impacts that are regional, national, or global in nature."

16

MEPA Limitation in 2023. The Governor signed the clarifying legislation, HB

13

15

17
18

19

20

21

or potential impacts beyond Montana's borders . . . [or] actual or potential
59.

I

The Montana Legislature adopted amendments to clarify theI971, into law on May 1 0, 2023 .
60.

The MEPA limitation now provides that Montana's agencies

are prohibited from considering "an evaluation of greenhouse gas emissions andc0rresponding impacts to the climate in the state or beyond the state's borders."

23

Mont. Code Ann. § 75-l-201 (2)(a) (enacted by HB 97 1 , 68th Legislature (2023)).
!
6 1 . The 2023 Montana Legislature amended various provisions
1ofMEPA that pertain to legal challenges to MEPA environmental reviews.

25

Legislature, and signed into law by the Governor on May 1 9, 2023.

22

24

j

62.

SB 557 was introduced on March 27, 2023, passed by theI

Findings of Fact, Conclusions of Law, and Order- page 16
CDV-2020-307

1

2

3

4

5

6

63.

§ 75-1-201(6)(a)(ii), which eliminates the preventative, equitable remedies for
MEPA litigants who raise GHG or climate change issues. The new subsection

provides in part:[ a]n action alleging noncompliance or inadequate compliance witha requirement of parts 1 through 3, including a challenge to anagency's decision that an environmental review is not required or aclaim that the environmental review is inadequate based in whole orin part upon greenhouse gas emissions and impacts to the climate inMontana or beyond Montana's borders, cannot vacate, void, or delaya lease, permit, license, certificate, authorization, or other entitlement
or authority unless the review is required by a federal agency or theUnited States congress amends the federal Clean Air Act to include
carbon dioxide as a regulated pollutant.

7

8

9

10
11

12

13

14

15

16

17

SB 557 enacted a new provision, Mont. Code Ann.

Mont. Code Ann. § 75-1-201(6)(a)(ii) (enacted by SB 557, 68th Legislature(2023)).
64.

Defendants cited Mont. Code Ann.§ 75-1-201(6)(a)(ii) andSB 557 as foreclosing redressability in this case in their June 19, 2023, Bench

Memorandum on the Constitutional and Procedural Limits ofthe Montana
I
Environmental Policy Act. (Doc. 396).

18

II.

21

Emeritus of Global Ecology in the College ofForestry and Conservation at the

19

20

22
23
24

25

I'

CLIMATE SCIENCE AND PROJECTIONS.
A.

Climate Science65.

Dr. Steven Running is a University Regents Professor

University ofMontana. [SR-2]. Dr. Running currently co-chairs the standing
Committee for Earth Science and Application from Space ofthe National

�cademy of Science. In 2007, Dr. Running shared the honor ofthe Nobel Peace
Ptze as a chapter Lead Author for the 4th Assessment Report ofthe

Findi ngs of Fact, Conclusions of Law, and Order - p age 1 7
CDV-2020-307

1Intergovernmental Panel on Climate Change (IPCC). [Pl 93]. Dr. Running3

the energy balance and imbalance, the physics of GHG emissions that are driving

5

control this energy imbalance, and then how human caused fossil fuel7

well-qualified expert, and the Court found his testimony informative and

2

4

6

8

9

10

11

provided expert testimony in the general areas of the climate system, including

climate change, the global carbon cycle, the global hydrologic cycle, how they

development is harming Montana's ecosystems and hydrology. Dr. Running is acredible.

66.

Dr. Cathy Whitlock is Regents Professor Emerita of Earth

Sciences and a Fellow of the Montana Institute on Ecosystems at Montana State

University (MSU). Dr. Whitlock was lead author of the 2017 Montana Climate

12

Assessment, and in 2020 co-authored a state-level Montana Climate Solutions

14

Climate Change and Human Health in Montana. Dr. Whitlock was also co-lead

13

15

Plan and a 2021 special report of the Montana Climate Assessment entitledauthor of the 2021 Greater Yellowstone Climate Assessment. Dr. Whitlock

16

provided expert testimony explaining how human-caused fossil fuel development

18

e'cosystems, water supplies, communities, and the Plaintiffs themselves. Dr.

17

ahd the resulting release of CO2 into the atmosphere are harming Montana's

19

Whitlock also discussed recent trends and future projections in temperature,21

�nd explained how they affect terrestrial ecosystems, communities, and the20

22

Jrecipitation, snow accumulation and snowmelt, and stream runoff in Montana
livelihoods of people that depend on these ecosystem services. Dr. Whitlock's

23

testimony included projections for Montana's future based on continuing or

25

I!,III

24

ihcreasing the present rate of GHG emissions. Dr. Whitlock's testimony

Findings of Fact, Conclusions of Law, and Order - page 1 8
CDV-2020-307

1

2

3

4

primarily focused on the effect GHG emissions in Montana. Dr. Whitlock is awell-qualified expert, and the Court found her testimony informative andcredible.

67.

There is overwhelming scientific consensus that Earth is5wanning as a direct result of human GHG emissions, primarily from the burning

7

P23, P34, P223, P l 43; SR-22].

9gasoline or jet fuel), and natural gas. [PE 901 :24-902:8].

11

fuels, carbon dioxide (CO2) is the GHG most responsible for trapping excess heat

6

8

10

of fossil fuels. [SR 102:10-103:9, 125 : 11-22, 141:18-20; CW 257:14-25; P6, P13,
68.

Fossil fuels include coal, crude oil or its derivatives (such as

69.

While several GHGs are emitted from the burning of fossil

12

within Earth's atmosphere. [SR 114:20-116:10].

14

i:ire occurring due to human activities, primarily from the extraction and burning

13

15

16

70.

Science is unequivocal that dangerous impacts to the climatedf' fossil fuels. [SR 103:5-9; P6, P23, P34, P223, P l 43; SR-46, SR-47] .

71.

A substantial portion of every ton of CO2 emitted by human17

activities persists in the atmosphere for as long as hundreds of years or millennia.

19

cw 279: 14-20, 314:20-315:8, 318:2-5].

21

fo the climate being experienced today. [SR 168:2-16]. Human activity and the23

42% of the total accumulation of CO2 emissions has happened in the last thirty

18

20
22
24

25

As a result, CO2 steadily accumulates in the atmosphere. [SR 166:2-10, 168:2-10;72.

The cumulative effect of GHG emissions causes the impacts

iurning of fossil fuels have accelerated the accumulation of CO2 to the point thatI

years. [SR 141: 16-142:2; SR-42] .

/1111

Findings of Fact, Conclusions of Law, and Order - page 19
CDV-2020-307

1

2

3

4

5

6

73.

It has long been understood that certain GHGs, including

CO2 and methane (CH4), trap heat in the atmosphere, causing the Earth to warm.
i[SR 107: 16-25]. An American, Eunice Newton Foote, was one ofthe first�cientists to research and write about the ability ofatmospheric carbon dioxide toI

1ffect solar heating in the 1850s. [SR 108:22-109:3; SR-14].
'

74.

In 1896, Svante Arrhenius, a Swedish chemist, wrote that7

the practice ofburning fossil fuels emitting CO2 could one day warm the planet.

10

would warm. [SR 108:8-13]. At the time ofArrhenius's work, atmospheric CO2

8

9

11

12

13
14

15

[SR 108:1-8]. Arrhenius, and other early climate scientists, understood that themore CO2 that was added to the atmosphere, the more the surface ofthe Earthlevels were approximately 295 parts per million (ppm). Pre-industrial levels
were approximately 280 ppm. [SR 109:22-25; SR-14].
75.

In 1958, Dr. David Keeling began the modern monitoring of

atmospheric CO2 at Mauna Loa, Hawaii, a remote location not near any local

16

CO2 sources. [SR 111: 12-21]. Keeling's data, now replicated at dozens of!
stations worldwide, proved that CO2 has continued to rise every year from 1958

19

lurve showing a long-term increase in CO2 concentrations has become known as

17

18

to the present from an initial concentration of315-316 ppm in 1958, to an annual

mean level ofaround 424 ppm today. [SR 112:22-113:4, 113:16-114:8]. The

20

�he "Keeling Curve." [SR 110 :22-111 :11, 113 :20].

22

3 ppm per year, primarily from fossil fuel emissions. [SR 117:14-20, 118:1-12,
I
121:9-11; SR-21].

21

23
24
25

76.

Between 1960 and 2000, CO2 levels rose at about

2 ppm per year, but since approximately 2000, CO2 levels are rising at about
I
I

//Ill

Findings of Fact, Conclusions of Law, and Order - page 20
CDV-2020-307

12

Keeling Cu rve

3

Atmospheric CO 2 at Mauna Loa Observatory

4

420

5

EC.

6

.!:! 360
0

8

8 340

9

10
13

14

-------------

35 0

320

11
12

S<ripp� 11,stitul1on or Oec-i,m:1gruphy,JOAA Glob<'!II Monitonng L.abor.:itory

400

§ 380
�

7

422

1960

77.

1970

1980

1990
'reor

2000

2010

2020

Su,,..,,, Q.,_-,,,.,,,,'"'"""·''rJ��,;p,, ·c:r-'".-:"""-'.

CO2 levels have fluctuated throughout history, but the rate ofincrease in atmospheric CO2 is 100 times faster than in natural CO2 fluctuations

15and cycles, and it is happening in a very short timeframe that is unprecedented in

18

national, and Montana air temperatures to rise, as measured by meteorological

16

17
19

20

21

22
23
24
25

the geologic record. [SR 119:20-121: 11; SR-19].
78.

The continuous rise in atmospheric CO2 has caused global,

Jtations. Total global temperature rise over the last 120 years is on average 2.2°F,
9r about l.2°C. [SR 132:19-22; SR-38; CW 262:4-21; CW-18, CW-19, CW-20].

I
I

79.

Montana is heating faster than the global average because

higher latitudes are heating more quickly. [CW 263 :20-264:7].
80.

�cw 266:15-16].

Montana is warming, and the rate ofwarming is increasing.

Findings of Fact, Conclusions of Law, and Order - page 2 1
CDV-2020-307

1

2

3

4

5

81.

The Earth has warmed by 1.3 to 2.2°F in only the last thirty­

five years, as atmospheric CO2 concentrations have risen from 350 ppm to over

420 ppm today. [SR 130:14-18; SR-35, SR-64]. It previously took 140 years for
the Earth to warm by 0.9 °F. [SR-35]. The Earth is heating more quickly now.

2020 was the second warmest year on record, and land areas were record warm.
I

6

The ten warmest years on record have occurred since 2005, and since 1981, a9temperatures. [SE 131:20-132:10; SR-37].
i
I
82. The Earth's energy imbalance (the difference in energy from

7

8

10

11

dew global temperature record has been set every three years. Since 1980, theI�arth has not experienced a single year with below long-term averageIsun arriving at the Earth and the amount radiated back to space) is what climate

12

sbientists describe as the most critical metric for determining the amount of

15

f29: 17-20; SR-34]. Scientists measure and calculate how much extra energy, or

13
14
16

17

I

•

diobal heating and climate change we have already experienced andwill experience as long as the Earth's energy imbalance exists. [SR 122:1-15,

heat, is being retained in Earth's systems, like oceans, ice, air, and land surface,sompared to what Earth's natural balance would be ifmore heat escaped our18

atmosphere. [SR 122:1-15, 129:21-130:4].

21

�nergy measured in joules and the rate ofadditional energy measured in watts per

19

20

22
23
24
25

83.

The Earth's energy imbalance is currently significant and isdue to accumulation ofenergy within Earth's oceans, ice, land, and air, with thes�uare meter. [SR 124:14-125: 18]. A watt is the addition ofone joule ofenergy

ih one second, which is then averaged by the area ofthe Earth to yield watts pers�uare meter. From 1971 to 2018, the Earth gained about 360 zeta joules ofheat(h zeta is a unit with 21 zeros; a trillion has 12 zeros). [SR-29]. Adding this much

Findings of Fact, Conclusions of Law, and Order - page 22
CDV-2020-307

1energy over forty-eight years yields an energy imbalance of about 0.5 W m-2 •2However, the rate of energy addition has continued to increase due to increasing

4

W m-2• [SR 1 22 : 1 4-24; SR-29; P79] .

3

5

6

7
8

GHG emissions and the Earth's energy imbalance for 20 1 0 to 20 1 8 is about 0.9I84.

358 zeta joules are enough energy to bring Flathead Lake to�oil 40,000 times over. [SR 1 25 :3-6; SR-3 0] .

85. As long as there is an energy imbalance, the Earth will!
continue to heat, ice will continue to melt, and weather patterns will become

10111oreextreme. [SR 1 27:7-22, 1 3 1 :9-15, 1 37:6-9, 149:2- 1 4] . If more GHGs are1· iddedto the atmosphere and more incoming energy received from the sun is'12[SR 125 :7-22].

9

11

13

trapped as thermal energy, the Earth's climate system will continue to heat up.

14

86. The scientific consensus is that CO2 from fossil fuelI
11ollution
is the primary driver of Earth's energy imbalance. [SR 1 17:2 1 - 1 1 8 : 12;
I16!�st 1 40 years (and to a lesser extent other GHGs), more solar energy is now

15

17

1?5 : 1 1-22] . Due to the buildup of CO2 from about 280 ppm to 4 1 9 ppm in theretained on Earth and less energy is released back to space. [SR 1 3 0 :8-14; P20,

18

P22, P79; SR- 1 4] .

20

ii due to anthropogenic changes in the environment, not natural variability. [SR

22

I

19

21

:

I

87.

1\03:5-9, 1 2 1 :7- 1 1] .
88.

The buildup of CO2 and the current Earth energy imbalanceApproximately 89% of annual anthropogenic CO2

23emissions, or 3 5 gigatons of CO2, is attributable to burning fossil fuels. [SR25

u1se change, which includes wildfires, agricultural burning, and deforestation.

24

1 1 5 :9-1 7; SR-20] . Approximately 1 1 % of annual anthropogenic CO2 is from land

Findings of Fact, Conclusions of Law, and Order - page 23
CDV-2020-307

1[SR 1 1 5 : 1 8-22, 1 1 6:7- 1 5 ; SR-20] . This means that fossil fuel use is around 1 0

2times as large as other sources of emissions due to human management. [SR4these emissions end up in the atmosphere, 29% are absorbed in back up in the

3

5

6

1 1 5 : 1 5-2 1 ) . In terms of the CO2 humans emit each year, approximately 48% of

biosphere, and 26% are absorbed by the oceans. [SR 1 1 5 :7-1 1 7 : 1 0; SR-20] .
89.

Until atmospheric GHG concentrations are reduced, extreme

7

weather events and other climactic events such as droughts and heatwaves will

9

live clean and healthy lives in Montana. [SR 128:22-129:5, 1 3 1 :5-15,

8

10

11

12
13

14
15

16

17
18

19

20
21

22

occur more frequently and in greater magnitude, and Plaintiffs will be unable to
1 49:2-1 50:7; SR-45; LVS-44) .
90.

There is scientific certainty that if fossil fuel emissions

91.

Each additional ton of GHGs emitted into the atmosphere

continue, the Earth will continue to warm. [SR 1 06 : 1 5 - 1 8, 1 68:20-24; SR-46,
SR-47] .

exacerbates impacts to the climate. [SR 1 06 : 1 5- 1 8, 1 88 :3-6; CW 279 : 1 4-20,
3 � 4:20-3 1 5 :8, 3 1 8 :2; P l 43 ] .
92.

Every ton of fossil fuel emissions contributes to global

warming and impacts to the climate and thus increases the exposure of Youth

Plaintiffs to harms now and additional harms in the future. [SR 1 68 : 1 7- 1 69:7;
CW 279: 1 4-20, 3 1 4:20-3 1 5 :8, 3 1 8 :2-5; PE-40] .
I

B.

Climate Change Projections.
93.

Computer models used by scientists are an important tool for23p�edicting climate change and are reasonably relied upon by members of the

25

11)11

24

scientific community. [SR 90:23-91 :9] .

Findings of Fact, Conclus ions of Law, and Order-page 24
CDV-2020-307

1
2

94.

Projections indicate atmospheric CO2 and other GHGs will

increase the severity ofall impacts to the climate for the foreseeable future,3

absent drastic reduction in fossil fuel use and the resulting GHG emissions.

6

continue to increase, impacts to the climate will become more severe.

9temperatures over 90 degrees, is expected to increase by 11 - 30 days by

4
5

7

8

[SR 106: 1-18, 169:22-170:10, 170:16-22; CW 269:14-18; SR-46, SR-47].
95.

There is a strong scientific consensus that as GHG emissions

96.

The yearly days in Montana with extreme heat, meaning[SR 106:15-18, 137:3-9; SR-43].

10

midcentury, and by as much as two months by the end ofthe century.

13

275:21-276:7; CW-27; P222].

11

12
14
15

16

[CW 273:6-20; CW-24, CW-28]. At the same time, the number ofdays above
freezing will increase by weeks to months in the future. [CW 273:6-20,
97.

Projections indicate a high-emission scenario results in

9.8 °F ofwarming in Montana by 2100, relative to temperatures in 1971-2000. An
intermediate emission scenario projects an increase of 5.6°F in Montana by 2100,

17relative to temperatures in 1971-2000. [CW 270:1-27 1:9; CW-23; P222].

20

health (very high confidence). [SR-48]. There is a rapidly closing window of23

impacts now and for thousands ofyears (high confidence)." [SR 149:15-150:7;

18

19

21
22

24

25

i

98.

According to the Intergovernmental Panel on Climate

Change (IPCC), "Climate change is a threat to human well-being and planetaryopportunity to secure a liveable and sustainable future for all (very highconfidence) . . .. The choices and actions implemented in this decade will have
Pil43; SR-48, SR-63; LB-43].

I

!///!

Findings of Fact, Conclusions of Law, and Order- page 25
CDV-2020-307

1

2
3

4
5

6

7
8

9

10

11

12
13

99.

According to the IPCC, "[i]n the near term, every region of

the world is projected to face further increases in climate hazards (medium tohigh confidence, depending on region and hazard), increasing multiple risks toecosystems and humans (very high confidence). Hazards and associated risks

e,xpected in the near-term include an increase in heat-related human mortality andri10rbidity(high confidence), food-borne, water-borne, and vector-borne diseases'(�igh confidence)." [SR-46, SR-47; LB-42].
'

III.

CLIMATE CHANGE HARMS CHILDREN AND SPECIFICALLYTHE YOUTH PLAINTIFFS.

1 00. Dr. Lori Byron obtained a Doctor of Medicine degree in

1 984. She has been a board-certified pediatrician since 1 988. Dr. Byron earned a

M.S. in Energy Policy and Climate from Johns Hopkins in 2020. From 1 988-

14

2'0 1 5, Dr. Byron worked with the Indian Health Service in Crow Agency,*ontana, providing primary care, emergency care, and public health services to

16

Health in Billings, Montana. Dr. Byron has decades of experience caring for

18

decade, Dr. Lori Byron and her husband, Dr. Rob Byron, have made15

17

Crow Indian children. Dr. Byron now works as a pediatric hospitalist at SCL

children who have suffered Adverse Childhood Events (ACEs). Over the pastI

19

presentations on climate change and health locally, nationally, and21

Committee of the Council on Environmental Health and Climate Change with the2022

irtternationally. Dr. Lori Byron finished a six-year term on the Executive

American Academy of Pediatrics and a six-year term on the Children's Health23p�otection Advisory Committee with the Environmental Protection Agency

25

//Ill

24

I

(�PA). Dr. Byron was an author on the 2021 report "Climate Change and Human

Findings of Fact, Conclusions of Law, and Order - page 26
CDV-2020-307

1Health in Montana: A Special Report of the Montana Climate Assessment," as3101. Dr. Byron provided expert testimony that climate change

245

well as other climate and health publications.

and the air pollution associated with it are negatively affecting children inMontana,
including Youth Plaintiffs, with a strong likelihood that those impacts
I

6

Jill worsen in the absence of aggressive actions to mitigate climate change.

8

that are harming the health and well-being of the Youth Plaintiffs. Dr. Byron

7

Dr. Byron outlined ways in which climate change is already creating conditions
I

9

testified that reducing fossil fuel production and use, and mitigating climate

11

their lives. Dr. Byron is a well-qualified expert, and the Court found her

10

12

13
14
15

change now, will benefit the health of the Youth Plaintiffs now and for the rest of

testimony informative and credible.

102. Dr. Lise Van Susteren is a board certified general andforensics clinical psychiatrist, in practice for thirty years. She is a Clinical

Associate Professor of Psychiatry and Behavioral Sciences at George

16

Jashington University in Washington, D.C. In 2009, Dr. Van Susteren co­18change. In 2013, Dr. Van Susteren worked with Dr. James Hansen and other20

Rbductions of Carbon Emissions to Protect Young People, Future Generations

22

Distinguished Fellow award of the American Psychiatric Association, its highest

17
19

21

23
24
25

convened one of the first conferences on the psychological effects of climate
experts on a paper, Assessing "Dangerous Climate Change": RequiredaAd Nature. (Hansen et al., 2013). In May 2018, Dr. Van Susteren received theImembership honor. Dr. Van Susteren has helped develop youth climate anxiety
1

assessment tools, conducted research and reviewed data in assessing the mental

health of young people faced with climate change. Dr. Van Susteren provided

F in dings of Fact, Conclusion s of Law, an d Order-page 27
CDV-2020-30712expert testimony on the physiological harms caused by climate change toMontana's youth, including the Youth Plaintiffs, the psychological harms caused

3by the MEPA Limitation, and the availability ofremedies to alleviate Plaintiffs'

6103. Michael Durglo, Jr., is a member ofthe Confederated Salish

45

psychological injuries. Dr. Van Susteren is a qualified expert, and the Court:
found her testimony credible.

7

and Kootenai Tribes (CSKT). He has a Bachelor of Science degree in

10

Head ofthe Tribal Preservation Department and Chairman ofthe Climate Change

8

9

11

12

Environmental Science from Salish Kootenai College. Mr. Durglo has worked indifferent capacities for the CSKT for over three decades. In his current role as

Advisory Committee (CCAC), Mr. Durglo has worked extensively with tribal
elders and youth on climate related issues. He has been involved with the13

Itlstitute for Tribal Environmental Professionals' Climate Change Adaptation

16c�nsisting ofEPA tribal environmental directors in Montana, Wyoming,

14

15

17

18
19

20
21

22
23

24
25

Planning Workshop, and he served as the co-chair ofthe National Tribal Science

Council and the chair ofthe EPA Region 8 Tribal Operations Committee,

Colorado, Utah, and North and South Dakota. He has taught workshops andseminars on climate adaptation planning throughout North America. Mr. Durglo

is: a qualified expert and the Court found him informative and credible.

104. Children are uniquely vulnerable to the consequences of\climate change, which harms their physical and psychological health and safety,Iinterferes with family and cultural foundations and integrity, and causes
economic deprivations. [LB 473:12-24, 474:12-477:12; LVS 1177:5-8,

1�02:6-24, 1215:13-24, 1217:2-1222:11; MDJ 597:9-18, 600:23-604: 14,i609:23-610: 10; LB-9, LB-15, LB-16; LVS-11, LVS-25].
I

Findings of Fact, Conclusions of Law, and Order - page 28
CDV-2020-307

1

2
3

1 05 . Children are at a critical development stage in life, as theircapacities evolve, and their physiological and psychological maturity develops

more rapidly than at any other time in life. [LB 474:1 2-477: 12, 485 : 1 0-486: 1 ;4

LVS 1 1 77 : 1 0-2 1 , 1 2 1 3 :7-23, 1 2 1 5 : 13-24] .

6developed until around age 25. [LB 474: 1 8-25; LVS 1 2 1 3 :7- 1 6] .

8illness,
are a population sensitive to climate change because their bodies and
I

5

7
9

10
11

12

I
I

I 06. The brains and lungs of children and youth are not fully
1 07. All children, even those without pre-existing conditions or

minds are still developing. [LB 473 : 12-24, 474: 12-477: 12; LVS 1 1 77:2- 1 178: 12,
1 2 1 3 :7-23; LB-9; LVS-1 I ] .

I 0 8 . The physical and psychological harms are both acute andchronic and accrue from impacts to the climate such as heat waves, droughts,

13

4ildfires, air pollution, extreme weather events, the loss of wildlife, watching

15

498 : 1 2-25, 524: 1 1 -22; LVS 1 1 78 : 1 3 - 1 179:6, 1 1 96:6- 1 1 , 1 200:7-1201 :25,

17

122 1 : 1 9-2 1 ; MDJ 595 : 1 8-596:2, 597:6- 1 8, 600:23-604: 1 4, 606: 1 1 -607:2, 608: 1 -

14
16
18

19

20
21

glaciers melt, and the loss of familial and cultural practices and traditions. [LB
1 +02:6-24, 1 204:2 1 - 1205 : 19, 1 206: 1 9- 1209 : 1 2, 1 2 1 8 :2- 1 6, 1 2 1 9:25- 1 220: 1 1 ,
1 3, 609:23-6 1 0 : 1 0] .

1 09. Climate change can cause increased stress and distresswhich can impact physical health. [LB 526:8- 1 6; LVS 1 1 88 : 1 6-24; LVS-15].

22

D�. Van Susteren observed that Youth Plaintiffs testified to specific personalI
consequences.
For example:'

24

from a state she loves.

23

25

Ill//

a.

Grace feels fearful due to the glaciers disappearing

Findings of Fact, Con clus ions of Law, an d Order-page 29
CDV-2020-307

1

2

3
4
5

6

7
8

b.

Sariel has suffered significant distress due to theimpacts of climate change on culturally important plants, and snow for creation

stories. Her cultural connection to the land increases this impact.
C.

Mica has experienced a sense of loss from having tod.

Olivia expressed despair due to climate change.

stay inside due to wildfire smoke.
e.

Claire has been impacted by fear and loss fromglaciers melting, and anxiety over whether it is a safe world in which to have9

children.

11

stress. Increased heat and temperature negatively affect cognition and are linked

1012110. Heat waves are associated with significant psychologicalto increased incidence of aggression and exacerbation of pre-existing mental

13

health disorders. [LVS 1197:1-1198:7, 1200:7-12; LVS-29].

15

extreme heat. [LB-15, LB-16].

17

despair. [LVS 1200:24-1 201:25].

19

traumatic. Being surrounded by wildfires can make the world feel unsafe and the

14
16
18

111. Children have a higher risk of becoming ill or dying due to112. Drought is associated with anxiety, depression, and chronic
113. Wildfires, including those witnessed by Badge, are20

inability to breathe clean air creates anxiety. [LVS 1202:6-24, 1204:21-1205 :19].

22

harms, especially when there are no signs the future will be any different. [LVS

24

Ill//

21

23
25

114. The threat of loss can be enough to cause mental health1103:15-1204:6].

//IllFindings of Fact, Conclusions of Law, and Order - page 30
CDV-2020-307

1

2

3

4

115. As climate disruption transforms communities, somePlaintiffs are experiencing feelings that they are losing a place that is important tothem.

116. The IPCC has found, with very high confidence, that climate

5change has "detrimental impacts" on mental health and the harms to mental

8117. The 2021 report, Climate Change and Human Health in

6

7

9

health are expected to get worse. [LVS 1185:12-1186:3, 1192:23-1194:9, 1195:6-

13; Pl27; LVS-23, LVS-24].

N,lontana, found that "[t]he mental health impacts ofclimate change are profound10

and varied." [LVS-27]. Extreme weather events, prolonged heat and smoke, and13
14118. Exposure to extreme heat can cause heat rash, muscle
I
cramps, heatstroke, damage to liver and kidney, worsening allergies, worsening

17

change can result in a lifetime ofhardships for children. [LVS 1194:4-9,

11

12
15

16

environmental change can all impact mental health and increase feelings of

disconnectedness and despair. [LVS 1196:6-11; P3l; LVS-28].

asthma, and neurodevelopmental effects. [LB 485 :2-9; P3l; LB-13, LB-14].

119. The psychological harms caused by the impacts ofclimate

18

1210:2-1211:2, 1213:24-1215:4; P127; LVS-12].

21[LB 474:14-25, 475:4-10; LVS 1213:7-23; LB-9, LB-10; LVS-11].

19

20
22

23
24
25

:'

120. The physiological features ofchildren make themdisproportionately vulnerable to the impacts ofclimate change and air pollution.

121. Children have a higher basal metabolic rate, which makes it

harder for them to dissipate heat from their bodies. [LB 475:14-21].
!!?!!
/////

Findings of Fact, Conclusions of Law, and Order - page 3 1
CDV-2020-307

1

2

1 22. Children breathe in more air per unit of time than adults andconsume more food and water proportional to their body weight, making children

3

more susceptible to polluted or contaminated air, water, or food. [LB 476:2 1 -5

1 23 . Typical child behavior and physiology- which involves

4477: 1 2] .

6spending more time recreating outdoors and more difficulty self-regulating body8

and other climate change impacts. [LB 476:21 -477: 1 2, 48 1 :9- 1 9] .

10

can result in impaired physical and cognitive development with lifelong

12

leukemia, and asthma in children. [LB 482:9-2 1 , 502:4-22; LB-25; LVS

7
9

11

13

14

temperature- render children more susceptible to excess heat, poor air quality,

1 24. Childhood exposure to climate disruptions and air pollutionconsequences. Air pollution can trigger or worsen juvenile idiopathic arthritis,1205 :20- 1 206:8, 1207: 1 8- 1 208:3] .
125.

The air quality where Plaintiffs live has been negatively

15

impacted by smoke from wildfires contributed to by climate change.

17

anthropogenic climate change is extending the allergy season and exacerbating

19

and psychological health by interfering with sleep, play, school attendance, and1618

1 26. Allergies are increasingly prevalent among children andallergy symptoms. An increase in these symptoms can affect children's physical20

performance. [LB 484:25-485 :9, 508:2- 1 6; LVS-30] .

22

and frequency of asthma in children. Six million children in the U.S. ages 0- 1 7

21

23

24

25

1 27. Climate change is contributing to an increase in the severity

have asthma, which translates to approximately one in every twelve children.
[LB 485 :7-8, 503 : 1 - 1 4, 505 :4-25; LB-26, LB-30] .

/Ill/Findings of Fact, Conclusions of Law, and Order - page 32
CDV-2020-307

1128. Children who have pre-existing respiratory conditions,2

including asthma, are especially vulnerable to climate impacts, including

4

health of Plaintiffs Olivia, Jeffrey, and Nate, all who have pre-existing health6508:23-509: 1; LB-28].

8

to consider foregoing a family because they fear the world that their children

3
5

7

increasing air pollution and rising temperatures. Wildfire smoke has harmed theconditions, and other Plaintiffs, including Badge and Eva. [LB 505 : 12-506:20,
129. Plaintiffs Olivia and Grace are distressed by feeling forced

9

would grow up in. [LB 497:4-21; LVS 1214:21-1215:1, 1221:19-1222:5; GGS

11130. Plaintiffs Rikki, Kian, Claire, and Taleah, face economic

10
12

208:3-22].

deprivations, including barriers to keeping family wealth and property intact and13

decreased future economic opportunities.

15

including Kian, Georgi, Claire, and Grace. [LB 490:6-491 : 15 ; LB-18].

17

weather harms their ability to participate in cultural practices and access19

their place-based cultures and traditions. [LB 491:23-493:9; MDJ 579:19-580:9].

14

16
18

20

21

22
23
24

25

131. Extreme heat threatens the health of competitive athletes,
132. For indigenous youth, like Ruby, Lilian, and Sariel, extreme

traditional food sources, which is particularly harmful to indigenous youth with
133. Because of their unique vulnerabilities, their stages ofdevelopment as youth, and their average longevity on the planet in the future,

J;>laintiffs face lifelong hardships resulting from climate change. [LB 474:14-25,

t75:4-10; LVS 1177:2-1178:12, 1189:1-6,1194:4-9, 1 210:2-1211:2, 1213:7-23,
1215 :13-24].
I

Ill//

Findings of Fact, Conclusions of Law, and Order - page 33
CDV-2020-30712134. Youth are more vulnerable to the mental health impacts ofclimate change because younger people are more likely to be affected by the3cumulative toll of stress and have more adverse childhood experiences (ACEs).

5physical illness, as well as an increased risk of early death. [LB 521: 14-16,

4ACEs increase the likelihood of cumulative trauma that leads to mental and65236-15; LVS 1210:2-1211:2; LB-33; LVS-31].

8

cognitive impairments, and unhealthy risk behaviors. ACEs can also cause long­7

135. ACEs can cause prolonged fear, anxiety, and stress,

9

term health impacts including increased risk of obesity, diabetes, heart disease,11[LB 516:3-20, 519:16-520:4, 522:17-523:2; LB-34].

10

12

13

14
15

16

17

18

19

20
21

22

23

24
25

depression, strokes, chronic obstructive pulmonary disease, and broken bones.
136. Children born in 2020 will experience a two to sevenfold

increase in extreme events, particularly heatwaves, compared with people born in

1960. [LB 495 : 1-11, 497:1-3; P45; LB-20].

137. According to the IPCC, "Climate change is a threat tohuman well-being and planetary health (very high confidence)." The IPCC stated,''Without urgent, effective, and equitable mitigation and adaptation actions,climate change increasingly threatens ecosystems, biodiversity, and thelivelihoods, health and wellbeing of current and future generations (highconfidence)." [LB 530:11-533:9; LB-43, LB-44; Pl 43; SR-6 1].

138. The unrefuted testimony at trial established that climatechange is a critical threat to public health. [LB 536: 10-537:14].

139. Actions taken by the State to prevent further contributions to/dimate change will have significant health benefits to Plaintiffs. [LB 534:25535:9].

I

Findings of Fact, Conclusions of Law, and Order - page 34
CDV-2020-307

1

2

3

IV.

CLIMATE CHANGE IS ALREADY ADVERSELY AFFECTINGMONTANA'S NATURAL ENVIRONMENT.

140. Anthropogenic climate change is impacting, degrading, and4depleting Montana's environment and natural resources, including through6

aridification, increasing extreme weather events, increasing severity and intensity

5

7
8

9

10

11
12

increasing temperatures, changing precipitation patterns, increasing droughts andof wildfires, and increasing glacial melt and loss. [JS 655:2-658:10, 659:6660:11; see generally SR, CW, DF; CW-56; DF-20].

141. Climate change impacts result in hardship to every sector ofMontana's economy, including recreation, agriculture, and tourism. For example,
private water supplies will be harmed. [SR 144:13-145: 17; CW-52].

142. Montana has already warmed significantly more than the13

global average. [CW 263: 12-17, 263:20-264:7; CW-18, CW-19].

15

increasing mean annual temperatures since 1950. Winter and spring have warmed

14

143. All parts of Montana have seen a long-term trend of16

the most [CW 267:18-268:20; CW-21; P6].

18

Montana are due to rising GHG concentrations, primarily CO2 • [SR 103:5-9,

17144. There is a scientific consensus that rising temperatures in

19

117:25-118: 12; cw 269:18-25].

21

continue decreasing with warmer temperatures, as a long-term trend caused by

20

22
23
24
25

145. Montana's snowpack has been decreasing and is likely to

i_mpacts to the climate. [CW 283:11-19; CW-33, CW-35, CW-55; DF 421 :12-23].

fill
Ill//

Ill//

Findings of Fact, Conclusions of Law, and Orde r - page 35
CDV-2020-30712146. Montana's April 1, Snow Water Equivalent, which is an

important metric for how much water will be available during the dry summer

3months in Montana, has been declining since the 1930s. [CW 284:23-286:15;

5147. The decline in snowpack is directly attributed to elevated4

CW-34].

6

temperatures due to high levels of GHG emissions. [CW 283: 1 1 - 1 9, 288:3-10].

8

precipitation falling as rain instead of snow, particularly in western Montana.

7
9148. Warming temperatures in Montana are resulting in more

This results in reduced snowpack and shorter snowpack runoff duration in the10spring and summer. Warming temperatures and rapid snowmelt and rain-on­

12

291:17-292:20].

11

13
14

snow events have been a major cause of spring flooding in Montana. [CW149. Extreme spring flooding events are consistent with climatechange, including more spring precipitation, which can cause flash flooding

15

when rain falls on snow. [SR 144:24-145:8; SR-44]. Spring flooding is expected17150. The 2018 Shields River flooding and the 2022 Yellowstone

16

18
19

20

21

22

23

24
25

to increase in frequency with increased climate change. [CW 291:15-292:20].

River flooding event are examples of rain on snow and heavy precipitation events
that will be more frequent with climate change. [CW 29 1:15-292:20].

15 1. Dr. Dan Fagre holds a Ph.D. from the University ofCalifornia, Davis. He joined the National Park Service as a research scientist in

1989 and, in 1991, he became the Climate Change Research Coordinator at

Glacier National Park as part of the nationwide United States Global Change

Research Program. His position was transferred to the United States Geological

Survey (USGS), where he served until his retirement in 2020, after which he has
I

I

Findings of Fact, Conclusions of Law, and Order - p age 36
CDV-2020-307

1continued as Scientist Emeritus. At Glacier National Park, Dr. Fagre helped2develop a national climate change research program within the National Park

4

Alaska. He built a research program centered on Glacier Park as a representative3

Service, coordinating with other scientists at national parks from Florida to5

mountain ecosystem, engaging faculty and scientists from Montana universities

7

testimony was informative and credible.

9

economy and a source of fresh water for countless communities. [Def. Answer,

68

and across the U.S. [P l 90]. Dr. Fagre is a well-qualified expert, and his152. Glacier National Park is a major driver of the regional

10Doc. 54 , 159; DF 404:10-406:10, 407:1-3, 408: 11-25, 426:2-17; DF-13].

12

the U.S. Geological Survey climate change research because they are excellent

14

ecosystem, glaciers respond only to climatic forces that affect summer

11
13

153. The glaciers in Glacier National Park were an early focus ofindicators of impacts to the climate. Located above the rest of the mountain15

temperatures that melt ice and snow and winter snow accumulation (i.e.,

17154. Of the approximately 146 glaciers present in Glacier16
18

snowpack). [DF 394: 15-396:1, 396:25-397:17].

National Park in 1850, only twenty-six glaciers larger than twenty-five acres

19

remained in 2015. 82% of Glacier Park's glaciers are gone and there has been a21155. Since 1900, glaciers in Glacier Park lost 66% of their area,

20

22

23

24
25

70% loss of area of all glaciers. [DF 418: 1-8, 422:25-424:4; DF-17, DF-20].

making Montana the largest region for glacier loss in the U.S. lower forty-eight.
itgassiz Glacier, Grinnell Glacier, Jackson Glacier, Sperry Glacier, and
/!Ill
Ill//

Findings of Fact, Conclusions of Law, and Order - page 37
CDV-2020-307

1Thunderbird Glacier have all experienced significant retreat. [DF 409:9-23,

3

DF-20, DF-21].

2

4

410:23-415 :5, 412:13-21, 415 :12-416:20; P61-P64; DF-8, DF-15, DF-16, DF-18,
156. The scientific consensus is that the retreat of Glacier Park's

5glaciers over the past century is due to human GHG emissions (mainly CO2 from7

428:13-24].

9response to modem, human-caused warming of the region, [DF 428:13-24].

11

if fossil fuel emissions continue to rise, [DF 425 :9-23].

13

rater sources of many communities, stream and river hydrology, local
economies, and the recreational opportunities of several Plaintiffs because they+ill be denied access to natural resources enjoyed by previous generations of

6
8

10
12

14
15

16

17

fossil fuel burning). [DF 409:24-410:1,9 , 416:21-417:15, 422:8-19, 424:5-11,
157. The cmTent ice retreat of Glacier Park's glaciers is in

158. Computer models project the loss of Glacier Park's glaciers

159. The loss of Glacier National Park's glaciers will affect the

fontanans. [DF 404:10-406: 10, 407:1-3, 408:11-25, 426:2-17; DF-13].
160. If GHG emissions are reduced glaciers would slow their18

iµelting, eventually stabilize, and then begin to grow again. [DF 428: 1-12].

20

and lakes that are routinely well below normal levels in summer and fall months

19

21

22
23

24

25

161. Climate change results in water levels in Montana's rivers

�nd water temperatures that are well above historical levels. [JS 686:18-687:4,
690:7-17, 692:22-25, 693:2-7; JS-25].

162. Dr. Jack Stanford received his Ph.D. in Freshwater Ecology/
at the University of Utah. [JS-2]. He is Professor Emeritus at the Flathead Lake];3iologica! Station (FLBS) of the University of Montana. He was the Director andFindings of Fact, Conclusions of Law, and Order- page 38
CDV-2020-307

1

2

3

4

5

6

7

8

Bierman Professor ofEcology at the University ofMontana (1980-2016). His

primary area ofresearch is aquatic ecosystem processes, including influences ofhuman activities. He has published over 220 scientific papers and books onaquatic ecosystem processes, including influences ofhuman activities. [P194].
Dr. Stanford is a well-qualified expert, and his testimony was informative andcredible.

163. Montana is part ofthe northern Rocky Mountain region. The

northern Rocky Mountains are a headwaters region, including for the Missouri

9River system to the East and the Columbia River System to the West, where most

12

drains from the Rocky Mountains feeds three ofthe great rivers ofNorth

10

11
13

14

15
16

I

ofthe water originates as snow. [Def. Answer, Doc. 54 157].

,r

164. Montana is a key "water tower" ofthe Continent. Water that,i\merica: the Columbia, the Saskatchewan, and the Missouri-Mississippi. Snowat high elevations provides eighty-five percent ofthe fresh water that people use

inMontana. [DF 405:22-406:10, 407:16-409:1; DF-13; JS 656:21-657:7].
!

165. The accumulation ofwinter snowpack in the mountains

17

naturally acts as a reservoir for the hotter, drier months, gradually melting with20

152:2-18]. Some accumulations are held in mountain glaciers which add

18

19
21

22
23

24
25

hnset ofspring, and in summer providing continuous flow downstream, which is

critical in the period ofless precipitation and warmer temperatures. [SRmeltwaters to the flow paths. [DF 407:16-409:1; DF-13].

166. Precipitation also is retained in lakes and wetlands where aIlarge share ofrunoff penetrates into the ground, feeding aquifers that store water

br augment river and stream flows. [JS 655:20-24, 657: 13-17,660:
12-661 :7; JS-4].
!

Findings of Fact, Conclusions of Law, and Order - page 39
CDV-2020-3071167. Montana's river and lake ecosystems are interconnected2with each other and with aquatic and terrestrial ecosystems beyond Montana's

4

ecosystems includes being connected with groundwater and atmospheric waters.

3
5

6

borders. [JS 646:2-647:2]. The interconnectivity of Montana's river and lake
[JS 66 1:8-12; JS-4, JS-8, JS-9; P82].

168. The rivers of Montana are interlinked and their flows and7

the quantity of materials (e.g., sediments) that they naturally transport are now,9

Snow. These river networks transport and deliver the water and materials that

8

10

11

12

13

14
15

16

without functioning glaciers, increasingly dependent on seasonal rain and�ustain the natural and cultural (human) elements of Montana's ecosystems.
JS-4; DF-19].
[JS' 661:8-664:18, 646:2-647:2;

169. Montana's water resources are critically important to Youth

Plaintiffs and all Montana citizens and to many people beyond the State's

borders. Montanans must have a dependable supply of clean freshwater. [JSI

659:6-19; JS-25].
I

170. Anthropogenic climate change is disrupting the natural

17

range of variation in the flow paths of Montana's river systems. Compared to the19�pproximately 20% and stream temperatures have increased between 1-2°C.

18

20

21

22

23

24

25

1960s, the summer streamflow in Montana's rivers has decreased byI[JS 666:15-667:20; JS-10, JS-25].

171. As a result of anthropogenic climate change:''a.

Surface temperatures in Flathead Lake are too warm

for bull and cutthroat trout to sustain their historic populations. [JS 687:5-14].

!(Ill
I

//Ill

Findings of Fact, Conclusions of Law, and Order- page 40
CDV-2020-307

1

2
3
4
5

6

7

b.

The Flathead River is experiencing low streamflow

and a decline in cutthroat trout populations due to warm temperatures and low

water. Bull trout populations have also declined in Flathead Lake. [JS 687:5-14].
C.

The Missouri River is experiencing discharge

declines, and increase in stream temperatures, fishing restrictions, and algae

blooms. [JS 687 : 15-688:25].

8d.
The Clark Fork River is experiencing low streamflow
Iand discharge declines. [CW 292:21-293:18; CW-42].

10

declines, low streamflow, increasing temperatures, fish die offs due to diseases,

9

11

e.

The Yellowstone River is experiencing discharge

14

record-setting floods, a decline in brown trout populations, and algae blooms. [JSI
676:4-25, 689:9-690:1].
I
f.
The Powder River is experiencing low streamflow andI
a' decline in water quality. [JS 690:7-17].

16

temperatures, declining discharge, fishing closures, a decline in brown trout

12

13

15

g.

The Madison River is experiencing increased

17

Jopulations, algae blooms, fish die offs and river closures. [JS 692:2-10].

19discharge, increased temperatures, and river closures. [JS 692:22-25].

18

20

21

22
23

24
25

h.

The Blackfoot River is experiencing decliningi.
The Smith River is experiencing record low flows inI�une, increased temperatures, and fishing restrictions. [JS 693 :2-7].
j.

I
closures. [JS 693 :9-10].
I
/Ill/
I
//Ill
I

The Shields River is experiencing low flows and river

Findings of Fact, Conclusions of Law, and Order - page 4 1
CDV-2020-307

1

2

3

k.

The Bitterroot River has experienced increased

temperatures, a reduction in bull trout habitat, algae blooms, and fishing closures.

4[JS 693: 12-22].
I
172. One impact ofanthropogenic climate change to Montana's

7

reduced reflection than would occur ifthe snowpack was sustained. [JS 670:20-

10

create harmful conditions for fish and other aquatic organisms. [JS 671 :3-17].

5

6

8
9

11

aquatic ecosystems is that runoff (spring spate) from snowmelt is days to weeks

earlier. Loss ofsnowpack also accelerates warming and water loss owing to671:2].

173. Low water levels and abn01mally warm water temperatures

174. Access to boating and fishing on certain rivers and lakes in

12Montana has been limited, and in some instance completely foreclosed, because

15

recreation. [SR 152:25-153:9, 153:10-13; JS 679:7-15].

13

14

16

oflow river flows or high-water temperatures. These changes limit the ability ofsome Plaintiffs to fish and access the State's rivers and lakes for sport or

175. Wildfires resulting from climate change have caused

17

nitrogen levels in Montana's lakes to increase. This has caused nutrient

20

will further harm Montana's wildlife and fisheries, and the ability ofPlaintiffs to

18

19

21

22

23

24

25

i�balances that threaten the plant and animal life in the lakes. [JS 683 : 1 -684:4].
176. If GHG emissions continue to rise, impacts to the climateI

hunt and fish. [JS 679:7-15; 687:8-14].

177. The western United States, including Montana, haseJperienced a trend ofincreased drought and heat stress from climate change,
I
II///

11/11

F i ndings of Fact, Conclusions of Law, and Order - page 42
CDV-2020-307

1which has killed trees and altered ecosystem dynamics, and this trend toward2

hotter and drier summers will continue in the future. [SR 106:1-18, 146:18-21,

5which negatively affects stream systems: aquifer systems become depleted due to

3

4
6

7

8

9

156:2-17; CW 258:24-259:8, 283:3-10; CW-44].

178. Droughts in Montana are more expansive and longer term

reduced infiltration ofstreamflow and rainfall. Where aquifers contributesignificantly to base flow maintenance in Montana streams, the outcome is evenmore extreme and with sustained drying. [JS 677:7-678:1].

179. Anthropogenic climate change is producing a shift from10

snow to rain earlier in the year, and flooding from intense but extreme, short­13

network. [JS 676: 12-25].

16

tKe composition, structure, and biogeography offorests in Montana. [SR 106:

11
12
14

15

17

18

19

20
21

22

23

24

25

duration flooding is more commonly occurring today than in the past (especiallyin the spring). That ultimately means less water is retained in the drainage180. Increases in the frequency, duration, and/or severity of

d1'ought and heat stress associated with climate change are fundamentally altering

1-14]. There is already evidence ofaccelerating forest mortality in westernforests, and this acceleration is clearly tied to increasing temperatures and plantwater stress. [SR 156:2-17, 163:9-164:2].

181. Montana's forests are being drastically altered due to thec�mbination ofdrought, pest infestations, and wildfires. [SR 156: 12-157: 15].
182. Climate scientists have long known that increasing

temperatures intensify drought conditions, and the combination ofdrier andhJtter weather leads to larger, more frequent, and severe wildfires. [SR 106: 1-14,

1 �7:2-158:6].

Findings of Fact, Conclu sions of Law, and Or der-page 43
CDV-2020-3071183. The wildfire season in Montana is two months longer than it2

was in 1980s. (SR 159:7-13]. The lengthening ofthe fire season is largely due to5fµel moisture-which are all due to increasing GHG emissions. [SR 106: 1-14,

3

4

declining mountain snowpack, earlier spring snowmelt, decreased summer

precipitation, and warmer summer temperatures leading to deficits in soil andI

6

156:24-157:13, 159:18-160:6, 160:22-24; SR-54; CW 305:3-24; CW-47].

9

the ten years with the largest acreage burned, all have occurred since 2004,

7

8

10

184. The extent ofarea burned in the U.S. each year has

increasedsince the 1980s. According to National Interagency Fire Center data, of'

including the peak year of2021. This period coincides with many ofthe warmest

11y�ars on record nationwide. (SR 158:4-11; SR-52].

14[�R 106:1-24; CW 306:11-307:11; CW-49].

12
13

15
16

17

18

19

20
21

22
23
24
25

185. Wildfires in Montana are expected to become significantly"'.Orse in the coming years without immediate steps to reduce GHG emissions.
j186. The effects ofanthropogenic climate change, includingiri�ing temperatures, changing precipitation patterns, and drought conditions,create challenges and uncertainty for farmers. [CW 312:2-313: 15].

187. Climate change affects wildlife, and some species will be\
more sensitive to impacts to the climate than others. Species may adapt, move, orgo extinct. For example, the American pika and Snowshoe hares are consideredhighly sensitive to climate change due in large part to their dependence onIs4balpine habitat and snow cover, which is also projected to decline. [SR-59;
I
P72; DF 406:1 1 -15]. Dependence on climate-sensitive habitats like seasonal

I

!!�//

11)/1

Findings of Fact, Conclusions of Law, and Order - page 44
CDV!2020-307

1streams, wetlands and vernal pools, seeps and springs, alpine and subalpine

3

1 64:5-1 6, 1 65 :6- 1 66 :6].

2
4
5

snowfield areas, grasslands and balds, is a large driver of species sensitivity. [SR
1 88. Rising temperatures will increase the number of freeze-freedays in Montana and increase in the number of days above 90°F. [CW 273 :6-20,

6275 : 1 8-276:7; P6; CW-24, CW-27].

8

precipitation,with more precipitation falling in the spring and fall and less in the'7

1 89. There will be increasing seasonal variation in Montana's

9

winter and summer. The change in precipitation timing and a decrease in

11

tJmperatures, will contribute to increasing risk of summer drought conditions in

10

12
13

14

p�ecipitation during the summer months, combined with increasing summer

parts of Montana and more precipitation falling as rain as opposed to snow. [CW281' :4-2 1 ; CW-30, CW-35; P6, P34].

1 90. Increasing temperature will offset small increases in

15

ptecipitation by increasing rates of evaporation and transpiration and will make17

3-1 OJ.

16
18

l�te-summer and fall droughts highly likely and increasingly severe. [CW 283 :1 9 1 . The current decline in Montana snowpack and snow

19

accumulation is projected to continue. The loss of snowpack and snow

21

adthropogenic GHG emissions. [CW 283 : 1 1 - 19, 284:23-285 :2 1 , 286:9- 1 5,

23

/!Ill
!Ill/
Ill//

20
22
24
25

accumulation is primarily driven by increasing temperatures, which are caused by

287 : 15-288: 1 0, 290:20-29 1 :9; CW-35].

Findings of Fact, Conclu sions of La w, and Order-page 45
CDV-2020-307

1

2
3

192. Spring runoff in Montana is projected to increase throughthe 2l5t century because ofwarmer temperatures and earlier snowmelt. Increased

J1nuary-April runoff will lead to increasingly low streamflow in July-September.

4[CW 293:8-18].

7

due to anthropogenic climate change. [SR 105:9-21, 149:15-150:7]. The

5

6

8

193. The science is clear that there are catastrophic harms to thenatural environment ofMontana and Plaintiffs and future generations ofthe Stated�gradation to Montana's environment, and the resulting harm to Plaintiffs, willI

9worsen ifthe State continues ignoring GHG emissions and climate change. [SR

12

'!·

15

and climate change pursuant to the MEPA Limitation.

10

11
13

14

16

17

18

19
20

21
22
23

24

25

I

I

105:22-106:18, 137:10-15, 168:17-169:7, 169:19-21; cw 318:2-5, 316:17-317-

14; DF 428:6-12; JS 712:8-12].

CLIMATE CHANGE IS ALREADY HARMING PLAINTIFFS.
194. The unrefuted testimony established that Plaintiffs havebeen and will continue to be harmed by the State' s disregard of GHG pollution

195. Plaintiff Rikki Held lives on her family's ranch twenty miles

01,1tside ofBroadus, Montana. Broadus is a ranching community in SoutheasternIl\iontana, with a population ofapproximately 450 people in the town andaJproximately 2000 in Powder River County.

a.

Rikki has experienced climate change-related harms

to herselfand her family ranch, including harms from flooding, severe storms,

wildfires, and drought.

The Powder River runs through Rikki's ranch. The

ranch includes five pivot fields and pine-covered hills. Rikki and her family have!
raised cattle on the ranch, grew crops to feed cattle, and owned horses.
b.

Findings of Fact, Conclusions of Law, and Order - page 46
CDV-2020-307

1

2

3

4

5

6

7

Rikki started riding horses and herding livestock whensjle was four. Rikki grew up involved in ranching activities, working withC.

livestock, haying, and fixing fences.
Ig�ew up in Broadus.
I'

d.

e.

Rikki's grandparents are from Broadus and her dad

Rikki and her family run a motel that rents rooms tot\avelers. Rikki often works for the family motel business. The primary source of

8

Rlikki's family's income is the ranch (currently leased) and motel business. Loss11hbme, family, community, income, and way oflife.

9

10

12
13

ofthis income affects Rikki personally.
f.

Impacts to the climate are already harming Rikki'sg.

Rikki was often required to work outside on the ranchh.

In 2012, the Ash Creek fire burned seventy miles of

14

rJgardless ofthe temperatures or air quality. Rikki's physical well-being has beenIh�rmed by wildfires and wildfire smoke, as well as extreme heat.

17

Electricity is required to access water for both cattle and Rikki's house on the20ranch in recent years, with snow typically not lasting through the winter.

15
16
18

19

j

power
poles, causing the loss ofelectricity on Rikki's ranch for a month.
Idnch, so the loss ofelectricity harmed both cattle and Rikki.
!

Climate change has impacted the snowpack on the21R�duced winter snowpack means less natural water available for cattle. As a

24

!IHI

22
23

25

result, the cattle must rely on water tanks, which are far apart and expensive to!
install. With less water, there is also less grass available for the cattle to eat.
I
I

I

I

I/Ill

Findings of Fact, Conclusions of Law, and Order- page 47
CDV-2020-307

1

2
3

4

5

6

7

8

With less water and grasses, cattle travel further forwater and food, and lose weight. This means the cattle are not as valuable and theJ-

r1nch profits and income declined.
k.

Wildfires have closed roads around Broadus limiting

I.

Climate change has caused increased variability inthe number ofpeople that can reach Rikki's family motel business, causing lost
income for Rikki and her family.

water levels in the Powder River. Rikki's family relies on the river to water their

9

livestock. Increasingly, the river levels are extremely low while at other times the12

riverbank on Rikki's ranch, undercutting a fifty-year-old fence. Since then,

10

11

river floods.

m.

In 201 7, the Powder River flooded and eroded the13continued flooding has eroded about fifty feet ofriverbank, with floodwaters that

16

Ichange impacts her well-being, the well-being ofher family, and the well-being

14
15

17

nearly reach Rikki's home.
n.

Rikki experiences stress and despair from how climate

ofother Montanans. Montana is Rikki's home and seeing how climate change is

18

impacting Montana and her family ranch is a heavy emotional burden for Rikki.

20

opportunities.

19

21

22
23

24

25

Rikki faces economic harm, including barriers to

keeping family wealth and property intact and decreased future economic
0.

196. Plaintiffs Lander Busse and Badge B. are brothers, living in

Kalispell, Montana.

Ill//
I

''

a.

Lander and Badge enjoy hunting and fishing.

Findings of Fact, Conclusions of Law, and Order - page 48
CDV-2020-307

1

2

3

b.

Lander and Badge hunt with their parents andgrandparents. Hunting is an important family activity.

Lander and Badge's ability to hunt and fish is

4

inhibited due to climate change consequences, including extreme heat and7

Badge's ability to fish by rendering certain waterways impassible by raft due to

5

6

8

9

10

11

C.

wildfires.

d.

Climate change has adversely impacted Lander andlow instream levels or too-warm water temperatures, which harm fish anddecrease their populations.
e.

Lander and Badge have had their ability to fish

liinited or foreclosed due to fishery closures as a result ofclimate change-induced

12

conditions in Montana's rivers. Lander and Badge have also had their access to15

made hunting unbearable and impossible for Lander and Badge. Smoky

18

Kalispell, and in other parts ofMontana where Badge recreates, makes it difficult

13
14

16

17
19

20
21

22

23

24

25

rivers limited for other recreational activities.
f.

The extreme temperatures and smoke have at timesg.

Due to climate change, the wildfire smoke inconditions have also impacted their fishing activities.
I

for Badge to breathe and triggers a cough, which negatively impacts his healthand well-being.

In 2018, a wildfire near the Busse' s home forced theirfamily to prepare to evacuate. Preparing to evacuate was a traumatic experienceh.

fo,r Lander and Badge. Badge is worried that wildfires will continue to threaten

his home.

Ill//

Findings of Fact, Conclusions of Law, and Order - page 49
CDV-2020-307

1

2
3

4
5

6

I.

Lander has seasonal pollen allergies, which areworsening due to the increased pollen count and a changing climate.

Lander is an accomplished musician and theaterJ.
performer and often performs outdoors. Climate change and wildfires have
hampered his ability to perform music and theater at a high level and have7

negatively
impacted his physical well-being.
'k.
Badge is named after the Badger-Two Medicine, an

9�edicine have destroyed trees and have degraded areas important to Badge and11

ihipact on Badge. Badge experiences a sense of loss and distress knowing that the13part of him were lost in the Badger Two-Medicine fire.

15

lbng as he can remember. Climate change is reducing Badge's ability to

8

10
12
14

Jea where he frequently recreates and fishes. Wildfires in the Badger-Two

Jhere he enjoys visiting and recreating, which has had a powerful emotional

area is being damaged and degraded due to climate change. Badge feels as if aI.

Badge is passionate about skiing and has skied for as

16

rlarticipate in this important recreational activity.

18

he, and his potential children, will inherit.

20

Montana's environment, which is an integral part of their family traditions,

22

Montana is traumatic for both Lander and Badge.

17
19

21

23

24

25

m.

Badge is anxious when he thinks about the future thatn.

Lander and Badge care deeply about protecting

culture, and identity. Witnessing the current impacts of climate change inthe land in Montana.

0.

Lander and Badge are experiencing the loss of ties to

I/Ill

Findings of Fact, Conclusions of Law, and Order - page 50
CDV-2020-3071197. Plaintiff Sariel Sandoval is a member of the Confederated

2

Salish and Kootenai Tribes and is from Ronan, Montana.

4

natural world, and have a unique connection to the land, the natural environment,

3a.

Sariel and her family have a deep connection to the5and the seasons. Climate change is harming Sariel's culture and tribal practices.

7

school, Sariel was taught her native language and learned about the Salish

6

Sariel went to a Salish language immersion school called Nkwusm in Arlee. At

8culture.

10

means "Person Who Brings the Cedar." Cedar has important cultural significanceI
because it provides a connection through the land to the Creator.

9

11
12

13

14
15

b.

C.

Sariel was excited to receive her Salish name, which

Sariel feels a strong sense of connection to hercommunity. She believes that carrying on her community's traditions isimportant because it is their way of life and reflects their connection to the land.
d.

Gathering and using sweet grass and bear root ise.

Sariel is concerned about how climate change affects

16

important to Sariel culturally and spiritually.

18

the seasons because her culture is very ingrained with the land and the seasons. It

17
19

also affects plants and foods her tribe needs to survive, and she is concerned that21snowmelt and the consequent drying of mountain streams as a result of climate

23

more difficult for tribe members to gather.

20

22

24
25

these changes will change the community itself. Because of earlier-than-normalchange, plants used in Salish and Kootenai medicines are becoming scarcer andf.

Coyote Stories are a culturally important type ofCreation Story that can only be told when there is snow on the ground. Sariel is

Findings ofFact, Conclusions of Law, and Order - page 5 1
CDV-2020-307

1

2

3

4
5

6

7
8

concerned because the snow is not staying on the ground as long, and she does

not know what will happen to the stories when there is no more snow.

Climate change impacts Sariel's ability to partake ing.
cultural and spiritual activities and traditions, which are central to her individual

dignity. Climate change has disrupted tribal spiritual practices and longstanding

rhythms of tribal life by changing the timing of natural events like bird
migrations.

h.

Sariel worked at Blue Bay Campground the summer

9

after she graduated high school. Sariel lost a few weeks of work and income due

11

The fire also led to the road being shut down, homes being lost, and people being

10

12
13

14

15

16
17
18

19

20

to the nearby Finley Point fire (also known as the Boulder 2700 Fire) in 2021.

evacuated.

1.

Sariel is often unable to see the mountains near herhome due to wildfire smoke.
J.

Berry picking is a staple cultural activity for Sariel

and her family. Some huckleberry bushes are not producing fruit because ofdrought and Sariel must travel higher up into the mountains to find healthy
huckleberries.

k.

Climate change has a profound emotional impact onSariel, who experiences stress and despair about the impacts her community is

21

facing due to climate change.

23

Montana was almost at the point of no return with respect to climate change.

25

Bigfork,
Montana.
I

22
24

I.

Sariel was greatly distressed when she learned that

198. PlaintiffKian Tanner lives on his family's property in

Findings of Fact, Conclusions of Law, and Order- page 52
CDV-2020-307

1

2

a.

b.

Kian's property has been degraded by wildfire smoke.
Kian is a passionate fly fisher and has fished with his

3

dad since he was about four years old. Kian hopes he will be able to preserve this6

and declining instream flows due to climate disruption are harming Montana's

4

5

7

8

9

10

11
12

tradition and fish for the next fifty years or more.
C.

The warmer water temperatures, lower oxygen levels,

rivers and fish. These climate impacts have decreased fishing opportunities for

Kian as he has had to cancel fishing trips due to wildfires. Not being able to fish
is devastating for Kian.
d.

Kian lives near and enjoys visiting and recreating in

Glacier National Park, which is a very special place for Kian. He is distressed hewill never be able to see the natural glaciers as they have historically existed, and13

as other generations experienced them.

16

skis on his family's property. Impacts to the climate have reduced his

14
15

17
18

19

20
21

22

23

24

25

e.

Kian enjoys downhill and cross-country skiing, which

is an activity he does with his mom, who taught him to ski. Kian cross-county
opportunities to downhill and cross-country ski.
f.

Increased smoke in the summer has harmed Kian's

ability to play soccer, fish, and otherwise recreate outside, activities which are

crucial for his emotional health and foundational to his family. Kian's soccer

practices have been cancelled due to heat and wildfire smoke.
g.

The smoke often forces Kian to seek refuge indoors,lhich makes him feel very claustrophobic.
I/Ill

I/Ill

Findings of Fact, Conclusions of Law, and Order - page 53
CDV-2020-307

1h.

Kian's fears about impacts to the climate take an

2emotional toll on him and he feels a heavy burden to carry the mantel ofthe

5Montana.

8

admires because ofher work to protect Montana's environment. Renne was a

3

4
6

7

9

10

11

generation that must address climate change.

199. Plaintiff Georgianna Fischer ( Georgi) is from Bozeman,a.

Georgi's family has lived in Montana for generations.

Goergi's great grandmother, Mary "Polly" Wisner Renne, is someone that Georgi

key figure in establishing protections for the Lee MetcalfWilderness Area.
b.

Georgi is a competitive Nordic skier. She hascompeted on the national level, including Junior National Championships, U.S.

12

National Championships, and the 2021 NCAA competition. She trains eleven15

winter snowpack has inhibited Georgi's ability to complete necessary and

13

14
16

17

18
19

20
21

months ofthe year, six days a week. Georgi's ability to compete and participate
in Nordic skiing has been directly impacted by climate disruption. Declining

appropriate training and hinders her ability to continue to compete at a high level,

which adversely impacts her health and mental well-being.

In recent years there has not been enough snow togroom trails or create tracks in the snow to Nordic ski race until January,C.

although historically tracks were created in November.
d.

Georgi's summer Nordic skiing training has been

22

impacted by wildfires and wildfire smoke. Practices have been cancelled or25

elposure to heavy wildfire smoke while training has on her health and respiratory

23

24

clrtailed due to smoke and the smoke prevents Georgi from training at a highiltensity. Georgi is increasingly worried about the long-term effects that theI

Findings of Fact, Conclusions of Law, and Order- page 54
CDV-2020-307

1

2
3

4

system. Extreme heat also harms Georgi and her ability to recreate and train

outdoors. The heat has caused her to feel dizzy, nauseous, generally unwell, andhas caused persistent nosebleeds that led Georgi to seek medical attention.
e.

Georgi enjoys paddleboarding, rafting, backpacking,5hiking, and other outdoor activities. Georgi's recreation on Montana's rivers has

7have had to cancel river rafting trips, including one on the Smith River, due to

6
8

9

10

11

12
13

been impaired due to low water levels and stream flows. Georgi and her family
low stream flow.

f.

Georgi experiences feelings of despair andhopelessness because of the declining winter snowpack and what that trend
entails for her snow-based sport.

200. Kathryn Gibson-Snyder (Grace) is from Missoula, Montana.
a.

Grace's recreation on Montana's rivers and streams

14

has been affected due to both low water levels and flooding conditions. Because

16

activities has been increasingly impaired, limiting her ability to enjoy activities

15

17
18

19

20
21

22

23

24
25

of climate change, Grace's access to the Clark Fork River for recreational
important to her health and family.
b.

Grace enjoys many outdoor activities, including long-C.

Grace has been harmed by wildfire smoke anddistance biking, hiking, soccer, and kayaking.

extreme heat; which have adversely impacted her ability to play competitive

soccer. Smoke and heat have led to fewer soccer practices and the cancellation ofgames. Wildfires have impacted Grace's ability to go outside, enjoy outdoor
�ctivities, and have placed her safety, health, and well-being at risk.

Ir!/
Findings of Fact, Conclusions of Law, and Order - page 55
CDV-2020-307

1d.

One of Grace's environmental community educatione.

Grace has had hiking activities impacted by wildfiref.

Grace experiences psychological harms, is distressed2

events was cancelled due to wildfire smoke.

4

smoke.

6from day-to-day climate conditions, and is anxious about climate change. It is

8

National Park's glaciers, will not exist as they have in the past, or at all, when she

35

7

devastating for Grace to think that Montana's special landscapes, like Glacier9

is older.

11

Montana, she questions whether she can morally bring children into the world,

13

in if climate change is not ameliorated.

10

12

14
15

g.

Even though Grace would like to raise children inbecause of her knowledge and fear of the world that her children would grow up
201. Plaintiff Olivia Vesovich is from Missoula, Montana.
a.

Olivia has exercise-induced asthma and is therefore

16

particularly vulnerable to smoke-filled air. In smoky conditions, Olivia feels she

18

conditions, Olivia is forced to stay inside and reduce or eliminate the outdoor

20Montana due to the smoke-filled air and her asthma.

22

force her to stay indoors and prevent her from engaging in the recreational24

Jan cause eye pain for weeks at a time. Olivia's allergies have become.
I• 1y worse m recent years.
progressive

17
19
21

23
25

is suffocating if she spends more than thirty minutes outdoors. During smoky

activities she enjoys. Olivia has been forced to spend recent summers away from1b.

Olivia suffers from spring pollen allergies, which

dctivities she enjoys. Olivia's spring allergies cause her eyes to swell shut andI

Findings of Fact, Conclusions of Law, and Order- page 56
CDV-2020-307

12

Olivia is affected emotionally and psychologically byclimate change, and experiences bouts ofdepression when she thinks about theC.

3dire projections ofthe future. Olivia would like to have children ofher own, but

6d.
Olivia experiences psychological harms and is!
distressed from day-to-day climate conditions and is anxious about climate

4

5

7

she questions whether this is an option in a world devastated by the effects ofclimate change.
:

8change. There are days when Olivia feels paralyzed by the impacts and threats of11

�n her chest and it feels like a crushing weight. This climate anxiety makes it

910

climate change and she fears that it is too late to address climate change.
e.

For Olivia, climate anxiety is like an elephant sitting

12

Hard for her to breathe.

15

lier ability to earn money is hanned by climate disruption, which is decreasing

18

shift, and without pay, because ofinsufficient snow. Claire relies on her income

21I
she loves to hike. Seeing the loss ofglaciers in Glacier National Park is terrifying
I

13
14
16

17

19
20

22

23

24

25

202. Plaintiff Claire Vlases is from Bozeman, Montana.
a.

Claire works as a ski instructor at Big Sky Resort, andJiontana's winter snowpack and the number ofdays Claire can work. Claire has
been sent home from her job as a ski instructor without working her scheduled
as a ski instructor, so the lost income is a financial hardship for her.
b.

Claire regularly visits Glacier National Park where

for Claire and reduces her enjoyment ofthe park. Claire's ability to enjoy hiking

ih Glacier National Park has also been diminished due to increasing wildfire

sboke, which obstructs the beautiful views and is harmful to her health.

I

Ill!!
i

Findings of Fact, Conclusions of Law, and Order - page 57
CDV-2020-307

1

2
3

4

5

6

7
8

9

10

Claire has been harmed by the reduced snowpack in

Montana and the related impacts to winter sports and tourism.
C.

d.
Claire's ability to run cross-country has been harmedIby extreme heat and wildfire smoke. Claire has had cross-country practices

cancelled due to dangerously smoky air quality conditions. The heat and smoke

1:1ake it difficult for Claire to train and compete.
e.
Claire's family has water rights to Bozeman Creek.

Claire and her family use the water for drinking, plumbing, watering their garden,

and all other water needs at their home.
f.

Claire's water security is threatened by Montana'sg.

As an individual born with a disability, Claire relies

11

melting glaciers, declining snowpack, and increasing summer drought conditions,14on the outdoors for recreational therapy to replace the physical therapy her

17hiking, and running to maintain her physical health. Claire depends on a clean20

causing her to feel stress, anxiety, and a sense ofhelplessness about the future.

12

13

15
16

18

19

21

22
23

24
25

\1/hich lead to water scarcity and low water levels in Bozeman Creek.

i�surance stopped providing when she was ten years old. The outdoors helped

G:laire to grow strong and she continues to rely on activities like skiing, biking,a.nd healthful environment for her physical and mental health and well-being.
h.

Climate change impacts harm Claire's mental health,203. Plaintiff Taleah Hernandez is from Polson, Montana, andlives on the Flathead Indian Reservation.

Taleah has been forced to remain inside for extendedp,eriods oftime during the summer because ofpoor air quality caused bya.

excessive wildfire smoke. Wildfires have caused Taleah to lose electricity at her

Findings of Fact, Conclusions of Law, and Order - p age 58
CDV-2020-307

1

2

3

home and forced her to prepare to evacuate her home. The Boulder 2700 fire in
2021, forced Taleah to cut down trees around her property for fire safety.

b.

Taleah works outdoors with horses and other animals.

4Dangerous air quality conditions created by wildfire smoke have caused Taleah

78from participating in outdoor recreation activities, including hiking and!
paddleboarding on Flathead Lake.

11

Jas to ice skate on Flathead Lake in the winter.

5
6

9

10

12

13
14

15

to miss days ofwork, lose pay, and lose opportunities to ride horses.
C.

d.

Wildfires and wildfire smoke have prevented Taleah
Changes in weather and climate patterns, including

warming winter temperatures, have reduced the number ofopportunities Taleah
Wildfires and wildfire smoke have caused Taleahp1hysical and emotional distress.
e.

204. Plaintiff Eva L. is from Livingston, Montana.
a.

Eva enjoys many outdoor activities, including

16

backpacking, climbing, and cycling, which are central to her family life.

19

hleadaches because ofthe smoky air.

17
18
20

Eva has been harmed by wildfire smoke in Montanab.
Io'n numerous occasions, and Eva has suffered eye, nose, and throat irritation and
Eva and her family had a family trip to Glacier

21

National Park negatively impacted by excessive wildfire smoke, which posed24

flooding. In 2018, flooding along the Shields River damaged a bridge and

22
23

25

C.

r 'sks to Eva's health and safety.
l
Eva has been harmed by the impacts ofextremed.

Jndered impassable for more than a year the primary route from Eva's home toI

Findings of Fact, Conclusions of Law, and Order - page 59
CDV-2020-307

1

2

the town of Livingston. A temporary bridge was also washed away due toextreme flooding. Eva's family eventually decided to relocate because of this3

hardship. Being cut off from town was very stressful for Eva and her family.

6

major flooding along the Yellowstone River, including in Livingston. [CW-41;

4

5

7

Eva moved to Livingston and now lives near the

Yellowstone River. Eva feels a strong connection to the river. In 2022, there wase.

JS-I l]. Eva helped fill sandbags to hold back the flood waters. [PI 08, Pl09]. A

8park near Eva's home was underwater. [P11O]. Eva saw her community and close

11

emotional distress, panic, and dread. Parks and other public places she often

9

10

12
13

14

15
16

17

18

19

20
21

22

23

24
25

friends lose property due to flooding.
f.

The 2022 flooding in Livingston caused Eva acuteg.

Eva' s access to the Yellowstone River in summer

visits were significantly damaged, preventing her enjoyment of them.

2016 was significantly curtailed, as a 180-mile portion of the river was closed forseveral weeks due to a parasite growth in cutthroat and rainbow trout perpetuatedby abnormally high air temperatures and historically low river flows.
ties to the land.

h.

Eva has experienced forced relocation and the loss of

Eva has had her ability to access Montana's rivers forother recreational activities limited due to river conditions.
1.

j.

Wildfire smoke has impacted Eva's ability to hike ands�end time outdoors with her family.
k.

Eva is anxious about how she, her family andcommunity
can adapt to the devastation ofpublic resources and infrastructure asItlie impacts ofclimate change worsen. Eva is increasingly anxious about theFindings of Fact, Conclusions of Law, and Order - page 60
CDV-2020-307

1

climate change impacts she and her family are experiencing. She is distressed3205. Plaintiff Mica K. is from Missoula, Montana.

2
4

5

6

7
8

9

10

11

12

that climate change will worsen if action is not immediately taken.
a.

Rising temperatures and wildfires resulting fromclimate change make it difficult for Mica to recreate outdoors and participate inactivities he loves, and which are important to his health and well-being.
b.

Mica has been forced to spend extended periods oftime indoors and has lost school recess time because of wildfire smoke. In 2019,a forest fire started approximately one mile from Mica's home, and Mica isanxious that, as climate change worsens, he may lose his family home.
C.

Wildfire smoke has impacted Mica's training as along-distance runner. Mica is an avid runner, running his first half-marathon

13

when he was nine. He runs regularly with his dad. Running is a way for Mica to15

cannot run as much due to increasingly smoky summers in Missoula. Smoke has

14

be in nature and relieve stress. Running in smoke makes Mica feel sick, so he

16

liinited Mica's ability to train and compete in sports.

18

indoors during the summer because of wildfire smoke.

20

activities in August and September due to wildfire smoke and its negative effect

17

19

d.

Mica gets frustrated when he is required to staye.

Mica's family now avoids camping and other outdoorf.

Mica was recently diagnosed with exercise-induced

21

on Mica's health.

23

asthma,which puts him at greater risk for respiratory hardship when the air is
'

22
24
25

I
I

smoky.

Findings of Fact, Conclusions of Law, and Order - page 61
CDV-2020-307

1g.

Mica's favorite animal is the pika. Mica understands

2

the pika is uniquely vulnerable to climate impacts, and its survival is in jeopardy5

the views ofglaciers in Glacier National Park are disrupted by climate change.

3

4
6

7

8

9

due to climate change.
Ih.

Mica' s outdoor recreation activities such as enjoying

Seeing the glaciers recede in Glacier National Park is depressing for Mica.

Climate change causes Mica to feel anxious, stressed,

apd depressed, and makes it hard for him to sleep at times.
1.

I

206. Plaintiffs Jeffrey K. and Nathaniel K. are brothers who grew10

up in Montana City, Montana.

13

K. also has respiratory issues. Both Jeffrey and Nate are therefore especially

11
12
14
15
16

17

18

19

20
21

22
23
24
25

a.

Jeffrey K. has pulmonary sequestration and is

uniquely susceptible to respiratory complications, such as infections. NathanielI

v11lnerable to poor air quality, such as smoke-filled air caused by wildfires. [LBI{87:21-488:11, 505:4-25].
b.

The increasing length and severity ofthe wildfire

season harms Jeffrey's and Nathaniel's health, especially given their young age
I
ahd pre-existing respiratory health conditions. It has forced their family to makeI
changes in daily activities. [LB 487:21-488:11, 505:4-25].
1207. Plaintiffs Ruby D. and Lilian D. are from Bozeman,Montana. Shane Doyle is their father and he testified on their behalf.
a.

Ruby and Lilian are members ofthe Crow Nation.

I�uby
and Lilian regularly travel to the Crow Reservation to visit family members. ..
.
anI d engage m trad't'
1 10na 1 cu1tura1 actlv1t1es.

!!Ill

Findings of Fact, Conclusions of Law, and Order -p age 62
CDV-2020-307

1

2
3

4

b.

Ruby's Crow name is Biach;igata, which means"Pretty Woman." Lilian's Crow name is Malesch, which means "Loved byMany."

C.

Abnormal and extreme weather conditions caused by

5

climate change have impacted Ruby's and Lilian's ability to engage and7

individual dignity.

6

otherwise partake in cultural practices that are central to their spirituality and9Ruby and Lilian visit their family on the Crowd.
I
Reservation several times a year. Ruby and Lilian attend Crow Fair on the Crow

11

gathering to celebrate cultural activities and events. Many people, including

8

10

12
13

14

Reservation every year. Crow Fair takes place each August and is a large

Ruby and Lilian, stay in teepees. Attending Crow Fair is a highlight for Ruby and
IJilian. Ruby and Lilian love dancing at Crow Fair, and enjoy the parades, theirodeo, and doing family events.

i

17

In recent years, increasing temperatures at Crow Faire.
I
have made it hard to wear traditional regalia and participate in cultural activities
I
because it is dangerously hot, sometimes over 1 00 degrees.

19and Lilian to enjoy the Crow Fair.

21

they are unable to dance or participate in other events at the Crow Fair due to

15

16

18

20

f.

Wildfire smoke has also made it difficult for Rubyg.

It is a huge disappointment to Ruby and Lilian whenh.

Crow Fair used to coincide with when chokecherries

22heat or smoke.

24

were ripe, which was important because many meals eaten at Crow Fair involved
I

23

25

II/II

Findings of Fact, Conclusions of Law, and Order- page 63
CDV-2020-307

I

9hokecherries. In recent years chokecherry harvest has become much harder to2predict, and drought has meant there are less chokecherries available for the5

as part ofthe Crow tradition. They enjoy participating in the process of picking8

�ad none. Increased wildfire frequency has impacted the ability ofRuby and

3

4
6

7

festival.

Ruby and Lilian pick chokecherries with their family

the berries, processing them into syrup, and eating them. But due to drought andheat, fewer chokecherries are available and some stands that usually have berries

9

Lilian to participate in these traditional cultural practices.

12

when it is smoky, and Lilian often stays inside too. This is a disappointment for

10
II

13

14
15

16

17

18
19

Ruby was diagnosed with asthma when she was eight

years old and had an acute form ofpneumonia. As a result, Ruby stays insideJ.

�uby and Lilian.

k.
During the Bridger fire, which burned near BozemanIi4 2020, Ruby and Lilian were worried to see a fire so close to their home and it
brought up concerns about whether they were safe.
I
I.
Climate disruption has impacted Ruby and Lilian's

01.Jtdoor recreation activities, such as rafting, swimming, and floating. DroughtI
has created low river conditions that have impacted Ruby and Lilian's ability to

20

enjoy
recreating on the river because it has such low flow.
I

23

care ofthe Earth is their responsibility.

21
22
24

25

m.

Ruby and Lilian believe that protecting Montana's

environment and natural resources is important because in their culture taking

208. The testimony ofthe Youth Plaintiffs and their guardian was1cr�dible and was undisputed.
I

Findings of Fact, Conclusions of Law, and Order - page 64
CDV-2020-307

1

VI.

4

analysis and planning from the University of California at Davis in 1988 and a7r-.Jontana Environmental Information Center (MEIC). She directs MEIC's

10

pollution-related policy issues in Montana, with a primary emphasis on impacts

2
3

5

6

8

9

11
12

13

14

DEFENDANTS' ACTIONS CONTRIBUTE TO CLIMATECHANGE AND HARM PLAINTIFFS.

209. Anne Hedges received a B.S. in environmental policy

Master ofEnvironmental Law, magna cum laude, from Vermont Law School in

1993. She is Co-Director and Director ofPolicy and Legislative Affairs at theptogram work, including its legislative, regulatory, policy, and legal

activities. She has worked at MEIC since 1993, and her work is focused on

to air, water, landscapes, and climate from fossil fuels. Ms. Hedges is a well-qualified expert, and the Court found her testimony informative and credible.

210. Peter Erickson received a bachelor's degree in Geology in1998 at Carleton College, Minnesota, as well as coursework in intermediate15

microeconomics and macroeconomics at the University ofWashington. Mr.

18

Ehvironment Institute, an international research institution providing, in part,

16

17

19

20
21

22

23

24

25

E�ickson has worked as an environmental and climate policy and technicalal}alyst in greenhouse gas emission accounting, most recently with the Stockholm

technical analysis to government and NGOs on the details ofclimate policy andemissions accounting. Mr. Erickson has served on both national and international
1

cJmmittees devoted to GHG emissions accounting: one convened by theInternational Council ofLocal Environmental Initiatives (ICLEI) to create a U.S.
Cbmmunity-scale GHG Emissions Accounting and Reporting Standard, and one

convened by the Greenhouse Gas Protocol to create the Greenhouse Gas

I

Mitigation Goals Standard. [P192]. Mr. Erickson testified about Montana's fossil

F indings of Fact, Conclusions of Law, and Order - page 65
CDV-2020-307

1fµel consumption, extraction, and infrastructure, focusing on three categories:3(3) consumption of fossil fuels by end users. For each of these categories, Mr.

245(1) extraction of fossil fuels; (2) processing and transportation of fossil fuels; andErickson quantified the amount of coal, oil, and gas and translated that in units ofcarbon dioxide (CO2) emissions released from the fuels once they are combusted.

6

Mr. Erickson added up all the coal, oil, and gas to determine the emissions

8

his opinion, emissions from Montana's fossil fuel consumption, extraction, and10expert, and the Court found his testimony informative and credible.

12

an expert economist. Purporting to be based on data from the Energy Information

7

9

11

associated with the extraction, consumption, and transportation of those fuels. In
infrastructure are globally significant quantities. Mr. Erickson is a well-qualified
211. Defendants offered the testimony of Dr. Terry Anderson as

13

Agency (EIA), Dr. Anderson provided extremely limited testimony in response

152920 greenhouse gas consumption emissions for the state of Montana; and (3) the

14
16
17
18
19

20
21

22
23

24
25

to three questions: (1) the total greenhouse gas emissions for the world; (2) thei
2022 greenhouse gas consumption emissions for the state of Montana. Dr.

Anderson's testimony was not well-supported, contained errors, and was notIgiven weight by the Court.

212. Defendants permit three types of fossil fuel-relatedac;tivities: (1) extraction of fossil fuels; (2) processing and transportation of fossil
fuels; and (3) consumption of fossil fuels by end users. [PE 9 14:12-915:3; PE-9].
i213. Fossil fuel consumption includes any combustion, or

burning, of these fuels, primarily for energy. Fossil fuel extraction is mining,

pJmping, drilling, or otherwise taking fossil fuels out of the ground for purposesof making fuels. Fossil fuel processing and transportation are activities that occur''

Findings of Fact, Conclusions of Law, and Order - page 66
CDV-2020-307

1

2

3

4
5

between that initial extraction and combustion by the end user, such as refining,or moving the fuels in bulk from one place to another. [PE 914: 14-21; PE-11].

214. It is possible to calculate the amount of CO2 and GHG
I
epiissions that results from fossil fuel extraction, processing and transportation,and consumption activities that are authorized by Defendants. [PE 915:13-21;

6P311; PE-10].

8e�tracted in Montana led to about 70 million tons of CO2 being released into the7215. Data indicates that in 2019, the total annual fossil fuels9atmosphere once the fuels were combusted, which is higher than many other11[PE 922:23-923:3, 928:18-929:11, 950:13-14; PE-17].

10

12

13

countries, including Brazil, Japan, Mexico, Spain, or the United Kingdom.
216. Data indicates that in 2019, total annual fossil fuelsc�nsumed in Montana led to about 32 million tons of CO2 being released into the14

Atmosphere.

16

iI\ and through Montana led to at least 80 million tons of CO2 being released into

18

That is equivalent to all the GHG emissions from Columbia, which has 50 times

15

17

i

217. In 2019, total annual fossil fuels transported and processed

the atmosphere once those fuels were combusted. [PE 923:19-924:4, 950:14-15].

19

tJe population of Montana. [PE 930: 11-23; PE-17, PE-20].

21

cJnsumed, processed, and transported in Montana, the total CO2 emissions due to20

22

218. Accounting for overlap among fossil fuels extracted,

Montana's fossil fuel-based economy is about 166 million tons CO2 • [PE 924:5-

23

18, 950:16-18; PE-18]. This is a conservative estimate and does not include all25[PE 928:5-9; PE-17].

24

the GHG emissions, including methane, for which Montana is responsible.

Findings of Fact, Conclusions of Law, and Order - page 67
CDV-2020-307

1

2
3

4
5

2 1 9. The 1 66 million tons CO2 due to Montana's fossil fuel-based

e'conomy is equivalent to the emissions from Argentina (with forty-seven million

r1sidents), the Netherlands (with eighteen million residents), or Pakistan (with
2·4 3 million residents). [PE 93 1 :22-932:9; PE-22] .

220. In terms of per capita emissions, Montana's consumption of

6

fossil fuels is disproportionately large and only five states have greater per capita

8

i

7

emissions. [PE 930 : 1 9-23, 938 :23-25; PE-25].

22 1 . The cumulative CO2 emissions from all fossil fuels extracted

9in Montana since 1 960 is 3 .7 billion metric tons of CO2 . [PE 94 1 :9- 1 9; PE-26] .

11

in absolute terms, in per person terms, and historically. [PE 93 0: 1 9-23] .

13sbring Creek Mine, Rosebud Mine, Decker Mine, Absaloka, Bull Mountain, and15

recoverable coal reserves in the U.S., and Montana is a substantial exporter of

10
12
14

16
17

222. Montana is a major emitter of GHG emissions in the world
223 . Montana has six coal mines that Defendants authorize:S�vage Mine. [PE 942: 1 6-943 :5]. Montana also has the largest estimatedc6al. [AH 79 1 : 1 -25; AH-7-AH- 1 3 ; PE 946 : 1 -3] .

224. Montana's annual coal production is 34 million short tons of

,

I

18

c�al. [PE 946:5-22] . Montana's coal reserves, as of 20 1 9, are 707 million short

20

225. Montana is a substantial producer of oil and gas in the U.S.

19

tons. [PE 945 :2 1 -25; PE-3 7] .

21

Dbfendants authorize the drilling and production of oil and gas in Montana. [PE23

226. Montana has approximately 4,000 oil producing wells with

22
24
25

932: 1 8-933 :5, 949:7- 1 5].
I

an annual oil production of twenty-three million barrels. As of 20 1 9, Montana's

oil reserves were 298 million barrels. [PE 946:23-947:8; PE-36, PE-37].
'

Findings of Fact, Conclusions of Law, and Order - page 68
CDV-2020-30712227. Montana has approximately 5,000 gas producing wells withan annual oil production of forty-three billion cubic feet. As of 2019, Montana's

3gas reserves were 613 billion cubic feet. [PE 947:14-19; PE-36, PE-37].

5

fossil fuel consumption in Montana has been gas. [PE 942: 11-12].

7

948 :22-24, 949:10-15]. Montana's refineries process crude oil largely from

4
6228. Between 1960 and 2019 the fastest growing category of
229. Montana is home to four state-authorized oil refineries. [PE

8Canada and Wyoming and distribute the refined product by railroad and pipeline

10230. Montana's land contains a significant quantity of fossil fuelsI
yet to be extracted. [Def. Answer, Doc. 54 ,i 139; PE 945 :21-946:4, 947:16-19,

9

11

12
13
14

15

16

throughout Montana and to nearby states. [PE 948 : 17-949:23; PE-38].
'

945:1-25].
I

231. Montana's GHG emissions have grown significantly since\
the passage of the 1972 Montana Constitution. [AH 940: 15-941 :2; PE-27,

PE-28].

17232. Defendants continue to approve permits and licenses forI
new fossil fuel activities. (AH 862:1-5; SN 1354:12-16].

19transportation, and combustion resulting in high levels of GHG emissions that

18

20

21

22

23

24
25

233. Defendants have authorized fossil fuel extraction,

cdntribute to climate change. [AH 831 :22-832: 1, 846:25-847: 11, 845 : 14-846:3;
I
AH-50-AH-61; PE 932:18-933:5].
!
234. In taking action to authorize fossil fuel extraction, since2011 Defendants have not considered or disclosed GHG or climate

ch,ange impacts in their environmental reviews because they were statutorilyI
precluded from doing so. (AH 836:2-13, 845 : 14-846:3; AH-50-AH-61].

Findings of Fact, Conclusions of Law, and Order- page 69
CDV-2020-3071235. DEQ issues air quality permits to facilities that emit GHG

2emissions. [AH 788 :13-23; Def. Answer, Doc. 11 ,r 90].

4and combustion, which generate GHG emissions, contribute to climate change,

6237. What happens in Montana has a real impact on fossil fuel

3
5

7
8

9

236. DEQ has authorized fossil fuel extraction, transportation,and harm Plaintiffs. [AH 845 :14-846:24; AH-50-AH-61].

energy systems, CO2 emissions, and global warming. [PE 976:8-24; PE-40].

VII.

10

12
13

15

16

239. While this case has been pending, Judge Moses held in

MEIC v. DEQ:

Here, the plain language of MCA 75-1-201(2)(a) precludes agency
MEPA review of environmental impacts that are 'beyond Montana's
borders,' but it does not absolve DEQ of its MEPA obligation toevaluate a project's environmental impacts within Montana. DEQ
misinterprets the statute. They must take a hard look at thegreenhouse gas effects of this project as it relates to the impacts
within the Montana borders.

17
18

19

20

21

238. The 2011 MEPA Limitation provided in pertinent part:(2)(a) Except as provided in subsection (2)(6), an environmental
review conducted pursuant to subsection (1) may not include a
review of actual or potential impacts beyond Montana's borders. It
may not include actual or potential impacts that are regional,
national, or global in nature.

11

14

THE MEPA LIMITATION AND ITS IMPLEMENTATION.

22

Order on Summary Judgment at 29:3-9, MEIC v. DEQ, No. DV-56-2021-1307(Thirteenth Dist. Ct., April 6, 2023).

24

tas introduced in the Montana Legislature. HB 971 was passed, sent to enrolling

23

25

!Ill/

240. Eight days after Judge Moses' ruling, on April 14, 2023, HB 971

Findings of Fact, Conclusions of Law, and Order- page 70
CDV-2020-307

1

on May 1 and signed by the Governor on May 1 0, 2023. HB 971 clarifies the39(2)(a) Except as provided in subsection (2)(b), an environmental
review conducted pursuant to subsection (1) may not include anevaluation of greenhouse gas emissions and corresponding impacts
to the climate in the state or beyond the state's borders.
(b) An environmental review conducted pursuant to subsection (1)may include an evaluation if:(i) conducted jointly by a state agency and a federal agency to theextent the review is required by the federal agency; or(ii) the United States congress amends the federal Clean Air Act toinclude carbon dioxide emissions as a regulated pollutant.

11

Mont. Code Ann. § 75-l-20 1 (2)(a) (enacted May 1 0, 2023) (new language
underlined).

13

to legal challenges to MEPA environmental reviews were amended when the15§ 75-l-201 (6)(a)(ii), which states:

2

MEPA Limitation to say:

4
5

6

7
8

10
12
14

16

241 . On May 1 9, 2023, various provisions of MEPA that pertain

Governor signed SB 557 into law. SB 557 created Mont. Code Ann.

(ii) An action alleging noncompliance or inadequate compliance witha requirement of parts 1 through 3, including a challenge to anagency's decision that an environmental review is not required or aclaim that the environmental review was inadequate based in whole orin part upon greenhouse gas emissions and impacts to the climate inMontana or beyond Montana's borders, cannot vacate, void, or delaya lease, permit, license, certificate, authorization, or other entitlement
or authority unless the review is required by a federal agency or theUnited States congress amends the federal Clean Air Act to include
carbon dioxide as a regulated pollutant.

17
18

19

20
21

22

23

24
25

Mont. Code Ann. § 75-l-20 1 (6)(a)(ii) (enacted by SB 557, 68th Legislature�2023)) (signed May 1 9, 2023).
I!!!!!

Findings of Fact, Conclusions of Law, and Order-page 7 1
CDV-2020-307

1
2

3

242. Other components ofSB 557 limit who can challenge anagency's final decision, the scope ofthe challenge, and require challengers to pay
a fee to compile and submit a certified record to the reviewing court. [AH 825:4-

4

826:18; AH-45].

7increase emissions ofgreenhouse gases. [AH 851:9-852:23; AH-51-AH-60] .

5

6

8

9

243. Both the 2011 and 2023 versions ofthe MEPA Limitation

allowed Projects to be permitted without consideration of their impacts that244. The State has known ofthe dangerous impacts ofGHG

emissions and climate change for at least the last thirty years. [CW 256 :6-15; AH

10

802:13-18; AH-25, AH-26; P17, P19] .

13

least the 1990s when the IPCC started issuing climate assessment reports. The

16

AH 797:5-798:6, 802:13-18; CW 256 :9-24; AH-32, AH-33, AH-34; P28, P262,

19

Governor were made aware ofthe issues concerning the impacts ofclimate

11

12

14
15
17

18
20

245. State government and scientists have known about theinternational scientific consensus ofthe dangers posed by climate change since atState also had access to the congressionally mandated national climate

assessments undertaken in 2000, 2009, 2014, and 2017. [SR 139: 12-140: 1;
P263].

246. In 2007, Defendants DNRC, DEQ, and the Office ofthechange in Montana, including rising temperatures, accelerating warming, and21

�educed snowpack, and the need for Montana to reduce its GHG emissions, as a24

f43:14-244:3, 256:19-24; CW-12, CW-13, CW-14; AH 806:17-807:20; AH-35,
H-36, AH-37; P2, Pl8].
t

22
23
25

result ofthe 2007 Montana Climate Change Action Plan and the 2007 Montana
yreenhouse Gas Inventory and Reference Case Projections 1990-2020. [CW

Findings of Fact, Conclusions of Law, and Order - page 72
CDV-2020-307

1

2

3

247. In 2017, Defendants DNRC, DEQ, and the Office ofthe

Governor were again informed by the 2017 Montana Climate Assessment oftheissues concerning the impacts of climate change in Montana. [CW 243: 14-244:3;

4

AH 832:12-24; AH-49; P6].

7

Defendants knew that "climate change poses a serious threat to Montana's

5

6

8

10
9

11
12

13

248. In 2019, when then Governor Steve Bullock promulgated

Executive Order No. 8-2019 creating the Montana Climate Solutions Council,

natural resources, public health, communities, and economy," and "Montanans

understand that climate change is occurring and are concerned about the impacts

it will have on current and future generations." [AH 832:25-833:6; AH-49; P I O].
249. In August 2020, when the Montana Climate Solutions

Council released its final report, the Montana Climate Solutions Plan (Climate

Solutions Plan), the State knew how climate change was already harming

14

Montana and its residents, through rising temperatures, early snowmelt, earlier

177-22; AH 833:7-835:10; AH-49; P36].

15

16

18

19
20

21

22

23

24

25

spring runoff, flooding, changes in water availability and stream temperatures,increase in forest mortality due to insects, and increasing wildfires. [CW 244:
250. The Cl_imate Solutions Plan included thirty-sevenrecommendations and strategies to reduce Montana's GHG emissions. [AH
833:7-835:10; AH-49; P36]. Defendants have not implemented therecommendations. [AH 835:8-10].

251. In 2021, the report Climate Change and Human Health inMontana was distributed to State officials. [CW 245:2-246-1].

252. Prior to 2011, Defendants were quantifying and disclosing

GHG emissions and climate impacts from fossil fuel projects, including, forI

Findings of Fact, Conclu s ions of Law, and Order - p age 73
CDV-2020-307

1example, the Silver Bow Generation Project, the Roundup Power Project (Bull2

Mountain), and the Highwood Generating Station. [AH 808 : 10- 1 9, 808:20-

4

P232, P225, P226, P229, P237].

6

have been statutorily prevented from considering climate change impacts and8

8 1 6 : 1 7-8 1 7 : 1 4, 8 18 : 1 1 -8 1 9 : 1 0; SN 136 1 :6-9; AH-42].

3
5

7

9

809: 18, 809: 1 9-8 10:24, 8 1 1 :8-24, 8 1 3 :6-23; AH-38, AH-39, AH-40; P23 l , P224,
253. Since 2011, because of the MEPA Limitation, Defendants

GHG emissions when conducting environmental reviews. [AH 8 14:6-21,

254. The MEPA Limitation explicitly prohibits state agencies

10from considering the impacts of climate change and GHG emissions in

12

8 1 8: 1 1 -8 1 9 : 1 0; SN 1 361 :6-9; AH-42].

11

13

�nvironmental reviews under MEPA. [AH 814:22-8 1 5 :9, 8 1 6: 1 7-8 1 7: 14,
255. Pursuant to the MEPA Limitation, the State has ignored

14

GHG
emissions and climate impacts when authorizing fossil fuels activities. [ AH'

16

256. The MEPA Limitation constrains Defendants from making

15

17

18

8 1 4:22-8 1 5 :9, 8 16: 1 7-8 1 7: 14, 8 1 8 : 1 1 -8 19: 1 0; AH-5 1 -AH-60].

fully informed decisions through their environmental analysis about the scopeand scale of the impacts to the environment and Montana's children and youth

19

when conducting environmental reviews. Mont. Code Ann. § 75-l-201 (6)(a)(ii)

21

decisions and MEPA analyses.

20
22
23

24
25

attempts to constrain the authority of courts when reviewing agency permitting
257. If the MEPA Limitation is declared unconstitutional, state

Jgencies will be capable of considering GHG emissions and the impacts of

Jrojects on climate change. [AH 807:23-808: 1 9, 821 : 1 6-25; SN 1 437:4-8; P231 ,7I

224, P232, P225, P226, P229, P237].

Findings of Fact, Conclusions of Law, and Order - page 74

CDV-2020-307

1

2
3

4

5

6

7
8

9

258. Montana's river and lake ecosystems are interconnectedwith each other, as well as aquatic and terrestrial ecosystems beyond Montana's

borders. Because ofthis interconnectivity to ecosystems both within and beyond

Montana's borders, any prohibition on the consideration ofeither impacts within
Montana or regional impacts ofclimate change, is not scientifically supported.
[JS 642:23-15, 646:2-647:2].

259. Defendants' application ofthe l'vIEPA Limitation during

environmental review offossil fuel and GHQ-emitting projects, prevents theavailability of vital information that would allow Defendants to comply with the10Montana Constitution and prevent the infringement ofPlaintiffs' rights. [AH

13Montana that emit substantial levels ofGHG pollution, including, but not limited

16

emissions and measure those individual and cumulative emissions against the

11
12
14

15

17

810:13-24, 816:9-16, 820:16-821:11, 822:1-823:10; AH-51-AH-60].

260. The State authorizes energy projects and facilities within

to, projects that burn and promote the use offossil fuels, but pursuant to the

MEPA Limitation, Defendants do not consider climate change and GHG

standards the Montana Constitution imposes on the State to protect people's

18

rights, before authorizing energy projects and facilities. [AH 818:25-819:10,

21

GHG emissions without considering how the additional GHG emissions will

19
20

22
23
24

25

824:8-825 :3; AH-51-AH-60].

261. The State issues permits, licenses, and leases that result incontribute to climate change or be consistent with the standards the Montana
Constitution imposes on the State to protect people's rights. [AH 832:2-11,

841:23-844:9, 843:1-844:5, 844:19-846:3; AH-51-AH-60].
I
I/Ill
Findings of Fact, Conclusions of Law, and Order - page 75
CDV-2020-307

1

2

3

262. The State authorizes four private coal power plants tooperate in the State, which generate 30% of Montana's energy production,

without considering how the additional GHG emissions will contribute to climate

4change or be consistent with the standards the Montana Constitution imposes on

7\eclamation in Montana, which results in substantial GHG emissions, without

5

6

8

9

10

11
12

the State to protect people's rights. [AH 792:1-21].

263. The State continues to permit surface coal mining andconsidering how the additional GHG emissions will contribute to climate changeor be consistent with the standards the Montana Constitution imposes on theState to protect people's rights. [AH 836: 16-846:3; PE 934:14-15].

264. The State authorizes, through licenses and leases, theexploration for and extraction of oil and gas in Montana, without consideringI

13

how the additional GHG emissions will contribute to climate change or be

16

265. Defendants have and continue to authorize projects,

14

15

17
18

19

20

21

22

23
24
25

consistent with the standards the Montana Constitution imposes on the State toprotect people's rights. [AH 793 :6-18, 845 :20-846:9].

activities, and plans that cause emissions of GHG pollution into the atmosphere,
all while ignoring the impacts of climate change and GHG emissions due to the
MEPA Limitation. [AH 836:16-846:3; AH-51-AH-60; PE 932:18-933:5]. For
example:Defendants authorize and certify energy projects andfacilities within the State of Montana that emit substantial levels of GHG
a.

pollution, including, but not limited to, projects that bum and promote the use ofIfossil fuels. [AH 836:16-846:3; PE 932:18-933:5].
I

NIii

Findings of Fact, Conclusions of Law, and Order - page 76
CDV-2020-307

1

2

3

4

5

b.

DEQ approved the AM4 expansion ofRosebud Strip

Mine in December 2015, a 12.1-million-ton coal mine expansion. Pursuant to the
MEPA Limitation, DEQ refused to analyze how that decision would aggravateclimate impacts. [AH 836:16-837:12; P259, P260, P277; AH-51].

DEQ issued a MSUMRA permit to Bull Mountain6

Mine in January 2016, authorizing Bull Mountain Mine to produce 176 million

9

P264; AH-52].

7

8

10

11

C.

t,ons ofcoal per year. DEQ refused, pursuant to the MEPA Limitation, to analyze

how the decision would aggravate climate impacts. [AH 837:14-838: 16; P243,d.

Between 2002 and 2014, DEQ issued twelve different

permits for Signal Peak Energy to operate the Bull Mountain Mine. Since 2011,12

pursuant to the MEPA Limitation, DEQ refused, in its environmental

15

P247, P256].

13

14

16

17

assessments to consider how those GHG emissions would contribute to climatechange or adversely impact Montana's environment and natural resources. [P245,e.

DEQ approved the TR3 expansion ofDecker Mine in2018, allowing for strip-mining of twenty-three million tons ofcoal. DEQ

18refused, pursuant to the MEPA Limitation, to analyze how that decision would

21

Mine, the largest coal mine in the State, allowing for recovery ofadditional

19
20

aggravate climate impacts. [P236, P238, P250, P252, P257-258].
f.

In 2020, DEQ approved revision to Spring Creek

22

seventy-two million tons ofcoal. In August 2019, DEQ refused, pursuant to the25

P255; AH-56].

23

24

�pA Limitation, to analyze impacts on the social cost ofcarbon and economic
impacts from climate change in its EIS. [AH 841:23-842:20; P227, P248, P253,
I
I

Findings of Fact, Conclusions of Law, and Order - page 77
CDV-2020-307

1

2

g.

DEQ authorized the operation of Colstrip SteamElectric Station-which produced 13.2 million metric tons of carbon dioxide

3equivalent (CO2e), 38,015 metric tons methane, and 65,919 metric tons nitrous

5

various greenhouse gases based upon their global warming potential (GWP).

4
6

7
8

9

oxide in 2018. CO2e is a metric measure used to compare the emissions from
[P281, P285, P286].

h.

In 2019, when DEQ issued its Record of Decision

approving Western Energy's permit application to expand coal mining at

Rosebud Coal Mine Area F, where "[t]he proposed mine permit application

10

would add 6,746 acres and approximately 70.8 million tons of recoverable coal

12

years (at the current rate of production)." DEQ, pursuant to the MEPA

14

climate change or adversely impact Montana's environment and natural

11
13
15

16

reserves to the Rosebud Mine, extending the operational life of the mine by eight

Limitation, did not consider how those GHG emissions would contribute toresources. [AH 830:25-840:16; SN 1322:21-1323:2; P254, P277, P297; AH-54].
I.

DEQ issued the air quality permit to NorthWestern

17

Energy for the Laurel Generating Station (now named the Yellowstone County

19

Limitation, DEQ, in its environmental assessment, did not consider how the21

Montana's environment and natural resources. [AH 831 :9-21, 844:19-845:13;

18

20

22

23
24
25

Generating Station), a proposed gas-fired power plant. Pursuant to the MEPA

GHG emissions would contribute to climate change or adversely impact

P294; AH-57].

J.

In May 2022, DEQ issued its Final EIS for Rosebud

Mine Area B AM5, in Colstrip. Pursuant to the MEPA Limitation, theenvironmental assessment did not consider how GHG emissions would

Findings of Fact, Conclusions of Law, and Order - page 78
CDV-2020-307

1

2
3

contribute to climate change or adversely impact Montana's environment andnatural resources. [AH 840:20-841 :22; P228; AH-55].
k.

DEQ continues to issue permits for fossil fuel energy

4projects, including oil and gas pipelines and associated compressor stations, coal

7

fuel power plants. Pursuant to the MEPA Limitation, DEQ does not consider how

5

6

8

9

10

11

12

mines and coal facilities, oil and gas facilities, oil and gas leases, oil and gas

drilling, petroleum refineries, industrial facilities that bum fossil fuels, and fossil
a proposed project would contribute to climate change or adversely impact

Montana's environment and natural resources. [AH 845: 14-846:24; PE 949:7-15,
954:2-9; P138, P224, P232, P239, P240, P241, P242, P246, P249, P251, P264,

P276, P277, P278, P279, P280, P281, P282, P285-301; AH-58, AH-59, AH-60].
1.

DNRC issues permits for fossil fuel projects,

13

including coal mines and oil and gas extraction. DNRC does not consider how

16

because ofthe MEPA Limitation. [P217-217; P233, P234, P235, P265-P275,

1415

GHG emissions from projects will contribute to climate change or adversely

impact Montana's environment and natural resources or violate the Constitution,

17

P283, P284].

20

activities with no environmental review oftheir impact on GHG levels in the22

GHG pollution into the atmosphere within Montana and outside its borders,

18

19

21

23

24
25

266. Montana's annual, historical, and cumulative GHG

emissions are increased by Defendants' actions to permit and approve fossil fuelatmosphere and climate change. [PE 932:18-933:5].

267. Defendants' actions cause emissions ofsubstantial levels ofdontributing to climate change. [SR 164:18-166:16; PE 932:18-933:5].

I/Ill

Fi ndi ngs of Fact, Conclus ions of Law, and Order-page 79
CDV-2020-307

1

2

3

4
5

6

7

268. The State's actions exacerbate anthropogenic climate change

and cause further harms to Montana's environment and its citizens, especially its
youth. [AH 845:14-846:2; P150].

VIII.

THE MEPA LIMITATION PREVENTS FULL REVIEW OF THE

TECHNOLOGICALLY AND ECONOMICALLY AVAILABLE

ALTERNATIVES TO FOSSIL FUEL ENERGY IN MONTANA.

269. Dr. Mark Jacobson obtained a M.S. in Environmental

8

Engineering, from Stanford University. Dr. Jacobson also obtained both a M.S.

11

Engineering at Stanford. Since 2007, he has been a full professor in that

14

Institute for Energy, and Stanford's Woods Institute for the Environment. Since17

science, business, and culture to accelerate the transition to 100% renewable

9

10
12

13

15
16
18
19

20

and later a Ph.D. in Atmospheric Sciences from UCLA. In 1994, Dr. Jacobson

becamean Assistant Professor in the Department ofCivil & Environmental'
Department. Dr. Jacobson was a co-founder and is Director of Stanford's

Atmosphere/Energy Program, as well as a Senior Fellow at Stanford's Precourt

2008, Dr. Jacobson has been Director and Co-founder ofThe Solutions Project,
an organization that utilizes the combined efforts ofindividuals in the fields ofenergy use in the United States. Starting in 1999, Dr. Jacobson began examining

clean, renewable energy solutions. In 2015, this research culminated in thedevelopment ofroadmaps to transition the all-sector energy infrastructures of21

each ofthe fifty United States to 100% clean, renewable energy by 2050, which

24

has focused on understanding air pollution and global warming problems and

22

23

25

Dr. Jacobson updated in 2022. Dr. Jacobson has published six textbooks oftwo

editions each and over 175 peer-reviewed journal articles. Dr. Jacobson 's careerc;!eveloping large-scale clean, renewable energy solutions to those problems. In

F i ndi ngs of Fact, Conclu sions of Law, andOrder-page 80
CDV-2020-307

1

2
3

this case, Dr Jacobson summarized his research related to Montana and thefeasibility oftransitioning Montana swiftly from fossil fuels to clean andrenewable energy in all sectors by mid-century, where all energy sectors include

4

electricity, transportation, heating/cooling, and industry. Dr. Jacobson is a well­7

energy alternatives to fossil fuels. [MJ 1030:7-1032:24, 1035:9-23, 1069:18-

10

including electricity, transportation, heating/cooling, and industry, are currently

13

purpose energy systems (for electricity, transportation, heating/cooling, and

5

6

8

9

11

12

14

qualified expert, and his testimony was informative and credible.

270. The MEPA Limitation causes the State to ignore renewable

1071:8, 1066:6-17, 1067:10-20; MJ-15, MJ-62, MJ-63; AH 823:15-825:3; P312].
271. Non-fossil fuel-based energy systems across all sectors,

economically feasible and technologically available to employ in Montana.

Experts have already prepared a roadmap for the transition ofMontana's all­industry) to a 100% renewable portfolio by 2050, which, in addition to direct

15

climate benefits, will create jobs, reduce air pollution, and save lives and costs

18

272. It is technically and economically feasible for Montana to

16

17

associated with air pollution. [MJ 1030:7-1032:24, 1035:9-23, 1069:18-1071:8,

1066:6-17, 1067:10-20; P312; MJ-15, MJ-62, MJ-63].

19

replace 80% ofexisting fossil fuel energy by 2030 and 100% by no later than

22

Montana's relied on >95% wind, water, and sunlight (WWS) to power their

20
21

23

24

25

2050, but as early as 2035. [MJ 1072:4-23, 1100:9-1101 :4; P312; MJ-62, MJ-63].
A number ofcountries around the world with populations far larger than

Jlectricity sectors in 2021. [MJ-44].
!

273. To replace fossil fuel energy, Montana would need toelectrify all energy sectors with existing or near-existing appliances andFindings of Fact, Conclusions of Law, and Order - page 8 1
CDV-2020-307

12machines, and then generate the electricity for all sectors with 100% WWS,

namely onshore wind, utility-scale photovoltaics (PV), rooftop PV, geothermal

3

power, and hydroelectric power. [MJ 1043:9-1045 :8, 1045:15-1047:10; P312;

6

example, in one scenario, with 4.5 gigawatts (GW) ofonshore wind, 3 GW of

4
5

MJ-12, MJ-15, MJ-18, MJ-19, MJ-20, MJ-29].

274. All-purpose Montana energy in 2050 can be met, for7rooftop PV, 2.9 GW of utility-scale PV, 0.17 GW ofgeothermal electricity, and10

11lould eliminate another $21 billion in climate costs in 2050 to Montana and theIworld. Most noticeable to those in Montana, converting to wind, water, and solar

14

energy, health, plus climate cost savings, therefore, will be a combined $29

8
9

12
13
15

16

17
18
19

2.7 GW ofhydropower (which already exists). [MJ 1057:2-1058:15; MJ-29].
,

275. Converting from fossil fuel energy to renewable energy

energy would reduce annual total energy costs for Montanans from $9.1 to $2.8'
Ibillion per year, or by $6.3 billion per year (69.6% savings). [MJ-39]. The totalbillion per year (decreasing from $32 to $2.8 billion per year), or by 91%.
[MJ 1061:20-1063:24; MJ-15, MJ-39, MJ-40, MJ-41, MJ-42].

276. Wind, water, and solar are the cheapest and most efficient

form ofenergy. Cost per unit ofenergy in a 100% WWS system in Montana

would be about 15% lower than a business-as-usual case by 2050, even when

20

including increased costs for energy storage. New wind and solar are the lowest

23

1062:8-1063:24; MJ-20].

21
22
24
25

cost new forms ofelectric power in the United States, on the order of about half

�he cost ofnatural gas and even cheaper compared to coal. [MJ 1045 :9-1047: 10,

NIii
NIii

Findings of Fact, Conclusions of Law, and Order - page 82
CDV-2020-3071277. According to a 2018 Montana DEQ report, Understanding

2

Energy in Montana, Montana has significant solar energy potential, comparable

5

renewable energy system in Montana would be only about 0.06% ofMontana's

8

could be used for agriculture, open space, or more solar panels, would occupy

3

4

6

7

9

to many other U.S. cities. [MJ 1086:21-1087:4; P9; MJ-50].

278. The new footprint over land required to implement a 100%

land. Utility scale solar would occupy 0.01 % ofMontana's land (fourteen square

miles), while new wind turbines, including the land around those turbines, which
about 0.05% (seventy-one square miles) ofMontana's land. In comparison,

10

Montana's oil and gas wells and associated infrastructure already occupy about

13279. There is an abundant supply ofrenewable energy and four

11
12
14

15

16

304 square miles ofland (0.21% ofMontana land area). [MJ 1079:25-1082:3;

MJ-46].

ways to store renewable energy: heat storage (in water), cold storage (as ice),electricity storage (pumped hydropower, batteries, hydrogen fuel cells), andhydrogen as a form of storage (for use in long distance transportation and steel

17

production). [MJ 1057:2-15, 1058:5-15, 1072:24-1073:7, 1076:9-1077:22,

20

roadmap would decline significantly (over fifty percent) as compared to a18

191079:22-1082:8; MJ-15, MJ-19, MJ-45, MJ-62].

280. Montana's energy needs in 2050 under a 100% WWS

21business-as-usual energy system due to a mix ofgains in energy efficiency in24

MJ-15, MJ-19, MJ-20, MJ-21, MJ-22, MJ-23, MJ-24, MJ-25, MJ-26, MJ-27,
I
MJ-55].
MJ-28,
'

22

23

25

vehicles and appliances, and through eliminating the significant amounts ofenergy required to extract, transport, and refine fossil fuels. [MJ 1045 :9-1047: 10;

Findi ngs of Fact, Conclusions of Law, and Order-page 83
CDV-2020-307

1

2

28 1 . Transitioning to WWS will keep Montana's lights on whilesaving money, lives, and cleaning up the air and the environment, and ultimately

3

using less of Montana's land resources. [MJ 1 0 6 1 :4- 1 062: 1 2, 1 066:6- 1 7,

5

MJ-46, MJ-56, MJ-57, MJ-58, MJ-62].

7

systems are not technical or economic, but social and political. Such barriers

4
6

1 066: 1 8- 1 067:20, 1 079:22- 1 082:8; MJ- 1 5, MJ-20-MJ-30, MJ-39, MJ-4 1 , MJ-42,
282. The current barriers to implementing renewable energy

8

primarily result from government policies that slow down and inhibit the10development and preclude a faster transition to a clean, renewable energy system.

911transition to renewables, and laws that allow utilization of fossil fuel[MJ 1 042 : 1 5 - 1 043 :2, 1 059:9- 1 06 1 :3, 1 1 00:9- 1 1 0 1 :4, 1 1 03 : 1 1 - 1 1 04:24; MJ- 1 5 ,12MJ- 19, MJ-20, MJ-33, MJ-3 5, MJ-36, MJ-3 8, MJ-62, MJ-63] .

14

provide enough energy to power Montana's energy needs for all purposes in

16

MJ-50, MJ-6 1 , MJ-62] .

13
15283. Montana has abundant renewable energy resources that can

2050. [MJ 1 05 8 :2- 1 5 ; MJ- 1 5 , MJ- 19, MJ-29, MJ-30, MJ-46, MJ-47, MJ-48,

17

IX.

19

Constitutional Convention. Ms. Ellingson's testimony was informative and21

Constitutional Convention proceedings on which Montana courts regularly rely.

18

20
22
23

24

25

THE 1972 MONTANA CONSTITUTION.

284. Mae Nan Ellingson was a delegate to the 1 972 Montana

provided useful context, including on the compilation of the records of theMs. Ellingson was elected to the Constitutional Convention as a delegate from
Missoula County.

I

Ill//
I
Ill!!

Findings of Fact, Conclusions of Law, and Order - page 84
CDV-2020-30712285. The first "delegate proposal" advanced during theConstitutional Convention was for a constitutional provision on environmental

3

quality.

5

state and each person shall maintain and improve a clean and healthful

4286. Article IX, Section 1 of the Constitution states that "[t]he6environment in Montana for present and future generations." This provision came8

the Natural Resources Committee by including the words "clean" and7

about after long debate to strengthen the environmental article recommended by

9"healthful."

11(March 1, 1972, Vol. V 1230), Ms. Ellingson suggested the "legislature shall

10

12
13

287. As reflected in the Constitutional Convention Transcripts

provide adequate remedies to prevent" language of Article IX, Section 1 to assure

1reater protections of the current environment. She believed that if you are14

trying to protect the environment, you need the ability to sue or seek injunctive

16

damages after the harm is done does little good. This position was complemented

18

Rights in Article II, Sec. 3 of the Montana Constitution. The decision to include

20

included in the Bill of Rights passed by a large majority.

15

17
19

21

t'elief before the environmental damage is done--paying someone monetaryby including the right to a clean and healthful environment in the Declaration of

the right to a clean and healthful environment as one of the unalienable rights

288. During the Constitutional Convention, there were concerns

22�mong the delegates over the constitutional rights for people under the age of24

lnsure that Montana's youth have the same fundamental rights as adults. This

23

25

Jighteen, and Article II, Section 15 in the Declaration of Rights was included toJection was adopted with broad support.
!

Fi ndi ngs of Fact, Conclusions of Law, and Order - page 85
CDV-2020-307

1

2
3

4

5

6

7

8

9

289. Delegates to the 1972 Constitutional Convention intended toadopt the strongest preventative and anticipatory constitutional environmental
provisions possible to protect Montana's air, water, and lands for present andfuture generations.

CONCLUSIONS OF LAW

1.

To the extent that any ofthe foregoing Findings ofFact

2.

This Court has jurisdiction over the parties and subject

incorporate Conclusions ofLaw or the application oflaw to fact, they areincorporated herein as Conclusions ofLaw.

10i. th"1s case.
matterm

13

address the constitutionality ofMont. Code Ann.§ 75-l-201(6)(a)(ii), which was

16

I.

11
12

14

15
17

18
19

20

The Conclusions ofLaw are conformed to the evidence

presented at trial by both parties. Mont. R. Civ. P. 15(6)(2). The Court will3.

enacted by SB 557 and addressed by both parties during trial and in trial briefing.

See, e.g., Docs. 390, 402.

PLAINTIFFS HAVE PROVEN STANDING.

A.

Plaintiffs Have Proven Injury.

4.

As described in the Findings ofFact, Youth Plaintiffs haveexperienced past and ongoing injuries resulting from the State's failure toconsider GHGs and climate change, including injuries to their physical and21

mental health, homes and property, recreational, spiritual, and aesthetic interests,

24

inaction or counterproductive action on climate change, on their own, do not

22
23

25

t�ibal and cultural traditions, economic security, and happiness.
I

5.

Plaintiffs' mental health injuries directly resulting from State

Jstablish a cognizable injury. Steel Co. v. Citizens for a Better Envt. , 523 U.S. 83,
I
Findings of Fact, Conclusions of Law, and Order - page 86
CDV-2020-307

1 07 ( 1 998). However, Plaintiffs' mental health injuries stemming from the1effects of climate change on Montana's environment, feelings like loss, despair,2

and anxiety, are cognizable injuries.

3

4

6.

Every additional ton of GHG emissions exacerbates

7.

Plaintiffs' injuries will grow increasingly severe and8.

Plaintiffs have proven that as children and youth, they are

9.

Plaintiffs have proven that they have suffered injuries that

10.

Plaintiffs suffer and will continue to suffer injuries due to5

Plaintiffs' injuries and risks locking in irreversible climate injuries.

7

irreversible without science-based actions to address climate change.

9

disproportionately harmed by fossil fuel pollution and climate impacts.

6
8

10
11

are concrete, particularized, and distinguishable from the public generally.

13

the State's statutorily mandated disregard of climate change and GHG emissions

15

equitable remedies with Mont. Code Ann. § 75- 1 -201 (6)(a)(ii).

12in the MEPA Limitation, and due to SB 557's removal of MEPA's preventative

14
16

B.

17

Plaintiffs Have Proven Causation at Trial.
1 1.

The PSC is exempted from MEPA as a matter of law. Mont.

18

Code Ann. § 75-1 -20 1 (3).220

Limitation and the State's allowance of resulting fossil fuel GHG emissions,19

12. · There is a fairly traceable connection between the MEPA

21

which contribute to and exacerbate Plaintiffs' injuries.

22

I
I

23

13.

There is a fairly traceable connection between the State's

disregard of GHG emissions and climate change, pursuant to the MEPA

24

Limitation, GHG emissions over which the State has control, climate change

impacts, and Plaintiffs' proven injuries. Unlike in Bitterrooters Inc. , the causal
!

25

2

Hereinafter, when the Court refers to Defendants or the State, the PSC is excluded.

Findings of Fact, Conclusions of Law, and Order - page 87
CDV-2020-307

1

2

relationship between the permitted activities and the resulting environmental
harms is reasonably close. Bitterrooters for Planning, Inc. v. Mont. Dep 't of3

Envtl. Quality, 2017 MT 222, ,i 25, 401 P.3d 712. The State authorizes fossil fuel6

anthropogenic climate change.

4

5

7

8

activities without analyzing GHGs or climate impacts, which result in GHG

emissions in Montana and abroad that have caused and continue to exacerbate
14.

The Defendants have the authority under the statutes by

1"hich they operate to protect Montana's environment and natural resources,

9

protect the health and safety of Montana's youth, and alleviate and avoid climate

12

which violate the Montana Constitution.

15

mixing in the atmosphere and contributing to global climate change and an

10

11

13

14

impacts by limiting fossil fuel activities that occur in Montana when the MEPA

analysis shows that those activities are resulting in degradation or other harms
15.

Montana's contributions to GHG emissions can be measured

incrementally and cumulatively both in terms of immediate local effects and by

16

already destabilized climate system.

19

contribute to climate change and Plaintiffs' injuries and reduce the opportunity to

17

18

20

21

22

23

24

25

16.

Montana's GHG contributions are not de minimis but arenationally and globally significant. Montana's GHG emissions cause andalleviate Plaintiffs' injuries.

C.

Plaintiffs Have Proven Redressability at Trial.
17.

The psychological satisfaction of prevailing in this lawsuit

does not establish redressability. Steel Co. at 107.
18.

Defendants can alleviate the harmful environmental effects

c:ifMontana's fossil fuel activities through the lawful exercise of their authority if

Findings of Fact, Conclusions of Law, and Order - page 88
CDV-2020-307

1they are allowed to consider GHG emissions and climate change during MEPA

2

review, which would provide the clear information needed to conform their5

fuel activities when inconsistent with protecting Plaintiffs' constitutional rights.

3

4

6

7

decision-making to the best science and their constitutional duties andconstraints, and give them the necessary information to deny permits for fossil,

19.

Montana's land contains a significant quantity offossil fuels

�et to be extracted. The State and its agents could consider GHG emissions and8

6limate impacts and reject projects that would lead to unreasonable degradation

11

I

9

10

ofMontana's environment.
20.

A reduction in Montana's GHG emissions that results from adeclaration that Montana's MEPA Limitation is unconstitutional would provide

12

partial redress ofPlaintiffs' injuries because the amount ofadditional GHG

15mJunes.

13

14

16

emissions emitted into the climate system today and in the coming decade will
impact the long-term severity ofthe heating and the severity ofPlaintiffs'
21.

It is possible to affect future degradation to Montana's

17

environment and natural resources and injuries to these Plaintiffs.

20

and -204 (discretion under Clean Air Act ofMontana to prohibit facilities that

18

19

21

22
23
24
25

22.

Permitting statutes give the State and its agents discretion todeny permits for fossil fuel activities. See, e.g., Mont. Code Ann. §§ 75-2-203
cause air pollution); § 75-2-211(2)(a) (DEQ to provide rules governingsuspension or revocation ofair quality permits); § 75-2-218(2) (DEQ has

discretion to deny air quality permits);§ 75-2-217(1) (DEQ to provide rules

1oveming suspension or revocation ofoperating permits); 75-20-301 (DEQ can�nlyapprove permits for Major Facility Siting Act facilities after considering
I

Findings of Fact, Conclusions of Law, and Order - page 89
CDV-2020-307

1numerous discretionary factors, including environmental impacts and public

4

oil and gas ifconsistent with the Constitution);§ 82-4-102(3)(a) (stating purpose

2

3

5

6

7

8

9

10

11

12

health, welfare, and safety); § 77-3-301 (state lands "may" be leased for coal if"in the best interests ofthe state");§ 77-3-401 (state lands "may" be leased forofsurface and underground mining and reclamation laws to vest DEQ withrulemaking authority to "either approve or disapprove" new strip mines or new
underground mines); § 82-4-227 (DEQ has wide discretion to refuse mining
permits).

23.

The State must either: 1) have discretion to deny permits forfossil fuel activities when the activities would result in GHG emissions that cause

unconstitutional degradation and depletion ofMontana's environment and natural

resources, or infringement ofthe constitutional rights ofMontana's children and13�outh; or 2) the permitting statutes themselves must be unconstitutional.

16

2020 MT 303, ,r 54, 477 P.3d 288 (citing Sunburst Sch. Dist. No. 2 v. Texaco,

14

15

24.

"[C]ourts should avoid constitutional issues wheneverpossible." Park Cnty. Envtl. Council v. Mont. Dep 't ofEnvtl. Quality,

17

Inc. , 2007 MT 183, ,r 62, 165 P.3d 1079). Under the doctrine ofconstitutional

20

emissions, unconstitutional degradation and depletion ofMontana's environment

18

19
21

22
23
24
25

avoidance, this Court clarifies that Defendants do have discretion to deny permits
for fossil fuel activities that would result in unconstitutional levels ofGHG

and natural resources, or infringement ofthe constitutional rights ofMontanans

and Youth Plaintiffs.

Ill//
/!Ill
Ill//

Findings of Fact, Conclusions of Law, and Order - page 90
CDV-2020-307

1

2

3

4

5

6

II.

MONT. CODE ANN. § 75-1-201(6)(a)(ii) IS NOT A BARRIER TO

REDRESSABILITY BECAUSE IT IS FACIALLY UNCONSTITUTIONALUNDER PARK COUNTY.
25.

Mont. Code Ann.§ 75-l -201(6)(a)(ii) eliminates thepreventative remedies available to MEPA litigants: vacatur and injunction. The

State raised Mont. Code Ann.§ 75-l -201(6)(a)(ii) during trial as a barrier to7

redressability in this case, bringing it before the Court and making the issue10

I�ec. 1(3) to provide "adequate remedies for the protection ofthe environmental

891;1navoidable.

26.

The Legislature is obligated under Article IX,

11life support system from degradation" and "to prevent unreasonable depletion14

its constitutional obligations, as are the equitable remedies without which MEPA

12

13

15
16

17
18

19

20

21

22
23

24

25

and degradation ofnatural resources." Mont. Const. Art. IX, Sec. 1(3).
27.

"MEPA is an essential aspect ofthe State's efforts to meet

28.

In Park Cnty, a unanimous Court reasoned:is rendered meaningless." Park Cnty. ,r 89.

Montanans' right to a clean and healthful environment iscomplemented by an affirmative duty upon their government to takeactive steps to realize this right. Article IX, § 1, Subsections 1 and 2of the Montana Constitution command that the Legislature 'shallprovide for the administration and enforcement' of measures to meet
the State's obligation to 'maintain and improve' the environment.
Critically, Subsection 3 explicitly directs the Legislature to 'provide
adequate remedies to prevent unreasonable depletion anddegradation ofnatural resources . . .
Without a mechanism to prevent a project from going forward untila MEPA violation has been addressed, MEPA's role in meeting theState's 'anticipat01y and preventative' constitutional obligations is

Findings of Fact, Conclusions of Law, and Order - page 9 1
CDV-2020-307

negated. Whatever interest might be served by a statute that instructs
an agency to forecast and consider the environmental implications ofa project that is already underway-perhaps analogous to a
mandatory aircraft inspection after takeoff-the constitutional
obligation to prevent certain environmental harms from arising iscertainly not one of them.

1

2
3
4
5

6

7
8

Id. ,r,r 63, 72.

29.

Pursuant to the Court's decision in Park Cnty. , Mont. Code9Ann.§ 75-1-201(6)(a)(ii) is facially unconstitutional because it eliminates MEPA
I
litigants' remedies that prevent irreversible degradation of the environment, and

11

III.

10
12

it fails to further a compelling state interest. Park Cnty. ,r,r 63, 69-72.

ALL PLAINTIFFS' CONSTITUTIONAL CLAIMS ARE

PREDICATED ON DEGRADATION OF MONTANA'S CLEAN AND

13

HEALTHFUL ENVIRONMENT.

15

Limitation and Mont. Code Ann.§ 75-l -201(6)(a)(ii) violate Mont. Const. Art.

14
16

17

18

19

20

21

22

23

24

25

,

30.

All of Plaintiffs' claims hinge on whether the MEPA

II, Sec. 3 and Art. IX, Sec. 1.
a.

The Public Trust Doctrine is already codified in theMontana Constitution in Art. IX, Sec. 3. Galt v. State, 225 Mont. 142, 144, 146,

731 P.2d 912, 913, 9 1 4 ( 1987) (citing Mont. Coal. for Stream Access v. Curran,

210 Mont. 38, 682 P.2d 163 ( 1984) and Mont. Const. Art. IX, Sec. 3(3)).
b.

Except for Plaintiffs' mental health injuries resulting

from government inaction on climate change, the alleged equal protection,

dignity, liberty, and health and safety violations all stem from harm to Montana's

I .

environment.
I

!(Ill

Findings of Fact, Conclusions of Law, and Order - page 92
CDV-2020-307

1Plaintiffs' mental health injuries resulting from2

government inaction alone do not establish a cognizable, redressable injury.

5I�, Sec. 3 and Art. IX, Sec. 1, and then find that the statutes violate the Public

3

4
6

7

8

9

10

11

c.

d.

It would be impossible for the Court to find that the

MEPA Limitation and Mont. Code Ann.§ 75-l-201(6)(a)(ii) do not violate Art.
Trust Doctrine or the rights to equal protection, dignity, liberty, or health andI
safety.
i
IV.
DETERMINING WHETHER THE CONSTITUTIONALPROVISIONS AT ISSUE ARE SELF-EXECUTING IS UNECESSARY TOI

RESOLVE THIS CONTROVERSY.
31.

It is possible to resolve this case without determining

12

�hether Art. II, Sec. 3 and Art. IX, Sec. 1 are self-executing.

15

provision (2) that implicates individual constitutional rights, courts can determinei-,:vhether that enactment fulfills the Legislature's constitutional responsibility."
Columbia Falls Elem. Sch. Dist. No. 6 v. State, 2005 MT 69, 17, 109 P.3d 257

13

14

16

17
18

19
20

21
22
23
24
25

32.

A determination that a right is non-self-executing "does notj
end the inquiry. As here, (1) once the Legislature has acted, or 'executed,' a�citing City ofBoerne v. Flores, 521 U.S. 507 (1997)).

,r

33.

"Provisions that directly implicate rights guaranteed toindividuals under our Constitution are in a category of their own.
That is, although the provision may be non-self-executing,thus requiring initial legislative action, the courts, as final
interpreters of the Constitution, have the final ' obligation toguard, enforce, and protect every right granted or secured by theConstitution . . .. "'Brown v. Gianforte, 2021 MT 149, 23, 488 P.3d 548 (citing Columbia
Falls Elem. Sch. Dist., 18 (quoting Robb v. Connolly, 111 U.S. 624, 637(1884))).

,r,r

Fi ndi ngs of Fact, Con clus ions of Law, and Order -page 93
CDV-2020-307

1

34.

Like in Park Cnty. , the question presented to the Court by

this case "is straightforward: has the Legislature met its obligation to provide

3

adequate remedies with which to prevent potential future environmental harms

6

J,ront. Code Ann.§ 75-l-201(6)(a)(ii), removes the only preventative equitable!
r_eliefavailable to the public and MEPA litigants concerned about GHGs and

2

4

5

7

8

9

10
11

12

13

14

15
16

17
18

19

20

21

22

23

24

25

when it removes what appears to be the only available legal relief positioned to
do so?" Park Cnty. ,i 78. The MEPA Limitation, especially in conjunction withclimate change, which are degrading Montana's environment.

y.
i

THE MEPA LIMITATION IS SUBJECT TO STRICT SCRUTINY.
35.

Any statute, policy, or rule which implicates a fundamental

Jight must be strictly scrutinized and can only survive scrutiny ifthe Stateestablishes a compelling state interest and that the action is nanowly tailored toI

Jffectuate that interest. Park Cnty. ,i 84.
36.

I

The MEPA Limitation is subject to strict scrutiny because it

implicates Plaintiffs' fundamental right to a clean and healthful environment.

VI.

THE MEPA LIMITATION VIOLATES THE MONTANACONSTITUTION.

A.

MEPA Limitation violates Plaintiffs' Right to a Clean and

Healthful Environment - Mont. Const. Art. II, Sec. 3, 15; Art. IX, Sec. 1.
37.

Montana's Constitution provides: "All persons are born free

Jnd have certain inalienable rights. They include the right to a clean and healthfulenvironment. . . ." Mont. Const. Art. II, Sec. 3. Consistent with the provision ofthese rights and responsibilities, the Montana Constitution further provides: "The

I

I/Ill
(Ill/

Findings of Fact, Conclusions of Law, and Order- page 94
CDV-2020-307

1

2

3

4

5

6

state and each person shall maintain and improve a clean and healthfulenvironment in Montana for present and future generations." Mont. Const.

trt. IX, Sec. 1(1).
·38.

Article II, Sec. 3 and Article IX, Sec. 1 are to be read

together, along with the Preamble to Montana's Constitution. MEIC I, 65, 77.
I
39. The right to a clean and healthful environment is a

,r,r

8

fundamental right protected by Mont. Const. Art. II, Sec. 3 and Art. IX, Sec. 1 (1).
I
MEIC I, 64.

11)ight to a clean and healthful environment is intended to protect Montana's

7

9

10

12
13

14

1

,r

40.

Montana's children under age eighteen, have a fundamental

right to a clean and healthful environment. Mont. Const. Art. II, Sec. 15. The
children and future generations.
41.

During Montana's 1972 Constitutional Convention,

c;!elegates placed significant emphasis on protecting natural resources and

15

improving Montana's environment. The Montana Supreme Court has recognized

18

MEIC I, 75 (citing Convention Transcripts, Vol. IV at 1209, Mar. 1,
language."
I

16

17

19

20
21

22

23

24

25

I

t,hat "it was agreed by both sides ofthe debate that it was the convention's
intention to adopt whatever the convention could agree was the stronger,r1972). The Montana Supreme Court has repeatedly found that the FramersIintended the state constitution contain "the strongest environmental protection

provision found in any state constitution." Park Cnty. ,42.

,r 61.

The Constitutional Framers "did not intend to merely

Jrohibit that degree ofenvironmental degradation which can be conclusively

linked to ill health or physical endangerment." MEJC I, 77. As Delegate FosterI
noted: "[I]fwe put in the Constitution that the only line ofdefense is a healthful!

,rFindings of Fact, Conclusions of Law, and Order - page 95
CDV-2020-307

1

2
3

4

environment and that I have to show, in fact, that my health is being damaged inorder to find some relief, then we've lost the battle." MEIC I, ,i 74 (citing
Convention Transcripts, Vol. V at 1243-44, Mar. 1, 1972).
43.

The right to a clean and healthful environment language in

5Montana's Constitution is "forward-looking and preventative language" which

8

ils occurrence in the first place." Park Cnty. , ,i 62.
[
44. The right to a clean and healthful environment requires

6

7

9

10

11
12

"clearly indicates that Montanans have a right not only to reactive measures after
a constitutionally-proscribed environmental harm has occurred, but to be free ofenhancement ofMontana's environment. According to the Constitutional!Delegates, "our intention was to permit no degradation from the present

13�nvironment and affirmatively require enhancement of what we have now."I
JorfEIC I, ,i 69 (quoting Convention Transcripts, Vol. IV at 1205, Mar. 1, 1972)

16complemented by an affirmative duty upon their government to take active steps

14

15

17

18
19

20

21

22
23

24

25

(emphasis in original).
45.

Montanans' right to a clean and healthful environment isto realize this right. Article IX, Sec. 1(1) and (2) ofthe Montana Constitutioncommand that the Legislature "shall provide for the administration andenforcement" ofmeasures to meet the State's obligation to "maintain andimprove" the environment. Critically, Subsection 3 explicitly directs theLegislature to "provide adequate remedies to prevent unreasonable depletion anddegradation ofnatural resources." Mont. Const. Art. IX, Sec. 1(3); Park Cnty. ,iJ 63.

I/Ill
/Ill/

Findings of Fact, Conclusions of Law, and Order- page 96
CDV-2020-307

1
2

46.

The obligations of the Legislature found in Article IX,

Sec. 1 include providing "adequate remedies for the protection of the

4life support system from degradation." Mont. Const. Art. IX,
dnvironmental
I
Sec. 1 (3).

6life support system' is all-encompassing, including but not limited to air, water,

3

5

7

8

9

10
11

12

13

14

15

16
17

18

19

20
21

22

23

24

25

,

47.

According to Delegate McNeil, "the term 'environmental

and land; and whatever interpretation is afforded this phrase by the Legislatureand courts, there is no question that it cannot be degraded." MEIC I, ,r 67 (citing
Convention Transcripts, Vol. IV at 1201, Mar. 1 , 1 972) (emphasis in original).
48.

Montana's constitutional right to a clean and healthful

Jnvironment prohibits environmental degradation that causes ill health orphysical endangerment and unreasonable depletion or degradation of Montana'
Aatural resources for this and future generations:

Our conclusions in MEIC I are consistent with the constitutional
text's unambiguous reliance on preventative measures to ensure that
Montanans' inalienable right to a 'clean and healthful environment'
is as evident in the air, water, and soil of Montana as in its law
books. Article IX, Section 1 , of the Montana Constitution describes
the environmental rights of 'future generations,' while requiring'protection' of the environmental life support system 'from
degradation' and 'prevent[ion of] unreasonable depletion anddegradation' of the state's natural resources. This forward-looking
and preventative language clearly indicates that Montanans have aright not only to reactive measures after a constitutionally-proscribed
environmental hann has occurred, but to be free of its occurrence inthe first place.
Park Cnty., ,r 62.
I

49.

Based on the plain language of the implicated constitutional

provisions, the intent of the Framers, and Montana Supreme Court precedent,

Findings of Fact, Conclusions of Law, and Order - page 97
CDV-2020-307

1

climate is included in the "clean and healthful environment" and "environmental

2

life support system." Mont. Const. Art. II, Sec. 3; Art. IX, Sec. 1.

4

unconstitutionally degraded and depleted due to the current atmospheric

3
5

6

50.

Montana's climate, environment, and natural resources aredoncentration of GHGs and climate change.
51.

The right to a clean and healthful environment allows

7plaintiffs to obtain equitable relief before harm occurs. According to the Supreme

9

When considering which remedies are 'adequate' in this context,
we note that equitable relief, unlike monetary damages, can avert
harms that would have otherwise arisen. It follows that equitablerelief must play a role in the constitutional directive to ensure
remedies that are adequate to prevent the potential degradation that
could infringe upon the environmental rights of present and future
generations. We are not alone in this conclusion. As Delegate Mae
Nan Robinson pointed out during the 1972 Constitutional
Convention: if you're really trying to protect the environment, you'dbetter have something whereby you can sue or seek injunctive relief
before the environmental damage has been done; it does very little
good to pay someone monetary damages because the air has beenpolluted or because the stream has been polluted if you can't change
the condition of the environment once it has been destroyed.

8

10

11

12

13

14
15

16

17
18

19

20

21

22

23

24
25

Court:

fark Cnty. ,r 64 (citing MEIC I ,r 71).
52. "The essential purpose ofMEPA is to aid in the agency

decision-making process otherwise provided by law by informing the agency andthe interested public of environmental impacts that will likely result from agency
actions or decisions." Bitterrooters Inc. ,r 18.

53. "MEPA is an essential aspect of the State's efforts to meetI
its constitutional obligations." Park Cnty. , ,r 89; § 75-1-102, MCA.
I
Findings of Fact, Conclusions of Law, and Order - page 98
CDV-2020-307

1

54.

The stated policy ofMEPA makes clear that the State should

2

use "all practicable means" "so that the state may: (a) fulfill the responsibilities

4

ensure for all Montanans safe, healthful, productive, and aesthetically and6the environment without degradation, risk to health or safety, or other undesirable

35

df each generation as trustee of the environment for succeeding generations; (b)culturally pleasing surroundings; (c) attain the widest range of beneficial uses of7

and unintended consequences . . .." § 75- 1 - 1 03 , MCA.

9

is failing to meet their affirmative duty to protect Plaintiffs' right to a clean and

8

10
11

12

55.

By enacting and enforcing the MEPA Limitation, the State

healthful environment, and to protect Montana's natural resources fromunreasonable depletion.
'

56.

The MEPA Limitation categorically limits what the13

agencies, officials, and agencies tasked with protecting Montana's clean and15

ery purpose of MEPA, which is to aid the State in meeting its constitutionalv1o ligation to prevent degradation by "informing the agency and the interested
Jbpublic of environmental impacts that will likely result" from State actions.

14
16

17
18

19

20
21

22

Jealthful environment can consider. The MEPA Limitation conflicts with the

4itterrooters Inc. 1 8 ; § 75- 1 - 1 02(1 ), MCA ("The legislature, mindful of its
constitutional obligations under Article II, section 3, and Article IX of the,rMontana constitution, has enacted the Montana Environmental Policy Act . . .

[to] provide for the adequate review of state actions in order to ensure that: (a)Iehvironmental attributes are fully considered . . .. ").

23

//Ill

25

II(!!

24

I

//Ill

Findings of Fact, Conclusions of Law, and Order - page 99
CDV-2020-307

1

2

57.

The plain language ofthe MEPA Limitation bars agencies

58.

The MEPA Limitation is unconstitutionally contributing tofrom considering GHG emissions and climate impacts for any project or

3

Jroposal, even to assess whether the project complies with the Montana

6

the depletion and degradation ofMontana's environment and natural resources

4
5

7

Constitution.

and contributing to Plaintiffs' injuries. The MEPA Limitation deprives Plaintiffs

9

dftheir constitutionally guaranteed rights under Mont. Const. Art. II, Sec. 3, andI
Art. IX, Sec. 1.

12

dr be consistent with the Montana Constitution, the MEPA Limitation violates

8

10

11
13

14
15

16

17
18

19

59.

I

By prohibiting consideration ofclimate change, GHG

emissions, and how additional GHG emissions will contribute to climate change

Plaintiffs' right to a clean and healthful environment and is facially�nconstitutional.
I

/

B.

The MEPA Limitation Does Not Pass Strict Scrutiny.
60.

The MEPA Limitation infringes on fundamental rights andmust pass strict scrutiny. Mont. Cannabis Indus. Ass 'n v. Montana, 2012 MT

I,r 1 6, 366 Mont. 224, 286 P.3d 1161 ("Mont. Cannabis Indus Ass 'n(2012)"); see also Kloss v. Edward D. Jones & Co. , 2002 MT 129, ,r 52,

201,

I

22

I
310 Mont. 123, 54 P.3d 1.
I
61. Under strict scrutiny, "the government must show that the/law is narrowly tailored to serve a compelling government interest." Mont.

25

igovernmental interest.
compelling
I

20

21

23

24

I

Cannabis Indus. Ass 'n (2012),
62.

,r 16.

The State failed to show that the MEPA Limitation serves a

Findings of Fact, Conclusions of Law, and Order - page 100
CDV-2020-307

1

63.

The State did not put forward any evidence of a compelling

64.

Undisputed testimony established that Defendants could2

governmental interest for the MEPA Limitation.

4

evaluate "greenhouse gas emissions and corresponding impacts to the climate in

3
5

6

7

!

the state or beyond the state's borders" when evaluating fossil fuel activities.

Indeed, Defendants have performed such evaluations in the past.
65.

Undisputed testimony established that clean renewable

66.

Even if the State had established a compelling interest for

67.

The MEPA Limitation neither serves a compelling state

8I�nergy is technically feasible and economically beneficial in Montana.

10

the statute, the MEPA Limitation is not narrowly tailored to serve any interest.

12

interest nor is narrowly tailored and fails strict scrutiny.

9

11
13

14
15

16

I

I

1.

ORDER

Based upon the foregoing Findings of Fact and Conclusionsof Law the Court determines and declares that:

17

2.
i
addressed herein.

19

traceable to the MEPA Limitation.

21

proven to be a substantial factor in causing climate impacts to Montana's

18

20

22
23
24
25

The Youth Plaintiffs have standing to bring the claims

3.

Montana' s GHG emissions have been proven to be fairly

4.

Montana's GHG emissions and climate change have beenbnvironment and harm and injury to the Youth Plaintiffs.

y111
y111

f11/

Findings of Fact, Conclusions of Law, and Order - page 10 1
CDV-2020-30715.

This judgment will influence the State's conduct by

2

invalidating statutes prohibiting analysis and remedies based on GHG emissions

4
5

IIlJUry.

7

Jill contribute to climate change or be consistent with the Montana Constitution,

3

6
8

9

10

Jnd climate impacts, alleviating Youth Plaintiffs' injuries and preventing furtherI

6.

By prohibiting analysis of GHG emissions andcorresponding impacts to the climate, as well as how additional GHG emissionstµe MEPA Limitation violates Youth Plaintiffs' right to a clean and healthfulI�nvironment and is unconstitutional on its face.
7.

Plaintiffs have a fundamental constitutional right to a clean11

Jnd healthful environment, which includes climate as part of the environmental

13

8.
The 2023 version of the MEPA Limitation, Mont. Code/Ann. § 75- 1 -20 1 (2)(a), enacted into law by HB 971 , is hereby declared

12
14
15

16

17

18

19

20
21

22
23

24
25

life-support system.

Jnconstitutional and is permanently enjoined.
I

9.

Mont. Code Ann. § 75- l -201 (6)(a)(ii), enacted into law by

SB 557 from the 2023 legislative session, is hereby declared unconstitutional andis permanently enjoined because it removes the only preventative, equitable reliefIlvailable to the public and MEPA litigants.
1 0.

In addition to the findings, conclusions, and declarations set

forth above, injunctive relief is appropriate, prohibiting Defendants from actingin accordance with the statutes declared unconstitutional.
1 1.

prevailing parties.

Judgment is hereby found in favor of the Plaintiffs as

YI!//

Findings of Fact, Conclusions of Law, and Order - page 102
CDV-2020-307

I

12.

The Youth Plaintiffs requested an award of reasonable2

attorneys' fees and costs. (Doc. I at 104.). Pursuant to Rule 54 (d), Mont. R. Civ.

4

documentation in support of their request for fees and costs, within fourteen days

3

5

6

7
8

9

10

P., Youth Plaintiffs shall submit their motion for fees and costs andIIof the date of this Order. Defendants shall have fourteen days thereafter to

respond, and shall have the opportunity to request a hearing pursuant to theprovisions of Rule 43 (c), Mont. R. Civ. P. The Court reserves jurisdiction toi�sue its final judgment to include the issue of attorneys' fees and costs.
DATED this/4

day of August 2023.

11

12

13

14
15

16
17
18
19

20

21

22

23
24
25

cc:
Melissa Hombein, via email: hornbein@westemlaw.org
t3arbara Chillcott, via email: chillcott@westemlaw.org
Roger Sullivan, via email: rsullivan@mcgarveylaw.com
Dustin Leftridge, via email: dleftridge@mcgarveylaw.com;Nathan Bellinger, via email: nate@ourchldrenstrust.org
Mathew dos Santos, via email: mat.dossantos@ourchildrenstrust.org
Andrea Rodgers, via email: andrea@ourchildrenstrust.org
fhilip L. Gregory, via email: pgregory@gregorylawgroup.com
David M.S. Dewhirst, via email: David.dewhirst@mt.gov
Derek Oestreicher, via email: derek.oestreicher@mt.gov
Timothy Longfield, via email: timothy.longfield@mt.gov
Morgan Varty, via email: morgan.varty@mt.gov
Emily Jones, via email: emily@joneslawmt.com
Lee McKenna, via email: lee.mckenna@mt.gov:Mark Stermitz, via email: mstermitz@crowleyfleck.com
KS/sm/CDY-2020-307 Held FCO

Findings of Fact, Conclusions of Law, and Order - page 103
CDV-2020-307