Montana Environmental Information Center director of policy and legislative affairs Anne Hedges prepares to take the stand in the Held v. Montana trial on Thursday, June 15, 2023. (Photo by Blair Miller)
A policy expert and longtime lobbyist with the Montana Environmental Information Center testified Thursday at the Montana climate change trial about what she said has been a backwards slide by the state in terms of fighting climate change and pushing back on energy projects that emit large amounts of greenhouse gases.
In addition, a greenhouse gas emissions accounting scientist told the court Montana is responsible for tens of millions of tons of carbon dioxide emissions each year – the sixth-most in the U.S. and more than 100 other countries – and like other climate experts who have testified so far this week in the Held v. Montana trial, that any reduction in emissions by the state would be beneficial to both its residents and the world population.
“I think this past (legislative session) provides a number of examples in which the legislature succeeded in making it more difficult for clean energy development, created obstacles for renewable energy, and is putting the gas on fossil fuel development,” said MEIC director of policy and legislative affairs Anne Hedges.
She and Peter Erickson, the emissions accounting scientist with the Stockholm Environment Institute, based in Seattle, were the two expert witnesses brought in to testify on the fourth day of the trial, in which 16 youth plaintiffs are suing the state of Montana alleging its close relationship with the fossil fuel industry violates their constitutional rights to a clean and healthful environment.
Hedges, who has worked for the MEIC in several capacities for the past 30 years, detailed the state’s history with climate change, the Montana Environmental Policy Act, the mining and burning of fossil fuels, and the state’s permitting process dating back to the 1960s.
She said through her legislative and research work with the MEIC that she believes there is evidence the state has known and understood for decades that global warming was a side effect of the burning of fossil fuels, and while some efforts were made along the way to try to study and respond to climate change, those efforts have all but stopped since the MEPA limitation was put in place in 2011 and since the Gianforte administration took office.
Hedges added that she does not believe there is anyone in Montana who knows more about Montana’s fossil fuel energy practices.
Hedges detailed several large power plants, pipeline infrastructure, and mining efforts that she said have for years emitted millions of tons of CO2 into Earth’s atmosphere and which received permits from the state – many of which over the past 12 years involved the state rebuffing requests from the MEIC to undertake greenhouse gas emissions reviews before granting the permits.
Dating back to 1968, Hedges said, Montana lawmakers and executives have acknowledged the state’s climate was warming. At the time, a report written stated that while a warmer climate in Montana “sounds enticing,” it also “could spell disaster.”
MEPA was written and put into law in 1971 – a year before the Constitutional Convention that put the language requiring a clean and healthful environment for future generations into the state’s most important document, which delegate Mae Nan Ellingson, who helped write that section, testified about earlier this week. Hedges said in 1999, the Montana Supreme Court concluded that the provisions of that part of the constitution were “anticipatory and preventative.”
In the early 1990s, the legislature developed and adopted a state energy policy, which lawmakers repealed through a bill this year. The energy policy was an original target of the lawsuit, filed in 2020, before it was repealed this spring by lawmakers and the governor.
At the time the policy was written, Hedges said the state was trying to determine its best use of resources “considering the negative consequences of certain resources” like fossil fuels.
The Intergovernmental Panel on Climate Change released its first two reports in 1990 and 1995, which she said the MEIC brought to the attention of lawmakers and governors, whom she said were aware of the reports’ findings.
In the 2000s, Gov. Brian Schweitzer asked the Department of Environmental Quality in a letter raising concerns about climate change and asked the director of the department to come up with a plan to reduce greenhouse gas emissions, she said. In the years that followed, the DEQ issued reports on greenhouse gas inventories and projections from 1990 to 2020, including the 2007 Montana Climate Action Plan, which she said found emissions were steadily increasing and confirmed fossil fuels were the primary driver.
The plan issued dozens of recommendations on how the state could decrease emissions, including reducing emissions to 1990 levels by 2020 and to 80% below 1990 levels by 2050.
“I had great hope the state was moving forward, taking climate change seriously, and was going to implement a plan moving forward to reduce emissions to the degree necessary,” Hedges said.
In the first decade of the 2000s, she said, the state was considering climate impacts when considering projects, which led to multiple large power plants being shelved after what Hedges called vast public opposition and pressure because of the emissions projections.
“It gave the public and legislators knowledge about the impact of a proposal, allowed them to comment, to provide information on the severity of impacts, and alternatives available to the project,” she told the court.
But the state was also still mostly issuing permits despite concerns about emissions, which she said flew in the face of the reports that said the state should be reducing emissions.
“It was a real disconnect,” Hedges said.
In 2011, due to what Hedges called a “real backlash” against some of the projects being halted, the legislature put the MEPA limitation into law, which said the state could not review impacts beyond Montana’s borders when considering permits – what is now called the “MEPA limitation.” Hedges said she testified in opposition to the bill creating the limitation, saying it violated constitutional obligations of Montanans’ rights to participate, to know, and to a clean and healthful environment.
She said it was “clear” talking to legislators and lobbyists at the time the limitation was put in “to preclude consideration of climate change.”
“They hoped it would prevent the state from having to disclose those impacts, from allowing the public to comment, and hopefully would help projects get built,” she told the court Thursday. “… The legislature did the bidding of the fossil fuel industry, and the governor signed the bill.”
She said there were multiple occasions since then when the MEIC tried to get greenhouse gas emissions included in the MEPA process before a permit was granted, but that she is not aware of a single fossil fuel project permit the state denied, and the emissions studies were not completed.
The state released a 2017 climate assessment that analyzed the impacts of climate change on parts of Montana’s economy, and Democratic Gov. Steve Bullock in 2019 issued an executive order about climate change’s effects in Montana, asking the DEQ to come up with a plan to reduce emissions. That plan was released in 2020 along with 30 recommendations on how the state could reduce emissions, Hedges said.
But she said she does not believe the state has implemented any of those recommendations. Asked what Republican Gov. Greg Gianforte, who took office in January 2021, had done with the plan, Hedges said: “I believe he put it on the shelf.”
And nearly three years after the youth plaintiffs filed their lawsuit, and after a Yellowstone County judge this spring said greenhouse gas emissions should have been included in an environmental review of a NorthWestern Energy power plant in Laurel, the legislature amended the MEPA limitation again this year to say an environmental review of a project could not include evaluations of greenhouse gas impacts and climate impacts inside or outside of Montana.
Another bill Hedges testified against, Senate Bill 557, which was signed into law, was amended to include the same language and also limits a court’s ability to stop a permit from going forward if an agency does not disclose a project’s impacts on the environment.
Hedges has long argued that MEPA is not simply procedural – as the state believes – but rather a companion to permitting statutes intended to inform regulatory agencies and facilitate public comment on projects.
“They are integrally related because when you allow that type of disclosure in the MEPA analysis, you create a body of information the agency can use in permitting to make better decisions,” she told the court.
She said the current limitation allows agencies “to turn a blind eye” to alternatives for projects and any possibility of a project emitting fewer greenhouse gases, as well as to analyzing if a project would be too harmful to proceed – something she said she believes agencies “absolutely have the skill and the information necessary” to undertake.
“A fossil fuel project proposal could be the least reasonable but wouldn’t appear to be so because they are not considering alternative things,” she said. “It forces the state to ignore the impact that is the biggest crisis of our day.”
Because lawmakers and governors have limited what can be analyzed when it comes to fossil fuel permitting, Hedges said she believes they have limited opportunities for public comment in violation of the constitution and created a world for the plaintiffs that is antithetical to one that will keep their future Montana the same as, or better than, the one they grew up with.
“Without some interpretation that a clean and healthful environment includes a clean atmosphere, I don’t believe there is any hope before the crisis really does rain down upon us,” she said. “I think we should have the judicial branch weigh in.”
Peter Erickson, a researcher with the Stockholm Environment Institute who has worked on greenhouse gas accounting for more than 14 years and published dozens of papers, was called as an expert witness for the plaintiffs to detail greenhouse gas emissions in Montana.
He looked at three facets of fossil fuel activity in Montana – what gets extracted here, what is consumed here, and what is transported through the state or refined here. He used 2019 data, which he said was currently the most comprehensive dataset.
His presentation showed 32 million tons of carbon dioxide from fossil fuels were consumed in Montana that year, while 70 million tons were extracted, including some overlap between the two – like the coal mined in Montana used to feed the power plants in Colstrip and elsewhere. Further, he estimated there were at least 80 million tons of fossil fuels transported through or refined in Montana before being sent elsewhere.
Erickson said the 32 million tons burned off or consumed in Montana put it sixth among U.S. states that year and was more than in 100 other countries. He said Ireland also burned 32 million tons that year but has a population of 6 million compared to Montana’s 1.1 million.
The state’s total annual CO2 emissions from fossil fuels that year, Erickson said, put it on par with countries like Argentina, the Netherlands and Pakistan, all of which have much larger populations.
He called Montana’s emissions “disproportionately large” given its population and said while it appeared, as the state claims, that Montana has made some efforts since 2019 to curb some of its emissions, the fracking boom, and efforts this spring to continue permitting fossil fuel projects show it is likely to continue to emit more greenhouse gases into the atmosphere.
“Even by the most narrow definition of its emissions, I can’t make any other conclusion other than Montana’s emissions are significant,” Erickson told the court.
He also said that reports show Montana has the largest coal deposits in the nation and hundreds of millions of oil and gas reserves that could further be tapped by the government if it continues to disregard emissions and push forward with fossil fuel projects.
Erickson also rebutted testimony from two planned state witnesses about greenhouse gases, emissions data, and the effects of climate change in Montana that the witnesses are likely to discuss next week, pushing back on their claims that current emissions are “minuscule” or “not meaningful.”
“For them to make their own judgements about that being minuscule seems to be misleading and to misrepresent the nature of science and international cooperation on climate change,” Erickson said.
When attorneys for the state pushed back against his data and characterizations that Montana should analyze emissions and start to reduce them, arguing again that Montana accounts for a small share of global emissions and can make little difference on that scale, Erickson said that was not the case.
“The idea Montana would be acting on its own doesn’t stand up to me because there is a global effort among other nations and an effort among U.S. states to work together, share policy, and amplify the effects of work on emissions,” he said.
Erickson told state attorneys and the court that Montana should adhere to the latest IPCC report out earlier this year which said that every increment of global warming will create broader extremes in the climate and that government action at all levels plays a “crucial” role in shifting toward a more sustainable world.
“Montana’s emissions are going to contribute to climate change irrespective what other countries do. Every ton matters equally,” he said. “That means it doesn’t really matter to the atmosphere whether Montana’s emissions are bigger or smaller than someone else’s. They matter on their own.”
Attorneys for the plaintiffs are expected to finish questioning their witnesses and the plaintiffs on Friday before the state starts to call its witnesses on Monday. The trial is slated to run through the end of next week.
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