Plaintiffs’ attorney Phil Gregory asks questions of state expert witness Phil Gregor in the Held v. Montana trial on Monday, June 19, 2023. (Photo by Blair Miller, Daily Montanan)
Attorneys for the state of Montana rested their case Monday in the youth climate trial after calling the Department of Environmental Quality director and one of its division directors to the stand, along with a lone expert witness who presented data on greenhouse gas emissions that the plaintiffs’ attorneys deemed to be incorrect.
Along with a few procedural matters regarding what evidence can be submitted for Judge Kathy Seeley’s consideration, attorneys for the state as well as the 16 Montana youth who sued are expected to deliver their closing remarks in the Held v. Montana trial on Tuesday. The plaintiffs’ attorneys said they might call a witness or two back to the stand to rebut testimony made by the state’s witnesses and will submit a witness deposition.
After attorneys for the 16 youth plaintiffs called many of the plaintiffs themselves – as well as expert witnesses on climate change, renewable energies, energy policy in Montana, and children’s physical and mental health – to testify in the case last week, the state’s attorneys called only three witnesses Monday before resting their case.
The plaintiffs allege the state is violating their constitutional rights to a clean and healthful environment for current and future generations by explicitly putting into law that the state cannot consider greenhouse gas emissions and climate effects when conducting environmental reviews on energy and mining projects and when considering whether to issue permits.
They are asking Seeley to deem what they call the “limitation” to the Montana Environmental Policy Act – the part of the law that says the state cannot consider greenhouse gas emissions and climate impacts – to be unconstitutional.
Most of the questions posed to DEQ Director Chris Dorrington and Sonja Nowakowski, the director of the Air, Energy and Mining Division within DEQ, by attorneys for the state surrounded the state’s ongoing claim that MEPA is procedural and that underlying permitting statutes – the Clean Air Act of Montana and the Strip and Underground Mine Siting Act among them – are what speak to the provisions of the state constitution that guarantee a right to a clean and healthful environment.
Dorrington has been the director of DEQ since the Gianforte administration took office in January 2021. He previously held the job Nowakowski currently holds, starting as division administrator in June 2016, he said, after 10 prior years with the Department of Transportation.
He told the court that it is the underlying permits that guide the agency and provide requirements when it comes to issuing permits – and that the changes to the MEPA limitation the legislature made in May when it passed, and Gov. Greg Gianforte signed, House Bill 971 – leave the department with no choice but to follow the law.
He cited statute that outlines the purpose of MEPA, highlighting a passage that says agencies “may not withhold, deny, or impose conditions on any permit” and another that says the statute only provides DEQ with authority as stated in existing statute, to back up his claim.
The state continues to allege, as it has throughout the case and in hearings and filings over the past two months, that since lawmakers changed the MEPA “limitation,” the only redress the plaintiffs could have would be to challenge actual permitting decisions, though few have been made since the new law took effect.
The plaintiffs originally filed the lawsuit in March 2020, when the former version of the MEPA limitation, added to law in 2011, was on the books, along with a state energy policy that lawmakers also repealed this session ahead of the trial. That forced the dismissal of the claims in the case involving the energy policy.
Both Dorrington and Nowakowski said they had never before the trial heard the law referred to as the “MEPA limitation,” but Nowakowski acknowledged there “certainly is a limitation on MEPA.” Dorrington also told the plaintiffs’ attorneys he “was not deeply familiar” with the work of the Intergovernmental Panel on Climate Change, whose reports on climate change have been the basis of the testimony of most of the scientific experts who testified for the plaintiffs.
Nowakowski, who for 15 years before taking the division administrator job worked as a research analyst on energy and environmental policy in the legislature’s environmental policy office and as the research director for the Office of Research and Policy, similarly testified that DEQ simply follows the law when issuing permits. She also said since the current MEPA limitation does not allow the state to analyze greenhouse gas and climate impacts, the department’s hands are tied.
Witnesses for the plaintiffs last week showed that the department used to consider greenhouse gas impacts for projects in the 2000s, after which several proposals were shut down because of opposition from the public, as Montana Environmental Information Center policy and legislative affairs director Anne Hedges testified.
Nowakowski drafted the 2011 MEPA limitation for a senator, which said that the state could not analyze emissions to outside of Montana when considering permitting projects, and which lawmakers amended this spring in response to a Yellowstone County judge’s ruling that said the state failed to look into greenhouse gas emissions projections for a NorthWestern Energy power plant in Laurel.
She discussed data from the U.S. Environmental Protection Agency that showed Montana had a gross fossil fuel emissions drop in 2020, though lawyers for the plaintiffs pointed out that was the first year of the COVID-19 pandemic, when emissions generally dropped nationwide because of the pause in transportation, among other things.
She said if the state lost the case, she believes it could “potentially change” what happens under environmental reviews involving MEPA, but that the agency still could not consider greenhouse gas or climate impacts because of the newly amended law.
“It’s procedural. It’s doesn’t provide us with the authority to condition or modify, or approve or deny, a permit. That lies solely within the individual (permitting) acts,” Nowakowski said. But she also added that those permitting statutes are also mostly silent when it comes to greenhouse gas and climate impacts, which she said she believes means those still could not be analyzed under the law even if the limitation is struck down.
When plaintiffs’ attorney Barbara Chillcott asked Nowakowski if greenhouse gas emissions harm the environmental life support system and degrade Montana’s natural resources, she on both occasions answered that she is “not a scientist.” But she said that while she believes the burning of fossil fuels are indeed the largest contributor to greenhouse gas emissions, she does not believe that is something DEQ can look at when considering permits.
“I believe there is no authority to regulate climate change or greenhouse gases in those statutes,” she told the court.
Chillcott closed her cross-examination of Nowakowski by reading from her deposition, asking her if it was true she said she staked her career on having an opinion on climate change that fossil fuels contributed to global warming and climate change.
“That’s what I said in my deposition,” she said.
Before the state called its last witness of the trial, Assistant Attorney General Michael Russell motioned to essentially remove Gianforte, the Department of Transportation, the Department of Natural Resources and Conservation, and the Public Service Commission from facing the court order in the case, arguing the plaintiffs had not presented evidence against them as defendants.
Seeley denied their request and another similar one, saying they had gone through most of the case and that she would consider all of the evidence presented with the defendants at hand.
“We’re far enough along here; we might as well finish up,” she said.
The final witness the state called was Terry Anderson, a fellow at Stanford University’s Hoover Institution and professor at Montana State University who proclaims himself to be a founder of so-called “free market environmentalism” and identifies himself as a “climate economist.”
The attorneys for the plaintiffs almost immediately objected to his testimony, which involved him presenting data about Montana’s greenhouse gas emissions, arguing that he is an economist and not a climate scientist.
Seeley allowed the state to continue their questioning of Anderson since he was reading data purportedly off the Energy Information Administration’s website.
Anderson argued global greenhouse gas emissions in 2020 were 34.8 gigatons, while they were 36.8 gigatons in 2022, citing the EIA data. He then said that Montana’s emissions – which he narrowed to the location where carbon is consumed – were 0.0262 gigatons in 2020 and 0.036 gigatons in 2022, which he provided as seven hundredths of one percent and eight hundredths of one percent of global emissions those years, respectively.
But his testimony was almost immediately flipped on its head.
Plaintiffs’ attorney Phil Gregory pointed out the numbers that Anderson originally submitted in a report last October contained data that was incorrect, which Anderson said had latter been “corrected” before he was deposed in the case.
Gregory told Anderson he had changed the metric between his two submissions, from million metric tons of CO2 to gigatons of CO2, which make the numbers appear smaller compared to global emissions. He further changed one of the data points for 2022, Gregory said, which Anderson confirmed.
Anderson said he was being paid $500 an hour by the state to be an expert witness in the case. When asked how many billable hours he had already accrued, he said he didn’t know, but assumed it was at least 25 hours, for a bill of at least $12,500.
After Gregory pressed on about the changing data Anderson presented, Seeley asked him where he was headed with the questioning and if he was going to show the court Anderson’s numbers were incorrect.
“Yes, Your Honor,” he replied emphatically. “Absolutely 100% wrong.”
Gregory put up slides on the monitor in the courtroom comparing the data Anderson had submitted in the case. The initial set stated that it showed Montana’s carbon dioxide emissions, while the updated submission for Anderson stated the data came from the Mountain West region. But the numbers on each were the same.
“From the Mountain region estimates, I made a projection of Montana emissions. …. I made a calculation of the rate at which Montana emissions would decline based on the projections I made. It’s not what I testified about, but I have done that,” Anderson told Seeley.
Gregory then pushed Anderson about his claim Montana’s emissions were going down – having him admit the data for 2022 shows higher emissions than the 2020 data.
“Clearly, the second number is larger than the first number,” Anderson said.
There was little further discussion in the courtroom afterward, as the two sides and Seeley settled on a schedule for Tuesday in which the sides will square up their evidence submissions, read one more plaintiff witness deposition into the record, and conclude the trial with 10 minutes each of closing arguments.
After the hearing, Our Children’s Trust attorneys Julia Olson and Mat dos Santos said they were pleased with how the trial played out. Olson said she did not expect Seeley to issue a ruling in the case for at least a month, but both said they were feeling positive about the anticipated ruling.
“Yeah, I think we’re expecting to win this one,” dos Santos said.
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