Leave Policy Making To Lawmakers

Leave Policy Making To Lawmakers

"It’s clear the proper place to address the multifarious issues raised by global climate change that concern the plaintiffs is within the democratic processes of our representative legislature — not the courts."

At least nine groups have filed friend-of-the-court briefs for the high-profile Held v. Montana case currently before the Montana Supreme Court. My own organization, Frontier Institute, was among those who submitted a brief. Those filing briefs highlight concerns about impacts to Montana jobs, the economy, and even tax revenues as a result of Held. The common message to the court was this: leave policy-making to lawmakers.

The unusually high number of briefs filed in this case underscore what’s at stake. This is a monumental court case that could radically shape Montana’s economic future. Upholding Held could unleash endless litigation on nearly all economic activity in Montana subject to an environmental review, providing the ultimate veto authority to radical groups determined to stop our most critical projects. This has serious implications for the rule of law and future economic prosperity.

To refresh your memory on Held: a landmark 2023 district court ruling on this case struck down two recent changes to Montana’s environmental permitting laws and determined that 16 youths were injured by the state’s contribution to global climate change, and therefore had standing to sue the state. This decision was a first-of-its-kind ruling in a nationwide campaign of similar “children’s suits” over climate policy and against energy development.

As many of the groups filing briefs point out, the real question raised by this case is what role the courts should play in developing public policies to address global climate change. The answer is none.

The separation of powers is crucial to limiting the government’s power and protecting our freedoms. As James Madison said, allowing powers to accumulate in any one government body is “the very definition of tyranny.”

Setting energy and environmental policy for the state involves important public policy decisions that should be debated and ultimately decided by the people’s representatives in the legislature.

The Constitution reserves the judicial branch only the judicial power. A fundamental limitation on judicial power is that courts only weigh in on actual “cases” and “controversies” and should not decide inherently “political questions” of public policy. At a minimum this requires that plaintiffs prove standing — an individual injury, caused by defendants’ actions (not society in general), which a court of law could remedy.

So what are the plaintiffs’ injuries alleged in this case? A 2-year-old’s feeling of “loss, despair, and anxiety.” “Fear and loss” due to glaciers melting. A teen losing sleep worrying about the fate of the pika.

These injuries are claimed to be the result of global climate change, driven particularly by the cumulative effect of anthropogenic carbon dioxide emissions. This implicates every person on earth for the last 200 years — everyone who has cooked food, heated their homes with wood or fossil fuels, or even simply breathed out carbon dioxide into the atmosphere.

Can the Held plaintiffs prove their climate change-induced anxiety etc. was caused by specific actions taken by Montana government and not society in general? No way. Montana is responsible for approximately zero percent of total global emissions. Is there an action a court could take to stop or reverse global climate change to alleviate the claimed injuries? Absolutely not.

It’s clear the proper place to address the multifarious issues raised by global climate change that concern the plaintiffs is within the democratic processes of our representative legislature — not the courts.

Thankfully, there are lots of opportunities to advance sound public policy via the legislature to address climate change and improve our environment without destroying Montana’s economy. The court should leave the policy-making to the lawmakers.

This column originally appeared in Lee Newspapers

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