Story originally published in DeSmog
The U.S. Department of Justice is asking a federal district court in Oregon to put an end to the landmark constitutional youth climate lawsuit Juliana v. United States after the court reactivated the litigation earlier this month.
The case, which was originally filed in 2015 and alleges constitutional violations stemming from the federal government’s ongoing support of climate-destabilizing fossil fuels, had nearly made it to trial twice before. But after the Obama administration failed in the government’s initial bid to get the case dismissed, unprecedented legal tactics deployed by the Trump administration derailed the proceedings and a federal appeals court eventually dismissed the case in January 2020.
On June 1, Judge Ann Aiken of the U.S. District Court in Oregon issued a long-awaited ruling allowing the case to proceed under a revised version of the complaint. In it the plaintiffs are seeking a court declaration of constitutional violations, rather than a declaration and an order for the government to develop what the plaintiffs’ lawyers call a climate recovery plan.
However, the DOJ under the Biden administration appears to be resuming the fight against the 21 youth plaintiffs who are seeking to force the U.S. government to face trial and answer to their evidence of climate science. Government lawyers filed a motion to dismiss the lawsuit on June 22. They claim the revised complaint is virtually the same as the original and the appellate court’s order dismissing the case requires the district court to execute that order and end the lawsuit.
Attorneys representing young people in climate lawsuits against governments say that bringing climate science into courts is critical to protecting the youngest generations, who will disproportionately experience increasing climate damages but are unable to influence the political branches’ response to the climate crisis.
“Children can’t affect the politics. So they have to rely on the facts and the evidence in a court, because politicians will ignore them,” attorney Phil Gregory told DeSmog. “But given what’s happening to the climate, we can’t ignore the effect on children. That’s why we need to get before the third branch of government that takes the evidence and applies it to the constitution.”
The federal Juliana climate case contends that the U.S. government has long perpetuated a fossil fuel–dependent energy system despite clear knowledge of the climate consequences, thereby contributing to dangerous climate change and violating young people’s fundamental constitutional rights. In a November 2016 order rejecting the government’s initial attempt to dismiss the case, Judge Aiken stated: “I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society.”
In its latest request to terminate the lawsuit, the DOJ argues that no such constitutional right exists. According to government lawyers, “interests in the climate are unlike the particularized personal liberty or personal privacy interests of individuals the Supreme Court has previously recognized as being protected by fundamental rights.” DOJ also argues that the 21 youth plaintiffs are not uniquely endangered by climate change, that “general degradation of the global climate” does not result in “immediate, direct, physical, and personal harms” like physical assault or rape, and that a court declaration finding government conduct to be unconstitutional would fail to remedy plaintiffs’ alleged injuries as it would not in itself repair the destabilized climate system.
In her June 1 order, Judge Aiken stated to the contrary that “a declaration that federal defendants’ energy policies violate plaintiffs’ constitutional rights would itself be significant relief.” In its 2020 decision to dismiss the case, a Ninth Circuit Court of Appeals panel had determined courts could not order the government to undertake decarbonization measures aligned with climate science, since that would involve complex policy matters. Aiken, however, reasoned that a court declaration pertaining to alleged constitutional violations is “squarely within” the authority of the judiciary to grant, thereby allowing the narrower revised complaint to proceed.
But with its filing of a motion to dismiss last week, the DOJ under President Biden is demanding the court refuse to hear the youth plaintiffs and the scientific evidence supporting their claims. The filing came just two days after the conclusion of trial in a similar youth climate case at the state level against the government of Montana. That trial was the first in U.S. history to see young people testifying to their lived experiences of climate impacts. This was backed by testimony from climate scientists and others explaining the science behind these impacts and the state government’s role in contributing to the harm through continued policies and practices promoting fossil fuels. In its brief defense, the state presented no climate science evidence in response.
“Sixteen young Montanans in Held v. State of Montana just demonstrated the power and importance of putting on evidence of their government’s continued promulgation of a fossil fuel energy system in open court while the world watched,” Julia Olson, chief legal counsel and executive director of Our Children’s Trust, a nonprofit law firm that has spearheaded U.S. youth climate lawsuits against governments, said in a statement.
According to Our Children’s Trust, the DOJ’s latest move to try to stop Juliana from reaching trial is a continuation of the relentless oppositional tactics used by government lawyers under the Trump administration.
“This decision, made at the highest levels of the Department of Justice, to seek to deny the 21 young plaintiffs in Juliana their day in court is shameful,” Olson said.
“It is appalling that the Biden administration, which claims to support young people’s right to a safe climate, would try to stop the 21 Juliana youth in the same manner that the Trump administration did, all while continuing to authorize new fossil fuel projects like the Willow Project,” Olson added, referring to ConocoPhillips’ proposed oil and gas drilling project in the Alaskan Arctic that the Biden administration authorized in March. Most recently, the administration allowed congressional proponents of the Mountain Valley gas pipeline to mandate fast-tracking the project as part of negotiations to raise the debt ceiling.
Continued approval of new fossil fuel development is inconsistent with limiting warming to well below 2° Celsius, climate scientists have warned. The Intergovernmental Panel on Climate Change’s Sixth Assessment Synthesis Report published in March said that projected emissions from existing fossil fuel infrastructure would result in warming exceeding the 1.5° Celsius limit established under the Paris Agreement.
“In the moment when every new UN IPCC Declaration is a clarion call, when every year racks up unprecedented global weather disasters, when Congress is seemingly determined to further drive the US and world past points of ‘no return,’ it is the responsibility of our court system to be the constitutional bulwark in halting ‘the nation’s willful destruction,’” said 23-year-old Juliana plaintiff Nathan Baring.
Story originally published in DeSmog
Major fossil fuel entities and trade associations including Koch Industries, the American Petroleum Institute, and the Western States Petroleum Association, as well as consulting behemoth McKinsey & Company, were slapped with the latest climate liability lawsuit today with the filing of a complaint in the Oregon Circuit Court in Multnomah County, Oregon.
The northwestern Oregon county is the state’s most populous and includes the city of Portland. In this new lawsuit, it seeks to hold fossil fuel companies and their “misinformation agents” accountable for the unprecedented 2021 heat dome that saw temperatures in the county reach 116º Fahrenheit. Climate scientists and researchers in attribution science have determined that this extreme heat event would have been “virtually impossible” without anthropogenic climate change, which is driven primarily by burning fossil fuels.
“Multnomah County is utilizing irrefutable climate science to hold corporate polluters accountable for their role in causing a discreet and disastrous event, as well as recent wildfires,” attorney Roger Worthington — a partner at Worthington & Caron, one of the firms representing the county — stated in a press release.
“This lawsuit is about accountability and fairness, and I believe the people of Multnomah County deserve both. These businesses knew their products were unsafe and harmful, and they lied about it,” added Jessica Vega Pederson, chair of the Multnomah County Board of County Commissioners, in the press release.
Named defendants in Multnomah County’s lawsuit include ExxonMobil, Chevron, BP, Shell, ConocoPhillips, Motiva, Occidental Petroleum, Anadarko Petroleum, Space Age Fuel, Valero Energy, Total Specialties USA, Marathon Petroleum, Peabody Energy, Koch Industries, American Petroleum Institute, Western States Petroleum Association, and McKinsey & Company. DeSmog reached out to the American Petroleum Institute, Western States Petroleum Association, McKinsey & Company, ExxonMobil, and Chevron for comment.
“Suits like these continue to waste time, resources and do nothing to address climate change. This action has no impact on our intention to invest billions of dollars to leading the way in a thoughtful energy transition that takes the world to net zero carbon emissions,” an ExxonMobil spokesperson said via email.
It is the first time that McKinsey & Company has been named as a defendant in a climate accountability lawsuit. It is also the first climate case to name the WSPA as a defendant; other climate cases filed by California communities have invoked the Big Oil trade association — which spent more than any other group lobbying in California last year — as a relevant non-party.
McKinsey & Company has a sordid history of working with industries that have deliberately deceived the public about the harms of their products, from Big Tobacco to opioid manufacturers. The consulting firm has also served the fossil fuel industry. As explained in the 2022 book When McKinsey Comes to Town, since 2010, McKinsey has worked for at least 43 of the 100 largest corporate carbon polluters. These companies, “when accounting for the customers who use their products, were responsible for more than 36 percent of the planet’s greenhouse gas emissions from fossil fuels in 2018,” authors Walt Bogdanich and Michael Forsythe write. Chevron, one of the defendants in the new case, has been one of McKinsey’s biggest clients, generating at least $50 million in consulting fees in 2019.
The targeting of a consulting firm working for fossil fuel clients may be just the beginning of efforts to hold those enabling the industry accountable through litigation, according to Ben Franta, senior research fellow and head of the Climate Litigation Lab at Oxford University.
“Fossil fuel majors have collaborated with ad agencies, public relations firms, and others over the decades to create misleading public communications campaigns,” he told DeSmog. “Much as the consulting firm McKinsey has faced liability in the context of opioid litigation, third parties beyond fossil fuel producers might conceivably face liability in the context of climate litigation.”
The lawsuit filed by Multnomah County brings charges of public nuisance, negligence, and fraud. It seeks $50 million in actual damages and $1.5 billion in future damages. Additionally, the county seeks $50 billion in costs for an abatement model to study, plan, and upgrade public healthcare services and infrastructure to safeguard against future extreme heat events.
Deadly and Record Breaking
The Pacific Northwest heat dome, which developed nearly two years ago to the day, broke all-time temperature records for the region and was the most extreme heat event in Multnomah County’s history. Temperatures in Portland, Oregon, climbed to a scorching 116º Fahrenheit on June 28, 2021, and the temperature readings were recorded at 108° Fahrenheit and 112° Fahrenheit in the preceding days. The blistering heat was linked to the deaths of 69 people and caused property damage and significant expenditure of county resources, according to a county news release.
Montana-based climate scientist Steven Running said during a youth climate trial last week in Helena, Montana, that this extreme heat dome is an “example of the sort of thing that may happen in the future [under climate destabilization]. As long as fossil fuel emissions continue, “the Earth will keep trapping this additional heat and then periodically we will end up with surprises like this,” he testified.
“The heat dome that cost so much life and loss was not a natural weather event,” the lawsuit asserts. “Rather, the heat dome was a direct and foreseeable consequence of the Defendants’ decision to sell as many fossil fuel products over the last six decades as they could and to lie to the County, the public, and the scientific community about the catastrophic harm that pollution from those products into the Earth’s and the County’s atmosphere would cause.”
Vega Pederson, board chair of the Multnomah County Board of Commissioners, said the lawsuit is about leveling the playing field and making corporate polluters pay for the damage their products cause.
“They have profited massively from their lies and left the rest of us to suffer the consequences and pay for the damages. We say enough is enough.”
Story originally published in The New Lede
For 20-year-old college student Olivia Vesovich, climate change is not a future concern. It’s a current and near-daily crisis.
“Climate change has impacted my ability to breathe,” Vesovich testified from the witness stand of a Montana courtroom last week.
The college student, who suffers from asthma, is one of more than a dozen young people who have undertaken a landmark legal challenge against the state of Montana over the state’s support for industries that contribute to harmful climate change and related impacts on human health.
Smoky conditions stemming from wildfires that have been raging through the western US have direct and frightening consequences, Vesovich told a packed courtroom in Helena.
“It feels like it’s suffocating me if I’m outside for too long,” Vesovich said.
Personal stories such as Vesovich’s were spotlighted over the last week in the case of Held v. Montana, which was filed by sixteen children and young adults who contend that Montana officials are turning a blind eye to climate pollution when issuing permits for fossil fuel projects, including expansion of coal mining.
The case is the first-ever constitutional climate trial in the country, pitting youth inheriting climate problems against the government leaders they blame for the dire legacy.
The plaintiffs are seeking a court declaration that the state is violating Montana’s constitution, which explicitly grants the right to a clean and healthful environment. The lawsuit targets two provisions of Montana’s energy policy, one that promotes the use of fossil fuels, and another that prevents state officials from taking into account how different projects contribute to climate change.
State officials maintain climate change is a global problem and they are bound by current state laws. The Montana Department of Environmental Quality has asserted that it cannot deny permits if proposed projects comply with applicable permitting requirements, regardless of the environmental impacts and especially the climate impacts, which agencies are barred from evaluating. Changes should come through legislative means, they say.
Testimony concluded this week, and a ruling is expected in the next few weeks by Judge Kathy Seeley.
The toxic smoke associated with wildfires was a common concern among the plaintiffs. Wildfire smoke contains PM 2.5, defined as particulate matter that measures 2.5 microns in diameter or smaller. When people breathe them in, the particles can impact not just the lungs, but also other organs, including the heart and brain.
The particulate matter in wildfire smoke is known to have a range of health effects that include myocardial infarctions, heart failure, and strokes, as well as respiratory problems such as asthma. Wildfires could lead to “hundreds to thousands of hospital admissions and emergency department visits, and hundreds of thousands of cases of asthma exacerbation,” according to a new study issued this month.
Climate change is contributing to an increased risk of wildfire, as are other factors, and the amount of US land burned by wildfires is about four times what it was forty years ago, researchers say.
The physical ailments come with mental anxiety and anguish, psychiatrist Dr. Lise Van Susteren testified.
“Our children are at deep risk from the impacts of climate disruption,” she told the court.
Van Susteren cited an American Psychological Association 2017 report that warned that climate impacts “may have long-term and even permanent effects, such as changing the developmental potential and trajectory of a child.”
“Being surrounded by wildfire smoke can have mental health impacts,” Van Susteren said in her testimony. “It tells you the world is not a safe place, you can’t go outside and breathe; it really spawns an enormous amount of anxiety, and can make you feel the world is spinning out of control.”
The Intergovernmental Panel on Climate Change’s Sixth Assessment Working Group II report published last year acknowledged that climate impacts are associated with increased risks for mental health and that children are uniquely vulnerable.
Climate anxiety is becoming especially common among young people as they realize that floods, fires, and other climate-related disasters are forecast to become more common. According to a 2021 global study on climate anxiety among young people ages 16 to 25, more than half of those surveyed said they felt that humanity is doomed, and four out of every ten respondents reported concern about having children of their own.
According to the 2021 study on climate anxiety, which Van Susteren co-authored, the vast majority of young people surveyed feel betrayed by government. “Two-thirds of those 10,000 kids [surveyed] lay the blame firmly at the feet of government,” she told the court. Professionals in her field call this institutional betrayal, she explained.
“Instead of protecting them, they’re increasing the dangers” she said of Montana’s government.
Young people are concerned not just about their own health, but also for any future children, according to testimony at trial. Due to children’s unique and developing physiology, they are more vulnerable to extreme heat and to air pollution such as wildfire smoke. The climate crisis stemming largely from fossil fuels exacerbates these impacts, scientists say.
Dr. Lori Byron, a Montana-based pediatrician, testified that concern about bringing future children into the world is quite common among her young patients. As well, she said, exposure to extreme heat can complicate pregnancies, increasing the likelihood of preterm births and increasing the risk of developmental disorders in the child.
The court’s ruling will have a “determinative” effect on the youth plaintiffs’ mental health, Van Sustern said. “It’s a night and day impact. Either things are going to get worse and they will increasingly sense the feeling of hopelessness, or instead, here we are bringing to them the possibility that the necessary changes are going to be made.”
Similar lawsuits are pending in four other states, and a federal suit is also pending, the Guardian reported.
Story originally published in DeSmog
The historic youth climate trial in Montana concluded today ahead of schedule, after the state presented a condensed defense on Monday that steered clear of disputing climate science. It also excluded testimony from witnesses it had previously planned to call upon, including a neuropsychologist who admitted she had no expertise on climate change’s mental health impacts on youth and climatologist-turned-climate-denier Judith Curry, who had been billed as the state’s star witness.
Curry’s withdrawal came unexpectedly on Friday. Phil Gregory, an attorney for the youth plaintiffs, informed Judge Kathy Seeley that Curry’s anticipated court appearance had been canceled. The precise reason for the cancellation is unclear, and the Montana attorney general’s office did not respond to DeSmog’s inquiry.
“We know [Curry] watched the whole trial last week,” Julia Olson, chief legal counsel and executive director of Our Children’s Trust, a nonprofit law firm representing the Montana youth plaintiffs, told reporters outside the courthouse on Monday. “It was pretty clear that her testimony wouldn’t stand up against our expert testimony.”
Last week, some of Montana’s foremost climate scientists and ecologists testified in the historic trial, in support of the plaintiffs’ claims. The landmark Held v. State of Montana case argues that Montana’s government is violating the state’s constitutional right to a clean and healthful environment by prohibiting consideration of climate change and greenhouse gas emissions during environmental reviews conducted during the permitting process for fossil fuel projects. Anne Hedges, a Montana environmental policy expert and the director of policy and legislative affairs for the Montana Environmental Information Center, told the court last week that Montana has never denied a permit for a fossil fuel project.
In its defense on Monday, the state tried to support this conduct by divorcing its laws governing permitting authority from the Montana Environmental Policy Act (MEPA). This act requires regulatory agencies like the Montana Department of Environmental Quality (DEQ) to conduct environmental reviews and evaluate the impact of major development projects — but prohibits evaluation of climate impacts.
During Monday’s defense testimonies, officials from defendant agency Montana DEQ said repeatedly that MEPA is strictly procedural. It requires an evaluation and disclosure of environmental impacts, but “cannot be used to condition or deny a permit,” Sonja Nowakowsi, administrator for Air, Energy, and Mining Division at DEQ, told the court.
“‘Procedural’ is a term that industry likes to use,” Hedges told the court on Thursday.
DEQ officials also claimed that MEPA is separate from other statutes that grant permitting authority, such as the Montana Strip and Underground Mine Reclamation Act for coal mines. This mining statute “is silent in terms of greenhouse gas emissions and climate change” and prior to the 2023 MEPA amendment (HB 971) — which expressly prohibits MEPA reviews from considering greenhouse gas emissions and their climate impacts — the term climate change was completely absent from any law in the Montana code, Nowakowski said.
DEQ head Chris Dorrington also testified that MEPA does not grant the agency any regulatory authority. “MEPA doesn’t permit,” he said. But he confirmed that MEPA review is part of the process for issuing permits for projects like coal mine expansion, and said the agency does not look at impacts for coal combustion when permitting coal mining activities.
Nowakowsi agreed that fossil fuel activities are the largest contributor to greenhouse gas emissions in the state, yet state law under MEPA bars the agency from evaluating the environmental impacts of those emissions.
“Not a Scientist”
When asked during cross-examination whether greenhouse gas emissions harm the “environmental life support system” that Montana’s constitution expressly protects, Nowakowsi replied: “I’m not a scientist.” When asked as a follow up whether these emissions contribute to environmental degradation, she responded: “Again, I’m not a scientist.”
That line is a favorite of Republican politicians and government officials, used to deflect from their climate denialism; Supreme Court Justice Amy Coney Barrett trotted it out during her 2020 Senate confirmation hearing.
Lee McKenna, a state lawyer for DEQ, used the “not a scientist” talking point in defending Dorrington during his cross-examination. When attorney Melissa Hornbein of the Western Environmental Law Center, which is helping represent the youth plaintiffs, asked Dorrington whether the amount of greenhouse gasses emitted as a result of DEQ-authorized activities has an effect on Montana’s healthful environment, McKenna objected, noting “he’s not a scientist who can testify to health effects [of the environment].”
The director of one of the state’s main environmental agencies, whose mission is to “champion a healthy environment for a thriving Montana,” admitted that prior to this trial he was unfamiliar with the Intergovernmental Panel on Climate Change (IPCC) — the world’s most authoritative climate science body.
Climate scientist Steven Running, professor emeritus at the University of Montana and a chapter lead author of the IPCC’s Fourth Assessment Report, told the court last week that Montana is “going the wrong way in this issue with every ton of CO2 emitted.” When asked by plaintiff counsel Gregory if failure to consider climate change impacts would be reasonable from a scientific perspective, he responded: “No, not at all.”
An Economist “Who Isn’t Great with Numbers”
The state’s only outside witness to take the stand on Monday was economist and climate contrarian Terry Anderson, a senior fellow at the Hoover Institution and former president of the Property and Environment Research Center (PERC). The state hired him as a $500-an-hour expert witness.
During cross-examination he also stated, “I’m not a climate scientist” and Gregory revealed that Anderson submitted incorrect calculations and misrepresentations of the state’s emissions in his original expert report. Anderson had to correct his report, including an appendix table displaying 2019 and projected 2030 emissions by sector and fuel source. The table in his original report misrepresented the data as Montana-specific when it in fact pertained to the entire Mountain West region.
Defendants “put on their single expert witness that they are calling in this trial who is an economist, who isn’t great with numbers,” Julia Olson, head lawyer and executive director of Our Children’s Trust, told reporters on Monday. Montana-based neuropsychologist Dr. Debra Sheppard, another proposed expert witness for the state, did not take the stand. Olson said Sheppard “admitted in her deposition that she didn’t understand climate change and had no expertise on the mental health impacts of climate change on young people.”
Mat dos Santos, an attorney with Our Children’s Trust, said “it was pretty noteworthy that the state rested its entire case on two agency witnesses and just one of their proposed experts.”
“When you compare it with irrefutable evidence that plaintiffs put on through an entire week of testimony last week, I think the evidence speaks for itself,” he said, adding, “We’re expecting to win this one.”
At the conclusion of his testimony and the end of the youth plaintiffs’ week-long presentation of personal stories backed by scientific evidence, 18-year-old Lander Busse spoke directly to Montana’s state government, with assistant attorneys general sitting in the courtroom at the defense side of the table.
“I don’t know how you can sit in this courtroom at all and listen to these experts, and not just the evidence but the pleas that they have. Dr. [Jack] Stanford and Dr. [Steven] Running remarked on how they’ve never seen such language in reports such as these for the direness of the situation.”
“The state has one job,” Busse continued, “to look out for us, for me. And I can’t really believe that this much can be put on display in a court of law and still we can be so vigorously shut down by government that doesn’t respect our right to the legal process – we’ve been almost shut down from getting into court eight times, whether that be through the court itself or through the Supreme Court trying to get our case dismissed. The state government did not even want us to have our day in court. Let alone for the facts to be presented for how detrimental this is for everyone in the state. It’s just another clear example of the government putting profits before the people that it’s supposed to serve, and it’s so frustrating and disappointing to see it on such a wide and systematic level as we’ve seen in the last few days.”
His testimony on Friday, June 16 wrapped up the plaintiffs’ side in the historic climate trial for the landmark case Held v. State of Montana. Filed in March 2020 by sixteen young Montanans against their state government, it is the first youth-led climate lawsuit in the United States ever to reach the trial stage. The case targets the state for continuing to promote and permit fossil fuel development while requiring that state agencies turn a blind eye to the climate pollution and climate change impacts of development projects. If successful, it could set a powerful example of a court declaring government conduct favoring fossil fuels – in this case passage of a law banning consideration of climate change under the Montana Environmental Policy Act – to be unconstitutional.
“I’m still optimistic that this may be some catalyst for change,” Busse said from the witness stand.
The plaintiff and recent high school graduate from Kalispell told his story of growing up hunting and fishing with his family. “Some of my earliest memories are in the Montana wilderness with my dad,” he said, as he recalled his first elk hunt. In recent years, however, the increasingly severe wildfire smoke has dampened his time spent outdoors hunting Montana game and fishing on the state’s splendid rivers. And he doesn’t just do these activities for fun. His family relies on what they catch or kill for most of their food as they refrain from buying store-bought meat.
Besides the smoke, Busse recalled an experience where a burning wildfire came close enough to his home that he and his family had to prepare to evacuate. His brother Badge, also a plaintiff in the case, told the court earlier in the week that this was probably “one of the most terrifying experiences of my life.” Lander described it as a “really weird and frantic experience for my family.” Wildfires are becoming more intense and burning for longer periods as anthropogenic climate change gives rise to warmer and drier ‘fire danger’ conditions.
The smoke pollution associated with these fires has become a common part of Montana’s environment especially in the late summer and early fall. Many in the state refer to the smoke as a “fifth season”, Lander Busse said.
For plaintiff Olivia Vesovich, a 20-year-old from Missoula, just being outside during smoky conditions can trigger her asthma. “I feel like I can’t breathe,” she said from the witness stand, describing what she has experienced. In addition to asthma, she said she has severe spring allergies, which have been getting worse in recent years. She described the painful experience of her eyes swelling shut.
Vesovich told the court that climate change is not just harming her physical health. “I absolutely believe that climate change is impacting my mental health,” she said. She described the psychological burden and stress she experiences knowing that the climate crisis is going to get worse, and she said she thinks it would not be morally right to bring a child of her own into such a broken world. “Knowing that I won’t get to start a family of my own breaks my heart, it really does,” she said.
The psychological toll that climate change is having on young people like Olivia is very real and is likely to get worse absent urgent action by governments to tackle the climate crisis, Dr. Lise Van Susteren, a licensed psychiatrist and leading expert in the area of climate and mental health, told the court during her expert testimony. She explained that professionals in her field have a term that refers to when governments let young people down in their decisions – institutional betrayal.
“Instead of protecting them, they’re increasing the dangers” she said of Montana’s government turning its back on its children. “There really is only one remedy, and that’s to address the root cause. It’s the promotion of fossil fuels and the rulings within the state that expressly prohibit consideration of climate impacts,” Dr. Van Susteren said. The court’s decision in this case will have a “determinative” impact on the youth plaintiffs’ mental health, she concluded.
Mark Jacobson, a professor at Stanford University and one of the world’s foremost experts on renewable energy and the energy transition, provided testimony explaining that Montana could transition off of fossil fuels and achieve 100 percent clean energy across all sectors by 2050. Such a move would not only reduce overall energy consumed, but would save Montanans money and reduce air pollution and climate-related health risks. And concerns over electric grid reliability are not really valid as he said an energy system powered by renewables would be more reliable than the incumbent fossil fuel system. Montana has one of the best wind power resources of any state in the nation, and the state already generates more than a third of its electricity from hydropower.
Jacobson said the transition to clean energy will happen naturally just based on the economics, but the key when it comes to mitigating greenhouse gas emissions and reversing climate destabilization is to accelerate the transition, which “requires aggressive policies to be put in place.”
Montana under the Republican-controlled state government is actively hindering this energy transition, recently enacting legislation favorable to fossil fuels and “outright hostile” to clean energy, Anne Hedges, director of policy and legislative affairs at Montana Environmental Information Center, told the court on Thursday.
Starting Monday, June 19, the state will present its defense. It is expected to call officials from defendant state agencies like the Montana Department of Environmental Quality to testify. Judith Curry, a climatologist who has shifted into the climate denial camp over the past decade, was scheduled to testify as an expert witness for the state, but state attorneys informed the court on Friday that she will not be called in to testify.
Court Hears Expert Testimony About How Montana ‘Doubled Down on Fossil Fuels’ and Became ‘Outright Hostile’ to Clean Energy
Story originally published in DeSmog
Montana “has recognized climate change as a growing concern for decades,” Anne Hedges, director of policy and legislative affairs at the Montana Environmental Information Center, testified to a Montana court on Thursday. Despite this, the state has never denied a permit for any fossil fuel-related project, she said.
“Montana is not walking, it is running, in the wrong direction to address the climate crisis,” Hedges concluded.
Her testimony was part of a landmark youth-led constitutional climate trial currently underway in the state capital of Helena. The case, brought by 16 young Montanans against their state government, contends that Montana is exacerbating dangerous climate change through persistent promotion and permitting of fossil fuels, while simultaneously ignoring the climate impacts of these activities. This conduct runs afoul of Montana’s constitutional right to a clean and healthful environment, plaintiffs say.
This right has existed for more than 50 years. The state adopted a new constitution in 1972 that prioritized environmental protection for present and future generations and guaranteed a clean and healthful environment as an inalienable right. It also explicitly made it the duty of the legislature to enforce this right and to support the “protection of the environmental life support system from degradation.”
But while the climate crisis has deepened and climate scientists warn that governments must urgently move away from fossil fuels, the Montana legislature has been “outright hostile” to the clean energy transition, Hedges said.
In just the past few months, the state’s Republican supermajority swiftly passed a number of bills enabling more fossil fuel development, such as ones that prohibit local governments from taking actions that restrict fossil fuel use or production. The legislature also passed a bill explicitly banning state agencies from even considering climate change and greenhouse gas emissions in environmental reviews of development projects.
Republican Gov. Greg Gianforte signed that bill, HB 971, into law in May. It amends the Montana Environmental Policy Act (MEPA) to state that an environmental review “may not include an evaluation of greenhouse gas emissions and corresponding impacts to the climate in the state or beyond the state’s borders.” Under the previous version of the statute as amended in 2011, the state was barred from considering impacts beyond state borders in environmental reviews. This was implicitly understood to mean that climate change was not allowed to be factored into permitting decisions.
Hedges explained how the 2011 MEPA bill marked a turning point for the state’s treatment of climate impacts in the permitting process. Prior to 2011 the state’s Department of Environmental Quality (DEQ) did evaluate and disclose the greenhouse gas emissions that would result from fossil fuel projects, though the agency did not deny any permits for these projects. But the disclosure offered the public transparent information and opportunity to comment on climate change concerns. Hedges said some projects ultimately were scrapped due in part to public opposition.
This triggered a backlash from the fossil fuel industry, she added, and in the 2011 legislature “the state doubled down on fossil fuels.” It passed the MEPA “climate change exception” bill, which she said the industry “lined up to support.”
Since then, the state continued permitting fossil fuel projects but refused to evaluate any of their climate change impacts. “I have never seen DEQ since 2011 do an analysis under MEPA that includes consideration of climate change,” Hedges testified.
The state has issued permits for a multitude of fossil fuel projects over the past 12 years, particularly for coal mine expansion. Coal is the most carbon-intensive fuel, and while many countries have pledged in recent years to move away from it because of its climate impact, Montana has done the opposite. In 2015, 2019, and 2020 the DEQ permitted projects expanding the Rosebud coal mine, which services the Colstrip coal plant. In 2016, the agency approved the Bull Mountain mine expansion for an additional 176 million tons of coal. DEQ also issued a permit renewal for the Bull Mountain mine just last month. And in 2020, DEQ permitted an expansion of the Spring Creek mine.
Montana has the largest recoverable coal reserves in the United States, accounting for about one-third of the total untapped coal in the country. The state still generates a considerable share of its electricity from coal — it accounted for 42 percent of in-state generation in 2022.
Most recently, Montana regulators approved a fossil gas power plant called the Yellowstone County Generating Station. Montana Environmental Information Center challenged that air permit approval and a judge ruled in April to invalidate the permit based on inadequate consideration of impacts, including climate pollution, under MEPA. That ruling prompted the Republican-controlled legislature to pass the new MEPA law, HB 971, banning climate considerations explicitly. It also passed a bill barring legal challenges based on climate impacts under MEPA from stopping or delaying any permit or authorization.
This clear pattern of defending and enabling fossil fuel activities despite the increasingly dire warnings from climate scientists is why the youth plaintiffs are putting their state government on trial. Their legal claim specifically challenges the state’s policy of prohibiting climate change considerations under MEPA, first established in 2011 and then further clarified with the passage of HB 971 last month.
State senator Mary Ann Dunwell, a Democrat from District 42, which covers eastern Helena, told DeSmog it is clear that a law banning climate change consideration is a violation of Montana’s constitutional guarantee of a clean and healthful environment.
“We’re given legal review notes if our bills are constitutionally non-conforming. So they knew, the Republican majority knew, going into it that this was unconstitutional,” she said.
“Under the Montana constitution, legislators have a job to do, a responsibility. Article 9, Section 1 says we need to work towards a clean and healthful environment,” she added. “Some of my colleagues are breaking that oath that we take. At the beginning of session, we vow to uphold the Montana constitution, and they broke that vow. That’s not ok.”
The youth plaintiffs, who testified to their own lived experiences of climate impacts, like heavy smoke pollution from worsening wildfires, said they feel their government is betraying its constitutional obligation.
“I think the state is showing a blatant disregard for Montanans’ right to a clean and healthful environment,” 20-year-old Taleah Hernández told the court.
“It’s not only written in our constitution… it’s also just about being a decent person,” said fellow plaintiff Sariel Sandoval.
Kian Tanner, an 18-year-old plaintiff, described the physical sensation he feels knowing the state is ignoring climate change in environmental reviews of fossil fuel projects.
“It’s a feeling, a pain, that starts in my back by my shoulder blades and creeps down to the small of my back. It tightens in my core and it makes me feel sick, it makes me feel horrified.”
The groundbreaking youth climate trial currently underway in Helena, Montana is seeing young people share their personal experiences with climate change impacts for the first time in front of a judge in a US court. Over the past two days, a number of these youth plaintiffs in the case Held v. State of Montana have testified to how the manifestations of climate destabilization – from more intense wildfires and smoke conditions to warming rivers and declining snowpack – are impairing their quality of life and endangering their health. And scientific and medical experts are taking to the witness stand to substantiate and explain how and why these harms are happening.
The lawsuit accuses Montana’s state government of actively exacerbating the climate emergency through persistent permitting and promotion of fossil fuels while simultaneously disregarding the climate consequences of doing so. As a result, the state is already seeing damaging climate impacts that degrade environmental quality – this amounts to a violation of Montana’s constitutional right to a clean and healthful environment, the plaintiffs say.
“I think the state is showing a blatant disregard for Montanans’ right to a clean and healthful environment,” plaintiff Taleah Hernández, now a college student at Montana State University, told the court on Wednesday. She said she feels her government “is prioritizing profits over people, because they know there is visible harm coming to the land and to people, and they’re still choosing to make money instead of care for all Montanans.”
Hernández spoke about her firsthand experience with the worsening wildfires and associated smoke pollution. She noted the smoke has increased over the last few years, triggering headaches and coughing and disrupting her ability to work and recreate outside. In 2021 the Boulder 2700 Fire burned near her home in Polson, Montana, and her family had to prepare to evacuate.
Each of the youth plaintiffs who have testified thus far have shared similar experiences of seeing more frequent fires and dealing with smoke exposure.
Sariel Sandoval, a 20-year-old college student and an enrolled member of Montana’s Confederated Salish and Kootenai Tribes, said she has had to contend with wildfire smoke in the area around her home on the Flathead Reservation. “I can’t even count how many wildfires we have each summer,” she told the court during her testimony on Wednesday.
Georgi Fischer, a 21-year-old athlete from Bozeman who competes in Nordic skiing, said that wildfire smoke has impacted her ability to train properly over the last few summers. She recalled one day, July 27, 2021, when the smoke was so thick and air quality so bad that her coach told the team to move their training indoors to protect their lungs; indoor training for an outdoor sport like skiing is “just not the same,” she explained.
Badge Busse, a 15-year-old who lives in Kalispell, recalled a time when he too, like his fellow plaintiff Taleah, had to prepare to evacuate from a wildfire burning near his home. He said it was “probably one of the most terrifying experiences of my life.” The wildfire smoke has also affected his freedom to do outdoor activities and it has impacted his health. “Usually we just don’t go outside because it’s horrible for your lungs, which is super depressing,” he said from the witness stand on Tuesday.
Mica Kantor, a 15-year-old from Missoula, is an avid runner and enjoys cross-country running and track. But due to the smoke he is sometimes not able to run outdoors. He said he recently went to the doctor for a respiratory problem and was diagnosed with asthma.
That diagnosis is sadly very common nowadays. According to Dr. Lori Byron, a pediatrician and expert in climate change health impacts on youth, about 6 million children (through age 17) in the US, or about 1 out of every 12 kids, have asthma. Children are more vulnerable to air pollution and smoke as their lungs are still developing, she explained in her testimony.
Climate change plays a role in the worsening wildfire smoke that the youth plaintiffs talked about, said climate scientist Cathy Whitlock. “Now because of climate change the risk of wildfires has increased greatly,” she said. “Wildfire smoke is something we’re all going to have to live with unfortunately as we go into the future.”
Whitlock spoke about a multitude of climate change impacts that Montana is experiencing, such as more extreme heat days, shifting seasonal precipitation patterns, larger flood events, and more severe droughts.
“The plaintiffs are experiencing and living with this warming trend…and it’s affecting all of them,” she said during her testimony on Tuesday. Young Montanans like Georgi Fischer who rely on winter snowpack for skiing will be adversely impacted as the state’s snowpack shrinks.
Montana’s iconic glaciers in Glacier National Park are also shrinking and disappearing as the climate warms. Ecologist Dan Fagre, who has studied glaciology in the park for over 30 years, spoke about the importance of mountain glaciers not just for park visitation, but for feeding major rivers and serving as water storage systems. “This free reservoir system is getting smaller, and this is something to be concerned about because we rely on it,” he told the court during his testimony on Tuesday.
Jack Stanford, a freshwater ecologist affiliated with the University of Montana, echoed this concern in his expert testimony on how climate change is affecting Montana’s freshwater ecosystems and the hydrologic cycle. He said Montana is essentially the “water towers of the continent” and that less snow and ice on the mountains impacts us all. “We can’t get through life without a reliable source of freshwater,” he said. Montana’s rivers are warming, threatening fish and impacting people who rely on or enjoy fishing.
Michael Durglo Jr., a member of the Confederated Salish and Kootenai Tribes, said the Flathead River, which is integral to his tribe’s connection to the land, has seen a lot of changes as climate change disrupts ecological stability. During his testimony on Wednesday, he talked about his work developing a climate adaptation plan for his tribal community and helping to inspire youth on the reservation to engage in environmental advocacy. He explained how climate change’s disruption of seasonal cycles and its impact on the land harms the spiritual relations that Indigenous peoples have with the environment. They rely on certain plants for medicine. And the land is their source of subsistence. As plaintiff and fellow tribal member Sariel Sandoval explained: “It’s our way of life. It’s the way we survived for time immemorial…we wouldn’t be here without the land.”
Durglo said that addressing climate change is an urgent imperative: “I think it’s absolutely necessary for our survival that we take action now.”
Story originally published in DeSmog
“We have been warning about the dangers posed by climate change for decades,” climate scientist Cathy Whitlock testified to a Montana court on Tuesday, “and yet Montana continues to aggressively pursue an expansion of fossil fuel utilization and production.”
Whitlock is one of a number of climate scientists scheduled to testify for 16 young Montanans who have sued the state for continuing to favor oil, coal, and gas development despite the worsening climate crisis.
The youth charge that the state’s strong preference for fossil fuel development has violated their right, guaranteed under Montana’s constitution, to a clean and healthful environment.
Their case, Held vs. Montana, is the first U.S. climate lawsuit led by young people to go to trial, and the first grounded in constitutional claims.
The trial is currently underway in Helena, Montana.
During her testimony, Whitlock, a professor emeritus at Montana State University, said that climate science has made it clear that there is an urgent problem, and addressing it requires lessening fossil fuel dependency as quickly as possible.
Whitlock’s testimony backed up statements from the stand on Monday by Steven Running, also a professor emeritus at the University of Montana. Running was a major contributor to the United Nations Intergovernmental Panel on Climate Change’s Fourth Assessment Report, and shared in the 2007 Nobel Peace Prize awarded to the IPCC and Al Gore.
Running testified that in subsequent reports, such as the most recent IPCC scientific report published in March, scientists have expressed increasing alarm, using terms like “unequivocal” and “very high confidence” in regards to the risks of climate destabilization from continuing to burn fossil fuels. Climate scientists are “literally trying to get humanity to just pay attention,” he told the court.
In the IPCC’s latest report, scientists have warned that “there is a rapidly closing window of opportunity to secure a livable and sustainable future for all…choices and actions implemented in this decade will have impacts now and for thousands of years.”
Some of the children named in the case told the court on Tuesday that by requiring regulators to turn a blind eye to climate change, the state is enabling further fossil fuel development despite increasingly dire warnings from climate scientists about the dangers of doing so.
“It makes me feel almost betrayed because they’re not doing their job protecting me and the other plaintiffs in Montana,” 15-year-old Mica Kantor of Missoula testified.
It’s “kind of a now or never situation”, 15-year-old Badge Busse of Kalispell, Montana said from the stand.
“History Being Made” in Montana
According to Prof. Michael Gerrard, founder and faculty director of the Sabin Center for Climate Change Law at Columbia Law School, this is only the second time in the United States that climate science has been presented at a trial.
The first was a 2007 federal case in which automakers challenged Vermont’s adoption of California’s strict greenhouse gas emissions standard for new cars and trucks.
Three climate scientists testified at that trial, including James Hansen, who at the time was the director of NASA’s Goddard Institute of Space Studies at Columbia University. The U.S. District Court in Vermont ultimately upheld the state’s regulation.
Patrick Parenteau, professor emeritus and senior fellow for climate policy at Vermont Law School, confirmed that this “probably was the first trial involving presentation of scientific evidence on the risks of climate change.”
Still, Parenteau told DeSmog, at the climate trial in Montana, “history [is] being made regardless of the outcome.” It is the first time that children and teens are directly recounting their personal experiences of the worsening climate crisis in a live courtroom, joined by climate scientists explaining the causes of those impacts in expert testimony.
Several of the youth plaintiffs have testified that they are seeing and breathing heavy smoke from wildfires more often.
Grace Gibson-Synder, a 19-year-old from Missoula who played high school soccer, recalled that many practices ended up being “smoked out.” It has become “kind of an inescapable phenomenon to deal with the smoke during the summer in Missoula,” Gibson-Snyder testified.
Climate scientists say the fires that generate this smoke are now burning more intensely and over longer periods, and that fossil fuels are clearly the cause. “The fire season in Montana is a full two months longer now than it was 40 years ago,” Running said from the witness stand.
A recent analysis by the Union for Concerned Scientists has linked worsening wildfires in western North America to carbon pollution stemming from the products of the world’s largest fossil fuel companies – the “Carbon Majors.”
Along with more severe wildfires, Montana is experiencing more extreme heat days, droughts, flooding, warming of rivers and streams, and declining winter snowpack. The namesake glaciers of Glacier National Park are melting.
The youth suing the state say that these changes, which have accelerated in their lifetimes, have worsened their quality of life – notably the ability to enjoy and recreate outdoors in a state known for its vast and splendid landscape.
‘Every Ton of CO2’ Adds to Climate Change
Running and Whitlock testified that the only way to preserve the right to a clean and healthful environment enshrined in Montana’s constitution is to urgently transition away from fossil fuels.
“We’re going the wrong way in this issue with every ton of CO2 emitted,” Running told the court.
“Montana’s promotion of fossil fuel production is making the problem worse, because every ton of CO2 makes a difference,” Whitlock testified.
Recently, Montana’s Republican-led state government enacted multiple laws that deepen the state’s reliance on fossil fuels and weaken environmental protections. One of the measures explicitly bars consideration of climate change in environmental reviews of proposals for major projects like mines and pipelines. Whitlock called that policy a “big step backwards. Climate change is the ultimate crisis we’re all facing.”
Another, signed by Gov. Greg Gianforte in March, repealed the state’s energy policy statute, which contained provisions explicitly promoting fossil fuel development. The state then petitioned the court to have a portion of the lawsuit challenging that policy thrown out. Judge Kathy Seeley of the 1st District Court in Montana, who is overseeing the trial, agreed and dismissed that part of the youth case just weeks before the start of trial.
While that move has narrowed the youths’ case against the state, it does not change any of the underlying scientific evidence substantiating the plaintiffs’ contention that Montana’s government is actively contributing to dangerous climate change.
As Running told the court from the witness stand: “It’s pretty hard to repeal physics.”
Historic Climate Trial Kicks off: Young Montanans Suing State Take the Stand in first-Ever US kids' climate change trial
Sixteen young Montanans suing their state government in a groundbreaking climate lawsuit made history on Monday when trial began in their case - the first of its kind in the U.S. to reach the trial stage. It is the first youth-led climate case in the country to go to trial, and first US climate trial in a case grounded in constitutional claims.
The Held v. State of Montana case, filed in 2020, alleges that Montana is harming its youngest citizens by promoting and perpetuating a fossil fuel-based energy system that worsens climate change, which is having devastating impacts across the state – from more severe floods and fires to intensifying heat and drought and rapidly melting winter snowpack and glaciers. The case seeks a court order declaring the state’s conduct, particularly a provision in the Montana Environmental Policy Act banning the state from even considering climate impacts in permitting decisions, to be in violation of Montana’s constitution.
That constitution enshrines the right to a “clean and healthful environment for present and future generations;” it also references the state’s spectacular landscape in its preamble and it uniquely and explicitly extends fundamental rights, including the environmental right, to the state’s youth (persons under age 18). These constitutional protections have been in place for half a century, yet the climate crisis threatens to unravel them, the youth lawsuit contends.
“Because of the now unstable climate system caused by fossil fuel generated greenhouse gases, Montana’s environment is neither clean nor healthful,” Roger Sullivan, an attorney with the Montana-based firm McGarvey Law, said during plaintiffs’ counsel opening statement.
Montana’s constitutional guarantee of the right to a clean and healthful environment dates back to 1972 – when the state drafted a new version of its foundational legal document. One of those drafters was in the courthouse testifying about that historic moment and the significance of adopting what the framers intended as the strongest environmental protections out of any state constitution in the US. At age 24, Mae Nan Ellingson was the youngest delegate elected to the state’s 1972 constitutional convention. She told the court that environmental protection was one of her top priorities in running for the position. Not only did this issue make it into the new constitution as part of a distinct Article (Article IX), but it also was prioritized under the list of inalienable rights (Article II, Section 3) and included in the document’s opening lines as the preamble invokes the beauty of Montana’s natural environment.
“What I think is so unique to this constitution is its reference to the land,” Ellingson said.
"No Longer a Future Possibility": Climate Destabilization is Here and Now, Expert Testifies
Climate science finally made its debut in a US state courthouse on the opening day of this landmark trial. Steven Running, professor emeritus at the University of Montana and a prominent climate scientist, presented expert testimony covering the fundamental physics of the global climate system and how it is rapidly destabilizing due to human-caused greenhouse gas emissions – the vast majority of which stem from fossil fuel combustion.
Running explained that fossil fuel usage is the source of 89 percent of human-caused CO2 emissions, and atmospheric buildup of CO2 - the most abundant greenhouse gas - “has literally accelerated over the last 50 years.” Moreover, the rate of this buildup is unprecedented in Earth’s history.
“It took 200 million years for the world to generate the fossil fuels…we are digging it up and burning it in 200 years, so we have just unbalanced the global carbon cycle by a factor of 1 million,” he explained.
The result is a phenomenon called Earth energy imbalance, which forms the physical basis for the destabilization of the climate system. So much energy from solar radiation is accumulating in our biosphere, trapped there by the increasing concentration of greenhouse gases, that it is overwhelming Earth’s natural systems or sinks that absorb much of that energy. And the manifestation of this energy imbalance is occurring in the form of increasingly wacky weather extremes and climate disasters such as deadly heatwaves, intensifying droughts, monstrous wildfires, epic flooding, and catastrophic storms.
“The physics on this issue is really unequivocal,” Running said. “This is no longer a future possibility – we’re living right in the middle of it.”
"There's Ash Falling From the Sky"
That is certainly true for the Montana youth plaintiffs, who have all personally experienced disruptive and harmful climate impacts. For these young Montanans, the climate crisis has literally hit home.
Lead plaintiff Rikki Held took to the stand and described how extreme heat, drought, fires and floods are adversely affecting her and her family’s ranching business. One wildfire in 2012 directly scorched the southeast corner of the state including the town of Broadus where her family ranch is located. Another fire in 2021 impacted that area, and while the fire wasn’t near the ranch there was still a lot of smoke. Held was working at the ranch and at her family’s motel at the time, and as she recalled: “I just remember going between buildings and there’s ash falling from the sky.”
When asked by her attorney Nate Bellinger what’s it like working on the ranch when it’s smoky and 110 degrees Fahrenheit out, she got choked up, and she concluded her testimony by imploring her state government to “do the right thing.”
Another youth plaintiff, 17-year-old Eva Lighthiser of Livingston, Montana, testified about her personal connection with the Yellowstone River, where she enjoys recreating. Exactly one year ago on June 13, 2022 the river saw a particularly massive flooding event. Lighthiser said that flood deeply impacted her home community, forcing many residents to evacuate. She recalled feeling “very, very scared.” And knowing that climate change is exacerbating these extreme events and disasters, giving rise to greater environmental instability, makes her feel a strong sense of unease.
“My future feels uncertain,” she said.
For plaintiff Grace Gibson-Snyder, now a 19-year-old college student at Yale who grew up in Missoula, the worsening climate instability has her rethinking her future plans to have children of her own. She recalled her personal experience as a high school soccer player and how thick wildfire smoke often disrupted her practices – many were “smoked out.” There was even one match that was called off after 20 minutes because the smoke was so thick. She described another experience hiking with friends in Glacier National Park two years ago where she witnessed a glacier melting in real time, a sight she said was “devastating.”
Attorneys for the state declined their opportunity to ask any questions or cross examine the youth plaintiffs.
The trial in the state capital of Helena continues on Tuesday, where there will be more testimony from youth plaintiffs and their expert witnesses.
the trial starts June 12 - despite the legislature's fast-Tracked changes to energy and environmental policies.
Story originally published in DeSmog
Montana’s Republican-led state government has failed to stop a groundbreaking youth climate lawsuit against the state from going to trial, despite last-minute legislative moves that have altered Montana’s energy and environmental policies.
The state legislature’s Republican supermajority passed House Bill 971 just two weeks after it was introduced in April, and Gov. Greg Gianforte signed it into law on May 10. The measure bans “evaluation of greenhouse gas emissions and corresponding impacts to the climate in the state or beyond the state’s borders” in environmental impact studies of major projects, such as fossil fuel pipelines.
It updates a 2011 provision in the Montana Environmental Policy Act that barred consideration of environmental impacts beyond the state’s borders during the permitting process. Critics said this ban was implicitly aimed at preventing inclusion of regional and global climate impacts in environmental reviews of coal, gas, and oil projects.
The 16 children in the lawsuit, Held v. State of Montana, assert that the older MEPA provision, which was current when they filed their lawsuit, is an unconstitutional “climate change exception.” Montana’s constitution guarantees present and future generations the right to a clean and healthful environment.
Phil Gregory, an attorney for the children, said the new MEPA law strengthens their case, because it makes the “climate change exception” more explicit. Gregory has volunteered with Our Children’s Trust, a nonprofit that has spearheaded youth climate lawsuits in the U.S., to represent the Montana youth.
The state “knows that these greenhouse gas emissions are measurable, that they’re substantial, and all sorts of projects would be denied permitting if it could consider it,” Gregory told DeSmog. “The state’s climate deniers want to make sure that their denial is embodied in a statute, and that the science doesn’t have any role to play in an environmental assessment.”
The children are also represented by lawyers from the Western Environmental Law Center and McGarvey Law.
Sandra Zellmer, a professor at the University of Montana’s Blewett School of Law, agreed that the new law is very relevant to the case. “It will probably be one of the plaintiffs’ first exhibits,” Zellmer told DeSmog.
Supporters of HB 971, including the bill’s sponsor Rep. Josh Kassmier, have claimed the legislation is a response to an early April court ruling that threw out the state air permit for a gas-fired energy plant in Laurel, Montana. It is intended to prevent courts from using MEPA as a “tool to regulate carbon,” Kassmier said during a legislative hearing on the bill in April.
Kassmier did not respond to DeSmog’s inquiry on whether the youth lawsuit had any bearing on taking this legislative action.
Montana’s Many Attempts to Stop the Trial
Since early 2023, Montana has tried to undermine the Held case several times. In February, the state filed a demand with District Court Judge Kathy Seeley for summary judgment – a ruling that would nix the trial. On May 17, seven days after Gov. Gianforte signed the new MEPA law, the state asked the district court to dismiss the MEPA-related claim in the youth lawsuit, arguing that since the 2011 provision no longer exists, the youths’ legal challenge to that provision is moot.
On May 23, Seeley released an order rejecting the request for summary judgment, effectively refusing to cancel the trial. While not ruling on the state’s MEPA-related claim, Seeley did address the new MEPA law, indicating in the order that she is prepared to rule on its constitutionality after the trial. The measure “clearly implicates Plaintiffs’ fundamental right to a clean and healthful environment.”
However, Seeley agreed with Montana that another recent change to state law – the legislature’s repeal of the state energy policy in March – invalidated the lawsuit’s charges related to that policy, somewhat narrowing the trial’s scope.
On June 5, the state filed an emergency petition with the Montana Supreme Court, asking it to take over the case and stop the trial. The court promptly denied the petition, stating in a June 6 order that the trial, “with preparation literally years in the making, is set to commence less than a week from now; we are not inclined to disturb the District Court’s schedule at this juncture.”
The trial is scheduled to begin on June 12 and last for about two weeks.
Neither the Montana attorney general office nor the governor’s office responded to requests for comment.
“Despite the state’s last-ditch effort, this first of its kind trial will kick off on June 12, 2023, in Helena, Montana,” said Nate Bellinger, one of the attorneys representing the youth plaintiffs.
The Montana trial will be the first in U.S. history that claims a constitutional right to a safe and stable climate. A win by the youth plaintiffs “could set a very powerful legal precedent” reaching far beyond the Treasure State, according to Zellmer. “I think a victory for the Montana youth would really set the stage, provide a strong foundation for many of these other youth climate cases,” she said.
One of those cases – Juliana v. US, a lawsuit brought by 21 children against the U.S. government – is back on track towards a trial, after being dismissed in January 2020. On June 1, a federal judge ruled that the case can proceed under a revised version of the original complaint.
A lawsuit brought by fourteen youths challenging Hawaii’s petroleum-dependent transportation system is also advancing towards a trial. Like Montana, Hawaii has an environmental right embedded in its constitution.