Story originally published in DeSmog

As more than two dozen climate liability lawsuits by state and local governments against fossil fuel companies continue to progress, a case brought by the city and county of Honolulu could become the first to put Big Oil on trial. 

On Thursday, the Hawaii Supreme Court heard arguments on an appeal by the defendants, which include oil majors such as ExxonMobil and Chevron, to dismiss the suit – a move that a trial court rejected in March 2022. 

The hearing, which lasted just over an hour, marked the first time the court had been in session since the devastating wildfires in Maui. The session opened with a moment of silence for the victims, at that point numbering 111 confirmed fatalities – a number state officials say will surely rise.

It’s not yet clear how much climate change has played a role in the Maui fire disaster, which was related to unusually windy and dry conditions on the island. Scientists say that global heating, driven primarily by fossil fuel combustion, has contributed to more arid conditions in many locales, including Hawaii, and made vegetation more flammable. 

The Thursday hearing centered on the fossil fuel defendants’ contention that federal law, not state, applies to the case. Honolulu’s lawsuit is similar to litigation against tobacco and opioid manufacturers, because it seeks to impose liability on fossil fuel companies for knowingly promoting and selling a harmful product, and lying about the harms to the public.

Arguing for the oil companies, attorney Theodore J. Boutrous, Jr., of the firm Gibson, Dunn & Crutcher, stated that given the global nature of the climate problem, state law cannot apply. If Honolulu prevails in the case, Boutrous argued, “Hawaii tort law would become the policing mechanism for the entire world regarding marketing of oil and gas products.” He said the case belongs under federal law because it involves global greenhouse gas emissions, which the U.S. authorizes the Environmental Protection Agency (EPA) to regulate under the Clean Air Act.

However, attorney Vic Sher of the law firm Sher Edling – which represents Honolulu as well as a handful of other municipal plaintiffs in climate lawsuits – countered that the federal Clean Air Act “does not provide a safe haven for international corporations to dissemble and lie about their products.”

Because the oil and gas companies do business in Hawaii, Sher argued, they can be held accountable in Hawaii. “If they don’t want to be hauled into court in Hawaii, they could choose not to do business here,” he said.  

“This is a big case, and it’s an important case,” Sher stated in his concluding remarks, but “those factors don’t make this case either a federal case or one we’re not entitled to prove.”

The court did not make any immediate ruling, but said it would take the matter under advisement.

The Honolulu lawsuit was initially filed in Hawaii’s First Circuit Court in March 2020. The city and county brought  state common law claims of nuisance, trespass, and failure to warn against Exxon, Chevron, Shell, BP, Marathon Petroleum, ConocoPhillips, and other oil and gas companies for allegedly concealing the true harms of their products on the climate system, as well as engaging in coordinated disinformation campaigns to stave off climate policy responses and protect profits. 

This deceptive conduct, the lawsuit contends, has made Honolulu more vulnerable to climate change impacts like sea level rise, coastal erosion, extreme heat, and severe storms and flooding. Honolulu wants the companies to help pay the costs of recovering from and adapting to these impacts, which are estimated to be on the order of billions of dollars.

After the oil companies appealed the trial court’s decision denying their motions to dismiss the lawsuit, trial court Judge Jeffrey Crabtree issued a pause on most evidence-gathering in the case. However, his order allowed for “limited and necessary discovery”  as well as  actions to “lay the infrastructure or groundwork” for the discovery process to proceed promptly if the appeal fails. 

If Hawaii’s highest court does rule against the companies’ latest appeal, it will put the case on track towards comprehensive discovery – including interviews with key witnesses and obtaining internal oil industry documents – and a trial date. 

“It’s definitely the case to watch. It’s out in front of all the others,” said Patrick Parenteau, emeritus professor of law and senior fellow for climate policy at Vermont Law and Graduate School. 

Honolulu’s climate case, Parenteau told DeSmog, “has the best chance of getting to trial first” because it is furthest along procedurally among cases seeking to make Big Oil pay for steep climate-related costs incurred by local and state governments. 

A case bought by Massachusetts against ExxonMobil is also on track towards trial, and is starting the discovery process. The Massachusetts lawsuit is among a handful of climate cases charging oil companies with violating consumer fraud laws and not seeking to recover climate costs.   

In October 2020, Maui County also brought a climate liability lawsuit against fossil fuel companies. In its complaint, Maui noted that “wildfires are becoming more frequent, intense, and destructive in the County.”
The oil companies in the Maui lawsuit have asked the state trial court to dismiss the case. A ruling from the Hawaii Supreme Court upholding the trial court’s order rejecting defendants’ bids to dismiss Honolulu’s case will likely diminish their chances of success.

There is a pretty good chance the Hawaii Supreme Court could rule in Honolulu’s favor, according to Parenteau.
​
“I’m expecting we’re going to see a fairly robust opinion in the case,” he told DeSmog. “The combination of what’s happening in Hawaii, factually, damage-wise, and the fact that I think you’ve got a progressive judiciary that is open to these kinds of claims, that’s a pretty good set of circumstances for a success.”

Story originally published in DeSmog

A Montana court ruled in favor of 16 young people who put their state government on trial in June in the first constitutional climate trial in U.S. history. In an order issued Monday, Judge Kathy Seeley in the First Judicial District Court of Montana found that the state had violated youth plaintiffs’ constitutional rights, including the right to a clean and healthful environment, because of Montana’s pro-fossil fuel policies, which require the state to disregard climate change and greenhouse gas emissions in environmental reviews.

“As fires rage in the West, fueled by fossil fuel pollution, today’s ruling in Montana is a game-changer that marks a turning point in this generation’s efforts to save the planet from the devastating effects of human-caused climate chaos,” Julia Olson, chief legal counsel and executive director of Our Children’s Trust, a nonprofit law firm that represented the youth plaintiffs, said in a statement. “This is a huge win for Montana, for youth, for democracy, and for our climate. More rulings like this will certainly come.”

The Held v. State of Montana case, first filed in 2020, argued that Montana’s longstanding actions and policies supporting fossil fuel development — despite clear knowledge of the climate consequences — contribute to environmental degradation and violate the young plaintiffs’ rights to a “clean and healthful environment.” Montana’s constitution explicitly grants that right, as do some other state constitutions, like Pennsylvania’s and New York’s. Montana’s constitution also extends it and other inalienable rights to its youngest citizens.

During Montana’s 2023 legislative session, which ended in May, the Republican supermajority passed a number of bills that weaken environmental protections. This included a controversial amendment to the Montana Environmental Policy Act (MEPA) that some had called the “most aggressive” anti-climate bill in the nation. That law, House Bill 971, dubbed the “MEPA limitation,” expressly prohibited state agencies, including the Montana Department of Environmental Quality, from evaluating greenhouse gas emissions in environmental permits. As the Held case went to trial, the question of this statute’s constitutional compliance was front and center.
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In her decision, Judge Seeley left no doubt that H.B. 971 was “unconstitutional on its face.” Her order overturns it, as well as another related piece of new legislation, Senate Bill 557. This bill bars MEPA litigation brought against the state on climate grounds from thwarting or delaying any permitting or authorization.

“This ruling, this case; it is truly historic. We are heard,” 18-year-old plaintiff Kian Tanner said in a statement. “Frankly the elation and joy in my heart is overwhelming in the best way. We set the precedent not only for the United States, but for the world.”

Montana Democratic state Senator Mary Ann Dunwell, whose district covers eastern Helena, told DeSmog that the ruling sends a strong message to her Montana legislature colleagues who are climate deniers.
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“It states in our constitution that the legislature has a responsibility, it’s our job to make sure that we uphold that right to a clean and healthful environment,” she said. “The majority Republican legislature these past two sessions has violated that.”

“To me it’s vindicating, this ruling is vindicating,” Dunwell added. “The youth had a strong case and frankly the state had a very weak one.”

In its narrow defense presented in just one day, state attorneys steered clear of engaging in climate science. To the extent the state did discuss climate impacts, it claimed that Montana’s emissions “are simply too minuscule to make any difference.”

The Montana attorney general’s office did not reply to a request for comment from DeSmog. The office sent a comment to Montana’s ABC/Fox News website stating that, “the ruling is absurd,” and the trial was a “weeklong taxpayer-funded publicity stunt” that showed Montana has “no impact on the global climate.” The comment noted the state will appeal.  
 
But Seeley’s ruling recognized the scientific fact that every additional ton of greenhouse gas pollution emitted exacerbates climate impacts. “Montana’s GHG [greenhouse gas] emissions and climate change have been proven to be a substantial factor in causing climate impacts to Montana’s environment and harm and injury to the Youth Plaintiffs,” she wrote.

The decision further affirmed that Montana’s right to a clean and healthful environment includes climate, as a stable climate is “part of the environmental life-support system.”
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Inspiration for Similar Climate Lawsuits

Professor Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia Law School, called the ruling “the strongest decision on climate change ever issued by any court.”

“After a trial where climate scientists testified under oath and were subject to cross examination (very rare in itself), the court issued a 103-page decision that found that fossil fuel use is the principal cause of climate change, which is in turn causing serious health and environmental impacts that will continue to get worse,” he wrote in a statement emailed to DeSmog. 

He added that the court found that renewable energy, like wind, solar, and hydro, can economically substitute for fossil fuels. 
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This ruling “may inspire similar lawsuits around the world,” Gerrard said.

​Another youth-led climate case spearheaded by Our Children’s Trust will be going to trial next summer in Hawaii, the scene of the deadliest wildfire disaster the United States has seen in more than a century. Like Montana, Hawaii also has the right to a clean and healthful environment embedded in its constitution, and this case involves climate pollution authorized by the state’s Department of Transportation.
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“This [Montana] decision could have an impact on the OCT case pending in Hawaii, which is scheduled for trial in 2024 and it may well inspire other cases in states like Pennsylvania and New York with similar constitutional provisions,” Patrick Parenteau, professor of law emeritus and senior fellow for climate policy at Vermont Law and Graduate School, told DeSmog. “The [federal] Juliana case has inspired youth lawsuits in other countries like Germany, France, and Columbia, as well as the European Court of Human Rights, and this decision is sure to spur even more.”

Climate lawsuits seeking to hold a state transportation agency and major fossil fuel producers accountable for contributing to the climate crisis are moving forward in Hawaii.
 
The state is currently reeling from devastating wildfires on the island of Maui that have destroyed the town of Lahaina and killed at least 93 people – the deadliest wildfire disaster the U.S. has seen in over a century. Scientists say global heating driven largely by fossil fuel combustion contributes to drying conditions that makes vegetation more flammable. Climate change generally enables fires to burn more intensely and over larger areas, and is an important factor in worsening the devastation from the Maui wildfires.
 
While the lawsuits underway will not provide relief for this disaster, they are part of the larger global effort to hold governments and corporate polluters accountable for exacerbating climate harms. As climate journalist Amy Westervelt explains in a recent piece, “accountability isn't just ‘a’ climate solution, it actually has to be the first one.” Climate litigation is surging around the world and is a critical tool for advancing climate justice, according to a new report from UN Environment Programme (UNEP) and the Sabin Center for Climate Change Law. “People are increasingly turning to courts to combat the climate crisis, holding governments and the private sector accountable and making litigation a key mechanism for securing climate action and promoting climate justice,” UNEP Exective Director Inger Andersen said.
 
In Hawaii, where the transportation sector is the largest source of greenhouse gas pollution in the state, a group of fourteen young people have brought a climate accountability lawsuit against the Hawaii Department of Transportation. By continuing to operate a carbon-intensive transportation system and not acting swiftly to slash transport emissions in line with Hawaii’s ambitious climate goals, HDOT is contributing to worsening climate change and violating the youth plaintiffs’ constitutional rights, including the right to a clean and healthful environment, the lawsuit contends.
 
The youth-led case, Navahine F. v. Hawaii Department of Transportation, is headed to trial next summer. New trial dates were recently announced – June 24 to July 12, 2024 at the Environmental Court of First Circuit in Honolulu. It will be just the second constitutional climate case to go to trial in U.S. history, following the landmark trial in the Held v. State of Montana case in June 2023.
 
Two other climate cases in Hawaii are also on track towards trial. These cases target major oil and gas companies such as ExxonMobil, Chevron and Shell, arguing the companies engaged in a longstanding climate disinformation campaign to protect profits and block or delay climate action. Plaintiffs Honolulu (city and county) and Maui (county) brought their cases in March and October of 2020, respectively, against fossil fuel defendants. The lawsuits are currently pending in Hawaii state court after surviving attempts from defendants to force the cases in federal court. Maui’s case is awaiting a decision on defendants’ motions to dismiss. Honolulu’s case is a bit further along as the state trial court has already denied defendants’ motions to dismiss; defendants have appealed and the Hawaii Supreme Court will hear the appeal this week on August 17.
 
Climate-related disasters are increasingly wreaking havoc across the United States and around the world, and Hawaii is no exception. The islands are especially vulnerable to sea level rise, flooding, and severe storms, and they are also experiencing extreme heat, drought and deadly fires. In its complaint, Maui County referenced worsening wildfires as one of the climate impacts it is seeing. “Wildfires are becoming more frequent, intense, and destructive in the County,” the complaint states.
 
The Center for Climate Integrity, which advocates for holding climate polluters accountable, says that Maui’s current wildfire disaster makes its lawsuit against oil and gas majors “increasingly relevant.”
 
“Maui residents are currently suffering mass evacuations, the loss of loved ones and homes, and cultural and economic destruction that will be felt for years to come — it’s cruel to stick them with the bill to clean up and recover from a disaster made worse by Big Oil's lies,” CCI said in a post. “Maui communities have already paid more than enough; it’s time for Big Oil to stand trial for their climate deception.”

​“The potential that this fight has in the courts is massive,” Rep. Alexandria Ocasio-Cortez, a Democratic congresswoman from New York, said on Wednesday evening.
 
She was one of several speakers during a climate-focused webcast who highlighted the promise and the importance of holding corporate climate polluters accountable through litigation. The online event - “Climate Change: Where Do We Go from Here?” - hosted by Vermont Sen. Bernie Sanders, discussed the planetary emergency that’s unfolding in real time and how to have a fighting chance of mitigating the crisis driven primarily by the products and the pernicious deception of the fossil fuel industry.
 
As investigative reporters and researchers have exposed in recent years, companies like ExxonMobil had early and accurate knowledge about the climate consequences of unrestrained fossil fuel use, and yet they spent decades disseminating climate denial that has now morphed into predatory delay.
 
“They knew since the 1970s with startling accuracy the exact temperatures that we would be experiencing in the 90s, in the 2000s, etc. They knew exactly what was going on, they knew their role, they knew their responsibility…but they very quickly decided the cheaper and easier thing to do would be to launch a muti-decade misinformation campaign in the United States and around the world,” said Ocasio-Cortez.
 
That deceit and accompanying obstruction of effective policy responses leaves little recourse, save for the third branch of government – the judicial branch, which serves an important role in holding bad actors accountable.
 
“Just like Big Tobacco which was held liable for the same exact thing…I think a very similar case can be brought to Big Oil and the fossil fuel companies in court,” Ocasio-Cortez added.
 
Senator Sheldon Whitehouse of Rhode Island also invoked the tobacco comparison; he specifically called for the U.S. Department of Justice to consider prosecuting Big Oil for fraud in the same way it did with Big Tobacco.
 
“I would love to see the Department of Justice bring exactly the kind of litigation that it won against the tobacco industry for lying about the dangers associated with its product,” he said. “When they had to stop lying, everything changed about tobacco. If the Biden DOJ would give an honest look at that kind of litigation against the lies of the fossil fuel industry, that could be a real turnaround.”
​

​Whitehouse, a former prosecutor and Rhode Island attorney general, noted that “good things have happened in honest courtrooms recently,” pointing to the Dominion case against Fox News and E. Jean Carroll’s court win against Donald Trump. He said fossil fuel companies should also have to face legal consequences.
 
“I think you’ve got to get them into a court of law,” Whitehouse said.
 
This is already starting to happen, with states and municipalities filing climate liability lawsuits against major fossil fuel entities. Whitehouse noted that Rhode Island has an active case underway. Vermont, currently under a federal disaster declaration from the worst flooding it has seen in nearly a century, is also suing Big Oil. And as climate activist and author Bill McKibben said during the webcast, “Multnomah County where Portland, Oregon’s located just filed a $52 billion lawsuit in connection with the heat dome that settled over that part of the world in 2021.”
 
Yet there is no legal action happening at the federal level to try to hold the fossil fuel industry accountable for its big climate lies.
 
Sen. Sanders asked Whitehouse about the possibility of initiating a federal lawsuit.
 
“These guys have been lying for decades. They’ve been causing far more damage than the tobacco industry which has only killed many millions of people. Their product now is destroying large parts of the planet. Do you got a case as Attorney General of the United States to make?”
 
Whitehouse responded yes, “you absolutely do.”
 
“The first thing you want to do is look at discovery,” he explained. “You want to get their facts and their material out…if you really get into the fossil fuel documents, if you get into their exchanges with their lawyers, if you get through the crime-fraud exception into that, if you can get into the documents with their public relations companies, you can put a case before the American public that will just send them fleeing.”
 
Whitehouse said that discovery played a big part in the federal case against Big Tobacco, because it was brought under the racketeering statute RICO, which “allows for enormous discovery.”
 
“There are very powerful tools for the Biden administration to pursue this if they wanted to give it an honest look,” he added.
 
In response, Sanders posed an idea to take action. “Well, sounds to me like we should maybe pay the Attorney General a visit. What do you think?”
 
“Well you have to be careful about it,” Whitehouse answered.
 
But Sanders seemed convinced that this would be an appropriate next step. “I think it’s exactly what we should do. You indicated, we have a case to make, the world is at stake, politically I think it’s the right thing to do.”
 
McKibben agreed that the stakes now are even higher than they were in the fight against the tobacco industry. “The tobacco industry killed us one smoker at a time. The oil industry’s taking us out one planet at a time.”
 
And as Ocasio-Cortez said, courts have a critical role to play in this fight for a livable planet.
 
“These fossil fuel companies bear responsibility for what they have done. And it will be and should be the power of a court to compel them to do so.”     

Story originally published in DeSmog

Companies are increasingly facing legal action over their false or misleading climate communications, according to a new report examining trends in global climate litigation. That report, released late last week, highlighted a surge in litigation around climate-related greenwashing — what researchers have termed “climate-washing” — over the past few years.

Out of 81 climate-washing cases filed against companies since 2015, nearly two-thirds were brought in 2021 and 2022. By contrast, fewer than 10 such cases were filed both in 2020 and 2019.

Climate-washing litigation confronts various types of deceptive or misleading claims, typically put forth by carbon-intensive corporations, that try to portray their plans, products, or operations as more climate-friendly than they actually are.  By engaging in climate-washing, corporations are trying “to shift public perception regarding their business activities to be viewed as part of the solution to, rather than the primary cause of, climate change,” explains a January 2022 policy briefing examining this type of litigation. According to that briefing, legal actions around climate-washing “are likely to increase.”

The new report from the London-based Grantham Research Institute on Climate Change and the Environment, titled “Global trends in climate change litigation: 2023 snapshot,” confirms that this is already happening. 

“Cases concerned with mis- and disinformation on climate change are far from new, but the last few years have seen an explosion of ‘climate-washing’ cases filed before both courts and administrative bodies such as consumer protection agencies,” report authors Joana Setzer and Catherine Higham said. While climate-washing might incorporate disinformation or misinformation as part of its tactics, it is “a broader term that encompasses the deceptive practices employed specifically to create a positive image on climate-related issues,” Setzer explained. 

She said several factors could explain the recent rise in climate-washing litigation. These include growing climate awareness leading to greater public scrutiny of claims and actions related to climate change, increasing calls for corporate accountability, more attention from regulators to misleading climate-related claims, and the relative ease of bringing these types of cases compared to other climate lawsuits. 

“Climate-washing cases are generally easier and cheaper to bring and win, as most countries will have an established legal basis to protect consumers from false advertising and deceptive practices,” Setzer told DeSmog. 

One type of climate-washing concerns overstated investments in or support for climate action, such as statements or advertising suggesting a company is spending more on renewable energy than it actually is. Recent years have seen a number of complaints filed with oversight bodies targeting this corporate strategy.
In December 2019, ClientEarth filed a complaint with the UK authority under the Organisation for Economic Co-operation and Development (OECD) challenging BP’s “Keep Advancing” and “Possibilities Everywhere” ad campaigns that overemphasized the oil major’s low-carbon activities. BP withdrew the ads shortly thereafter. 

More recently, the campaign group AdFree Cities filed a complaint against Shell with the UK’s Advertising Standards Authority, arguing the oil major’s ad campaign promoting its renewable energy and EV charging initiatives were misleading. The advertising authority issued a ruling several weeks ago banning the ads, finding they did, in fact, misrepresent Shell’s renewable energy initiatives relative to its traditional oil and gas business. In the United States, Shell is also facing charges that it is misleading investors with its stated spending on “renewables and energy solutions.” In a complaint filed with the U.S. Securities and Exchange Commission in February, Global Witness points out that this business category includes fossil gas and gas-related activities, like hydrogen, and therefore overstates what Shell actually invests in carbon-free renewables, like wind and solar.

Furthermore, from France to Italy to the United States, climate campaigners and local and state governments are taking oil and gas majors to court for their deceptive climate claims and communications. Many of the U.S. climate lawsuits brought against Big Oil include consumer fraud claims, alleging companies like ExxonMobil, Chevron, and Shell deliberately misled the public about the climate risks of their products and their business, arguing the deception continues to this day. Multnomah County, Oregon, just lodged the latest of these cases and notably named a new defendant — consulting goliath McKinsey & Company, which has worked for at least 43 of the top corporate carbon polluters.

PR and Ad Agencies Face “Real Risks”

Other firms that service and enable fossil fuel clients could soon find themselves roped into these lawsuits, climate campaigners and experts say.

“This growing wave of lawsuits poses real risks to PR and advertising agencies who are working with fossil fuel companies to mislead the public. We’ve already seen consulting firms like McKinsey pulled into climate lawsuits, it’s only a matter of time before firms like Edelman could find themselves in the same position,” Jamie Henn, director of Fossil Free Media, which houses the Clean Creatives campaign, told DeSmog. Clean Creatives is an initiative working to pressure PR firms and ad agencies to drop fossil fuel clients. 

Henn charged that these firms are misleading the public about the fossil fuel industry’s climate commitments in order to reduce political and regulatory pressure on their clients. “Saying Shell is ‘committed to a low carbon future’ when Shell is actually doubling down on oil and gas development is the definition of false advertising. It’s unethical, it’s immoral, and it may turn out to be illegal,” he said. 

Yet some ad and PR agencies at the highest level continue to dismiss any claims of misdeeds or potential legal risks, according to communications professional Christine Arena, a former Edelman executive and founder of social impact production company Generous Films.

“The CEOs of some of the most offending agencies and PR firms do not seem remotely willing or prepared to acknowledge the legal, social or environmental risks of the greenwash that they are helping to produce and amplify,” she said. “Several have dismissed related criticism and categorically denied all wrongdoing – even as they continue to churn out misleading content and questionable tactics on behalf of oil and gas companies, fossil fuel trade associations and petrostates.”

Even worse, she said, some executives “have lauded their sustainability and trust credentials in the face of mounting public scrutiny. This hypocrisy reveals a stunning lack of integrity and ethical leadership, which in turn undermines the reputation of the communications industry as a whole.”

Challenging Corporate Climate Commitments

In addition to overstated support for climate action or misleading climate-related advertising, another form of climate-washing that is increasingly being challenged centers around companies’ climate pledges or commitments.

“One of the most significant groups of climate-washing cases to emerge in recent years have been cases challenging the truthfulness of corporate climate commitments, particularly where these are not backed up by adequate plans and policies,” Grantham Research Institute’s Setzer and Higham said in a press release accompanying the new report.

In 2021, for example, an Australian shareholder advocacy group brought what it said was Australia’s first greenwashing case against the oil and gas industry, challenging the credibility of gas giant Santos’ promise to reach net zero emissions by 2040. The lawsuit argues the company’s strategy relies heavily on questionable technologies, like carbon capture and storage (CCS), and fuels like hydrogen paired with CCS.

While the oil and gas industry touts its initiatives around CCS, hydrogen, biofuels, carbon offsets, and other purported climate “solutions,” studies have revealed the astounding gap between the sector’s climate-friendly rhetoric and its business-as-usual actions. According to a new analysis released on June 29 by the World Benchmarking Alliance and CDP, there has been a “dangerous lack of progress” across the oil and gas sector in efforts to achieve global climate goals. No company has any plans to phase out oil and gas production, and some are still expanding production.

“These companies are not planning for a low-carbon future and are failing to take responsibility in the immediate and long term,” Vicky Sins, World Benchmarking Alliance’s Decarbonisation and Energy Transformation Lead, said in a statement. “Our findings are a warning for the need for all stakeholders — investors, policymakers and the public — to hold the oil and gas sector accountable.”

Litigation is a key tool for doing so, says Ben Franta, senior research fellow and head of the Climate Litigation Lab at Oxford University. “As fossil fuel producers continue with business as usual and climate damages mount, we will likely see more climate lawsuits, and the stakes will be high,” he told DeSmog. 

Henn said the creative agencies that enable the sector’s climate-washing also may be held accountable.
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“Reports like this make it harder for PR and advertising agencies to claim that they genuinely thought they were helping a fossil fuel client decarbonize,” he told DeSmog, referring to the new World Benchmarking Alliance/CDP analysis. “I don’t think they ever were truly that naive, but now there’s really no excuse. If you’re marketing a Big Oil company as green, you’re lying, and you’re likely to be held accountable. It’s that black and white.”

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.
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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.
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“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.”
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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.

Toxic smoke

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

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.”
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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.
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“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.
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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.
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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.
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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.