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.”
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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.” 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. The first-ever constitutional climate trial in the United States kicks off next week in Helena, Montana as sixteen young Montanans face off against their state government in the groundbreaking Held v. State of Montana youth climate case. At issue is the state’s conduct of promoting and defending fossil fuel development despite longstanding knowledge of the harmful impacts this has on the climate system. Favoring fossil fuels and turning a blind eye to climate impacts in permitting decisions worsens the climate crisis and amounts to violations of Montana’s constitution, the case argues. Montana is one of only a handful of US states that has an environmental right enshrined in its constitution. Dating back to 1972, Montana’s constitution explicitly establishes the right to a clean and healthful environment. Under Article IX (Section 1), the state and its people “shall maintain and improve a clean and healthful environment in Montana for present and future generations,” and the legislature must enforce this right and ensure protection of the “environmental life support system.” The right to a clean and healthful environment is also provided for under the constitution’s list of inalienable rights (Article II, Section 3). But the state’s heavy exploitation of coal, oil and gas threatens this fundamental right. Drilling and mining not only scars the land and pollutes the air and water, but also contributes to dangerous climate change that manifests as devastating drought and wildfires, disappearing mountain glaciers and winter snowpack, warming water bodies and other ecological disruptions. Several expert witnesses for the youth plaintiffs will testify next week to the specific climate impacts already unfolding in Montana: Ecologist Jack Stanford, professor emeritus at the University of Montana, will speak to the adverse impacts on freshwater systems and hydrology; Steven Running, another professor emeritus at University of Montana and a chapter lead author of the 4th IPCC Assessment Report, will explain how anthropogenic CO2 emissions are harming ecosystems, water and communities; Daniel Fagre, research ecologist who worked extensively in Glacier National Park for the US Geological Survey, is scheduled to testify to the climate impacts on glacial retreat. Other experts will speak to the harmful health effects resulting from the climate crisis, including specific impacts on children. Doctors Robert and Lori Byron and Dr. Lise Van Susteren are expected to testify on the youth plaintiffs’ side.
Arguments and evidence will be presented explaining how these damaging impacts stem from fossil fuel development; one expert is expected to quantify Montana’s share of greenhouse gas emissions, which largely come from its generation of fossil fuels. The state is home to part of the Bakken shale gas formation and to the largest recoverable coal reserves in the US. Six coal mines continue to operate in the state. Montana has enacted policies designed to boost fossil fuel extraction and disregard the climate consequences of doing so. In 2011 the state legislature amended two laws to mandate this conduct – the state added provisions into the state energy policy statute to promote increased fossil fuel development, and it inserted a provision into the Montana Environmental Policy Act stating that Montana would not be allowed to consider impacts beyond state borders when doing environmental reviews, which implicitly barred consideration of climate impacts. The Held lawsuit, initially filed in 2020, challenged both of these policies as contravening the state constitution. But as the state’s attempts to toss the case failed, the 2023 Republican-controlled legislature took swift action to try to block the case from reaching trial. In March the governor signed a bill repealing the state energy policy, and last month the state passed another bill changing the language of the MEPA provision to explicitly prohibit consideration of greenhouse gas emissions and climate impacts both in and outside the state during environmental reviews. Attorneys for the state argued that both of these actions rendered the youth plaintiffs’ claims moot. And while the judge did agree to dismiss the part of the case targeting the state energy policy, she refused to cancel the trial altogether, leaving intact the MEPA-related claim. The case will be a major test of the state’s constitutional guarantee of the right to a clean and healthful environment. A key question is whether or not this right includes the right to a stable climate system. In her recent ruling, the judge indicated that that she may be inclined to answer that question in the affirmative, writing: “Based on the plain language of the implicated constitutional provisions… it would not be absurd to find that a stable climate system is included in the “clean and healthful environment” and “environmental life-support system”. If the judge rules in the youths’ favor, she would be declaring the state’s promotion of fossil fuels, and particularly the policy banning consideration of climate and GHG emissions under MEPA, to be unconstitutional. This kind of declaration could have considerable impact not only on energy policy in Montana, but beyond the state as well. “Although it’s set in Montana and based specifically on Montana law, its repercussions are much, much broader than Montana,” said Sandra Zellmer, an environmental law professor at the University of Montana. The trial will make history as the first in a climate lawsuit grounded in constitutional claims in the US, and the first in a US climate case brought by youth against their government. “All eyes will be on Montana next week,” said Laura Gehrke, events manager at Our Children’s Trust, an Oregon-based nonprofit law firm that has spearheaded US youth climate litigation. The trial is scheduled to last two weeks, June 12 – June 23, and will be held at the First Judicial District Court in downtown Helena. A livestream will be available, and more information including how to access the livestream is at bit.ly/MTClimateTrial. Climate in the Courts will be on-the-ground in Helena throughout the two weeks to cover this historic trial. The groundbreaking constitutional climate lawsuit Juliana v. United States is back on track after a federal judge in Oregon ruled that the youth-led case can proceed under a revised version of the complaint.
In an order issued June 1, US District Judge Ann Aiken granted the plaintiffs’ request to file an amended complaint. Lawyers for the youth plaintiffs say this would allow the case, first filed in 2015, to proceed towards trial and a decision on the merits. The case had twice been scheduled to go to trial but relentless opposition from the US government derailed the trial, and the Ninth Circuit Court of Appeals eventually dismissed the case in January 2020. Judge Aiken’s ruling revives the landmark litigation, which accuses the federal government of violating the fundamental rights of young people by promoting and perpetuating a fossil fuel energy system that exacerbates dangerous climate change. The case had been described as the “case of the century” and the “most important case on the planet.” Its reactivation comes as the US government passes a debt ceiling bill that greenlights a fossil gas pipeline and weakens the National Environmental Policy Act. The Biden administration’s backing of the Mountain Valley Pipeline is the latest in a string of fossil fuel projects it has authorized, including the massive Willow oil drilling project in the Alaskan Arctic. Climate scientists and energy experts have made it clear there can be no new fossil fuel development if the world expects to meet its goals for a net-zero energy system and limiting temperature rise to no more than 1.5°C. Although the Ninth Circuit Court ultimately dismissed the Juliana case in a divided opinion, the court did acknowledge the gravity of the climate emergency, finding it was approaching “the point of no return.” The court also noted that federal government has long understood the climate dangers of fossil fuels. But the majority opinion determined that it was not in the power of the judiciary to grant the injunctive relief requested by the youth plaintiffs, as they were seeking a court order for the government to develop a climate recovery plan. Such a plan would involve complex policy decisions and supervising its implementation would be a decades-long task for the courts. To get around that hurdle, lawyers for the youth plaintiffs asked permission to amend the complaint, narrowing the relief they were seeking to only a declaratory judgment – a court order declaring the federal government’s perpetuation of a national energy system reliant on fossil fuels to be unconstitutional. Plaintiffs’ lawyers filed the request to amend the complaint with Judge Aiken in March 2021. More than two years later, Aiken issued her ruling permitting the amended complaint. As she wrote in her order: “a declaration that federal defendants’ energy policies violate plaintiffs’ constitutional rights would itself be significant relief.” The youth plaintiffs and their lawyers were relieved and pleased by the ruling and said they are ready to finally present their case at trial. “We’ve been waiting for our day in court and now I can say with overwhelming joy that our day is coming,” said Miko Vergun, 22-year-old plaintiff from Beaverton, Oregon. “Given the straightforward nature of Judge Aiken’s opinion it’s clear the case is ready to proceed to trial. Our plaintiffs are ready for justice to be done in the courtroom,” Phil Gregory, co-counsel for the youth plaintiffs, said in a statement. The nonprofit law firm Our Children’s Trust, which is helping represent the young people in their landmark case against the federal government, said plaintiffs intend to seek a prompt trial date. Story originally published in DeSmog
In a first at the state level, the City of Hoboken, New Jersey recently added racketeering charges to its climate lawsuit against major petroleum producers and their national trade group the American Petroleum Institute (API). Hoboken is making this claim against fossil fuel companies under the state-level equivalent of the Racketeer Influenced and Corrupt Organizations (RICO) Act, a federal law used successfully to prosecute organized crime groups such as the Mafia starting in the 1970s and later the tobacco industry. Puerto Rico lodged federal racketeering charges against the industry in a class action climate case last November. “These racketeering cases should be viewed as a new legal front against the oil and gas industry,” Richard Wiles, president of the Center for Climate Integrity, which advocates for climate accountability from polluters, said by email. Including a racketeering charge in these lawsuits helps “tell a more robust and full story of what was really happening,” said Delta Merner, a scientist working on climate litigation at the Union of Concerned Scientists. “There really were coordinated efforts to systematically question and cast doubt on the science around climate change.” Hoboken’s case, initially filed in September 2020, contends that defendants ExxonMobil, Shell, BP, Chevron, ConocoPhillips, Phillips 66, and their lobby group API deliberately misled the public in order to stave off climate action and protect profits. The lawsuit already included claims of public and private nuisance, trespass, negligence, and violation of the New Jersey Consumer Fraud Act. By adding a racketeering claim, the city is alleging that the defendants not only engaged in deceptive acts, but did so in a planned and coordinated way. “Defendants have conspired to deceive the world for decades,” the amended complaint states in its opening line. “I think that the addition of a RICO claim helps demonstrate the gravity of the alleged conduct,” Karen Sokol, law professor at Loyola University New Orleans College of Law, told DeSmog by email. “It was not simply a matter of each named defendant’s deception, but rather their collective planning and implementation of multi-pronged strategies to deceive. That sort of conspiratorial conduct has the potential to be particularly harmful, a recognition reflected in RICO laws.” More than two dozen communities across the U.S. including municipalities, states, and one fishermen’s trade association are currently suing major fossil fuel producers seeking to recover climate-related costs and hold the companies liable for their documented misrepresentations around climate change. At the heart of these climate liability lawsuits are allegations that the industry defendants engaged in a sophisticated, decades-long campaign of deception to distort climate science and conceal the climate consequences of its fossil fuel products. And, as many of the cases argue, the industry’s deceptive conduct continues to this day through even more nuanced strategies. “These are less about outright climate denial and more about creating the appearance of consensus with climate action advocates on responding to the climate crisis,” Melissa Aronczyk, associate communications professor at Rutgers University, told DeSmog. “This approach allows companies to maintain their reputation; but it’s really just climate denial in disguise.” Three Stages of the “Scheme to Defraud” The amended Hoboken complaint argues that the defendants coordinated a “scheme to defraud the public” dating back more than 50 years. This alleged scheme unfolded in three stages. First, the fossil fuel defendants’ own scientists studied the impact of fossil fuel combustion on climate change and warned executives of the potentially catastrophic consequences, but these warnings were not shared with the public. As early as 1959, for example, physicist Edward Teller spoke about global warming that could melt the ice caps and submerge coastal cities at an oil industry symposium organized by API. In 1965, API’s own president described to an oil industry conference federal research into climate change spurred by fossil fuels, saying, “The substance of the report is that there is still time to save the world’s peoples from the catastrophic consequence of pollution, but time is running out.” Over the following decades into the 1980s, the industry conducted climate research and had reports and memos warning of the impacts of fossil fuels on the climate system. But then the oil industry started to wage a massive disinformation campaign aimed at deceiving the public about the climate dangers of fossil fuels. This was the second stage of the scheme, lasting through the 2000s. It involved spending tens of millions of dollars on misleading advertising and communications and operating front groups and funding think tanks to help pollute the information landscape. The Global Climate Coalition, formed in 1989, played a central role as a front group for carbon-intensive industries. This group, whose membership included major oil companies and API, spent $13 million on deceptive advertisements designed to cast doubt on climate science. API also created what it called the Global Climate Science Communications Team in the 1990s as part of this allegedly fraudulent communications strategy, and in 1998 that team produced a communications plan, later leaked, which equated “victory” with public uncertainty on climate science. The third stage of the scheme, as described in the complaint, constitutes concerted greenwashing by the industry to portray the oil and gas business as part of the climate solution. This latest phase has unfolded over the last decade and continues today. The strategy involves tactics like marketing the methane-based fossil fuel natural gas as clean, overstating investments in or activity around clean energy through misleading advertising, and promoting unproven or unscalable technologies as climate solutions. “These strategies are designed for companies to publicly appear to be responding to the urgency of climate change, while behind the scenes, they’re actively lobbying to prevent or downgrade the impact of environmental or climate regulation,” Aronczyk said. This delay approach has a real cost for society and the climate, says Benjamin Franta, founding head of the Climate Litigation Lab at Oxford University. “Greenwashing…causes irreversible damage by misdirecting attention, misinforming consumers and policymakers, and wasting time. Legal approaches for counteracting this harmful practice are urgently needed.” Hoboken’s case is the first to frame the ongoing nature of the fossil fuel industry’s alleged deception in the context of a state-level racketeering charge. The amended complaint calls the acts of racketeering part of these companies’ “regular way of doing business.” ExxonMobil, Chevron, Shell, and ConocoPhillips did not respond to a request for comment. BP and Phillips 66 declined to comment. The complaint specifically portrays API as a corrupt or deceptive enterprise, arguing that the oil industry trade association “has been engaged in the business of deceiving the public about the known dangers of climate change for decades — and it continues to engage in such business today.” API pushed back against this allegation, claiming that communities bringing the climate lawsuits are engaging in a “coordinated campaign” of their own. “This ongoing, coordinated campaign to wage meritless lawsuits against companies providing affordable, reliable energy is nothing more than a distraction from these important issues and an enormous waste of taxpayer resources,” API Senior Vice President and General Counsel Ryan Meyers said in an emailed statement. “We believe that climate policy is for Congress to debate and decide, not the court system.” But API works behind the scenes to influence Congress and has spent over $127 million since 1998 on lobbying activities. The oil and gas trade association has spent even more money on public relations and advertising, according to researchers. And in 2021, Franta published a peer-reviewed study that found API was putting out misleading information and misrepresenting climate science as early as 1980. “Historical and investigative research show that the API has for decades played a key, coordinating role in deceiving the public about global warming, greenwashing the industry’s image, and obstructing efforts to prevent climate damages,” said Franta. Big Oil’s Conduct “Fits Pretty Perfectly, Almost Like a Glove” to RICO Act Violation Hoboken submitted its amended complaint last month to the New Jersey Superior Court of Hudson County. The case will be proceeding in this state court after the U.S. Supreme Court rejected a petition from the oil company defendants attempting to force the litigation into federal courts. “We spent two years fighting to get back to state court and now that we’re here, before we start all the motions to dismiss, it made sense [to amend the complaint] since New Jersey has a RICO statute that’s similar to the federal statute but is a little more receptive to plaintiffs’ claims in some areas,” Matthew Brinckerhoff, an attorney with the law firm Emery Celli Brinckerhoff Abady Ward & Maazel LLP that is representing Hoboken in this case, told DeSmog. He said Hoboken’s case is structured similarly to the federal racketeering case that the U.S. Department of Justice ultimately brought against the tobacco companies, which included claims of disseminating deceptive communications and advertising. The legal term for this in a racketeering case is mail or wire fraud. “In order to prevail we have to prove that defendants conspired to defraud the public at large, and that they did so using the mail or wires,” Brinckerhoff explained. He said the conduct of the Big Oil defendants “fits pretty perfectly, almost like a glove, with how your typical RICO statute is structured.” Sharon Eubanks, an attorney who previously led the Justice Department’s successful RICO case against the tobacco industry, noted in a commentary published in the Guardian last year that not only are the behavior and objectives of the tobacco and fossil fuel industries similar, but so are their liabilities. “And like the tobacco industry while I was in public service, the deceptive advertising and PR of the fossil fuel industry is now under intense legal scrutiny,” Eubanks wrote. She concluded that the “legal tipping point may be soon approaching for fossil fuel companies and the spin masters that work for them.” The Center for Climate Integrity’s Wiles agrees with the tobacco industry comparison and expects more communities to follow suit with racketeering charges against oil firms. “It’s been obvious for years that fossil fuel companies have conspired together to lie to the public about the dangers of their products — just like tobacco companies before them,” he said. “The Puerto Rico and Hoboken cases are just the first to present the evidence in a lawsuit.” Story originally published in DeSmog
Montana has hired a climate scientist turned climate contrarian to be an expert witness in an upcoming trial challenging the state’s promotion of fossil fuels. Climatologist Judith Curry has already billed the state around $30,000 for a report filed in the case Held v. State of Montana, according to the deposition she made in December to an attorney for the 16 young Montanans suing the state. Curry also claimed that she charged $400 an hour for her consulting work, although she did not disclose the full amount Montana will pay her for appearing in court. Julia Olson, the lawyer who took Curry’s deposition, has described her as “the number one climate skeptic scientist that the Republicans go to for testimony in Congress, that the fossil fuel industry goes to.” Olson is the executive director of the nonprofit law firm Our Children’s Trust, which has spearheaded youth climate change lawsuits across the United States. At a March 2023 hearing of the Senate Budget Committee, Curry testified that calling climate change a crisis was “at odds with professional judgments of climate risk.” Formerly a professor at the Georgia Institute of Technology, Curry now runs a private weather forecasting company called Climate Forecast Applications Network. The company’s clients include electric utilities, energy traders in natural gas, and two petroleum companies, according to her deposition. Montana may end up leaning heavily on Curry’s anticipated testimony, as she will be one of just a few expert witnesses defending the state at next month’s trial. Neuropsychologist Dr. Debra Sheppard and economist Terry Anderson, who is a senior fellow at the Hoover Institution, a free-market think tank, are also scheduled to appear for the state. The lawyers for the Montana youth, who first filed their complaint in 2020, intend to bring a dozen expert witnesses to the stand. This case is set to become a landmark for U.S. climate litigation. It will be the first youth climate lawsuit against a government to go to trial, and the first trial in a case challenging fossil fuel friendly policies on constitutional grounds. The trial is scheduled to begin on June 12 at the First District Judicial Court in Helena, Montana. Questionable Expertise Curry held faculty positions at the University of Colorado Boulder, Penn State University, and Purdue University prior to her tenure at Georgia Institute of Technology, where she chaired the School of Earth and Atmospheric Sciences from 2002 to 2014. She has also been a fellow of the American Meteorological Society, the American Association for the Advancement of Science, and the American Geophysical Union. Late in her academic career, Curry began taking public positions on climate change that aligned more with climate science denial rather than credible climate science. In a 2007 op-ed for The Washington Post, Curry stated that “the current debate is whether warming matters, and whether we can afford to do anything about it.” A decade later — in 2017, the year she retired from Georgia Tech — Curry blogged that “we don’t know how much of recent warming can be attributed to humans.” But in 2014, the United Nations Intergovernmental Panel on Climate Change (IPCC) had concluded that human factors are “extremely likely” to be the dominant cause of observed warming — accountable for more than half of the rise in global average surface temperature — since the mid-20th century. In the report she submitted to the court last fall, Curry claimed that there were too many uncertainties in climate science to judge the origins of climate change. She significantly downplayed the role of human activity in causing climate change, while emphasizing natural climate variability as an important factor in causing it. Curry did not acknowledge in her report that her views contradict the longtime consensus among the vast majority of climate scientists that burning coal, oil, and gas for energy has been the leading driver of climate change. “She does not have a leg to stand on,” climate scientist Kevin Trenberth told DeSmog. Trenberth, who has known Judith Curry since the 1990s, is scheduled to appear as an expert witness for the youth plaintiffs at the trial. “She always blames everything on natural variability and greatly underplays human induced climate change.” In a filing with the court last fall, Trenberth stated that Curry’s shift towards climate contrarianism “coincided with her career moving away from original research and peer-reviewed publishing in academia toward private weather and climate forecasting for companies through her business CFAN, including those in the fossil fuel energy industry.” Curry’s report also delved into topics beyond climatology, such as youth climate anxiety — which she termed “harm to children from apocalyptic climate change rhetoric” — and Montana’s energy system and environment. At her December deposition, Curry confirmed that she had never conducted research or even reviewed scientific studies on Montana’s climate. Her credibility in these areas, Curry said, derived from her skills as a fast reader, and a “great Googler and finder of information” who is able to “assimilate a lot of information.” “What I bring to the table is meta expertise,” she said, “something that is increasingly called ‘wicked science.’” According to Olson, the deposition demonstrated that Curry is “not really acting as a scientist anymore, but more of someone with personal opinions, blogs, things that really undermine her credibility to testify in court.” In February, lawyers for the Montana youth filed a request with the court to bar Curry from testifying on topics outside climatology including renewable energy resources, engineering and electric power systems, government energy policy and law, economics and greenhouse gas accounting, Montana’s environment, climate impacts in the state, children’s mental health and psychology, mountain snow hydrology, glaciology, forest management or forest fire science, Google research expertise, and “wicked science.” Curry declined DeSmog’s request to be interviewed for this story. Wicked Science Wicked science is an emerging academic discipline that seeks to prepare students in the sciences to grapple effectively with the social and political complexities of society’s most complex challenges, or “wicked problems.” The term was coined by Ohio State University anthropologists Mark Moritz and Nick Kawa. Addressing a wicked problem like climate change requires a collaborative approach, says Moritz, who has led a successful initiative to establish a graduate interdisciplinary specialization in wicked science at Ohio State. “Students need transdisciplinary skills that allow them to work effectively with a diverse group of stakeholders, in addition to their scientific skills that they develop as climate scientists, agricultural engineers, anthropologists, et cetera.” What originated as a conceptual framework within academia, however, now appears to be spreading into the sphere of climate science deniers, including Judith Curry. During a virtual presentation at the Heartland Institute’s 2023 International Conference on Climate Change (ICCC) — an annual gathering of climate deniers and their political allies — she touted the wicked science concept, and encouraged other climate deniers to adopt the “wicked scientist” label. “In many ways this ICCC meeting is wicked science in action,” Curry said. “The next time someone calls you a denier, you can respond with this: ‘Give me a break, I’m a wicked scientist.’” Moritz expressed concern at what he said appeared to be a “co-opting” of the term. He also debunked Curry’s claim during the presentation that wicked science “treats uncertainty as of paramount importance.” “The uncertainty is just one of the many aspects of wicked science. It’s not the most important,” Mortiz told DeSmog. “It doesn’t mean that you don’t take action.” “What Curry says is that she finds and assimilates data on the internet, but that is just one step in making sense of data,” he said. “A scientist would ask all kinds of questions about the data and examine its reliability, validity, sources, and biases in order to come to a better understanding of the problem at hand.” Kawa told DeSmog that Ohio State’s specialization in wicked science trains students on how to bridge differing views. “To be sure, a major challenge here is when bad faith arguments are made to favor a particular outcome, or when disinformation is used to manipulate different communities of stakeholders,” Kawa said. “There are no board-certified wicked scientists, so everyone can call themselves a wicked scientist,” Moritz told DeSmog. “However, being ‘smart’ and ‘Googling well’ does not make one a wicked scientist.” Story originally published in DeSmog
The U.S. Supreme Court on Monday denied requests from major oil companies to intervene in climate liability lawsuits aimed at holding fossil fuel producers accountable for climate damages and alleged disinformation campaigns. The court’s denial of the industry’s petitions means that the lawsuits can advance in state courts, where companies like ExxonMobil and Shell could be forced to face trial. “Big Oil companies have been desperate to avoid trials in state courts, where they will be forced to defend their climate lies in front of juries, and today the Supreme Court declined to bail them out,” Richard Wiles, president of the advocacy organization Center for Climate Integrity, said in a statement. More than two dozen communities across the United States have filed climate lawsuits against fossil fuel companies over the past six years. Until now, the litigation has been tied up in procedural wrangling over which courts — federal or state — should handle the cases. Lawyers for the fossil fuel industry have tried to force the cases into federal courts, where they see an easier path to getting the lawsuits thrown out. The Supreme Court has previously ruled that the Clean Air Act displaces climate-related cases arising under federal common law, and a climate lawsuit filed in federal court by New York City in 2018 was tossed given that precedent. But federal courts that have considered the jurisdiction issue, including six different appeals courts, have unanimously decided that the cases should proceed in state courts. The industry had tried to overturn those decisions by taking the cases to the Supreme Court — but the highest federal court has now effectively shut the door by refusing to review the cases at this stage. “This is excellent news for the plaintiffs in these climate cases,” Richard Lazarus, a law professor at Harvard University, told DeSmog. “There was a significant risk that the Court might grant review,” he said, adding that future Supreme Court petitions in other climate liability cases “are very unlikely to be granted in light of this ruling, which was in the face of a full court press from industry.” The Supreme Court’s orders issued Monday apply to a handful of climate lawsuits, including cases brought by the city of Baltimore, the city and county of Honolulu, several coastal communities in California, and the state of Rhode Island, as well as the city and county of Boulder and the county of San Miguel in Colorado. In the Colorado communities’ case, the Supreme Court had asked the U.S. Department of Justice to weigh in. Last month the Solicitor General filed a brief siding with the communities’ position that the litigation belongs in state court and urging the high court to decline review. The Justices ultimately declined review, though the court’s order noted that Justice Kavanaugh “would grant the petition” in this case. Justice Alito, who owns stock in several oil companies, including ConocoPhillips and Phillips66, recused himself from consideration of the petitions in all of the climate cases. “Every court that has reviewed this case has come to the same conclusion–that it should be heard in a local court, by a local jury. The Supreme Court’s decision today confirms that,” EarthRights General Counsel Marco Simons said in a statement. EarthRights is helping represent the Colorado communities in court against ExxonMobil and Suncor in their climate liability case that was initially filed in 2018. Suncor did not immediately respond to a request for comment. ExxonMobil spokesperson Todd Spitler said the company “will continue to fight these suits, which are a waste of time and resources and do nothing to address climate change.” “We are confident the pending climate lawsuits in the U.S. will ultimately be dismissed,” Theodore J. Boutrous, Jr., of Gibson, Dunn and Crutcher, and lead counsel for Chevron in the climate liability lawsuits, said in an emailed statement. “Climate change is an issue of national and global magnitude that requires a coordinated federal policy response, not a disjointed patchwork of lawsuits in state courts across multiple states. These wasteful lawsuits in state courts will do nothing to advance global climate solutions, nothing to reduce emissions, and nothing to address climate-related impacts,” he added. “The Shell Group’s position on climate change has been a matter of public record for decades. We agree that action is needed now on climate change, and we fully support the need for society to transition to a lower-carbon future. We continue to reduce our emissions and help customers reduce theirs as we supply vital energy the world needs today,” a Shell spokesperson said in an emailed statement. “Addressing climate change requires a collaborative, society-wide approach. We do not believe the courtroom is the right venue to address climate change, but that smart policy from government and action from all sectors is the appropriate way to reach solutions and drive progress.” BP declined to comment. Contrary to the industry’s characterization of the lawsuits, climate accountability advocates say the cases are about holding the industry liable for lying to the public about the climate harms of its products. “ExxonMobil, Suncor, Chevron, Shell and other fossil fuel companies have known for decades that heat-trapping emissions from their operations and the use of their products drive climate change and its impacts, but they have continued to deceive the public and obstruct meaningful action,” said Delta Merner, lead scientist at the Science Hub for Climate Litigation at the Union of Concerned Scientists. “The decision sends a powerful message to fossil fuel companies: Evading responsibility will not be tolerated.” With the Supreme Court’s denial of the industry’s petitions, climate liability cases brought by Boulder, Baltimore, Honolulu, and other communities are now cleared to move forward in state courts where the proceedings will focus more on the substantive claims of alleged disinformation and deception. “This changes the calculus significantly,” Karen Sokol, professor of law at Loyola University New Orleans College of Law, told DeSmog. Until now, the allegations of disinformation have not been litigated, she said, but that is about to change. “Now things will become more interesting for the general public in terms of just thinking of how we got here in this stage in the climate crisis and the industry’s contributions to really polluting the information landscape,” Sokol said. “It’s important just as a matter of democratic governance to understand this sort of conduct.” |
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