A Victory for a Clean and Healthful Environment
Landmark Case, Held v. Montana Wins in District Court, but Worries Persist
On Monday, August 14, sixteen young people ranging from ages five to 22 won a landmark lawsuit that charged Montana’s failure to consider climate change when approving fossil fuel projects was unconstitutional.
The critical question at stake was if the right to a healthy, livable climate is protected by state law.
Montana’s 1972 Constitution requires officials to maintain a “clean and healthful environment,” and stipulates that the state and individuals are responsible for maintaining and improving the environment “for present and future generations.” Only a handful of other states have similar protections in their constitutions, helping explain why similar cases have been dismissed.
The not-for-profit group Our Children’s Trust is a law firm whose mission “provides strategic, campaign-based legal services to youth from diverse backgrounds to secure their legal rights to a safe climate.” Attorneys for the organization have filed climate lawsuits in every state on behalf of young plaintiffs since 2011, most of which were dismissed before trial. The ruling in favor of the plaintiffs was over ten years in the making.
Climate science was on trial, and climate science won. What should be common sense and human decency won.
In the ruling, Montana District Court Judge Kathy Seeley found that the state’s emissions “have been proven to be a substantial factor” in affecting the climate and that laws limiting the ability of regulators to consider climate effects were unconstitutional.
Montana with 5,000 gas wells, 4,000 oil wells, four oil refineries and six coal mines is a “major emitter of greenhouse gas emissions in the world, in absolute terms, in per person terms, and historically,” Judge Seeley wrote. The court found that Montana is responsible for as much carbon dioxide as produced by Argentina, the Netherlands or Pakistan when considering the amount of fossil fuels the state extracts, burns, processes and exports.
Climate science was on trial, and climate science won. What should be common sense and human decency won. It’s a thrilling victory and for the kids and laudable testimony for the attorneys who have potentially changed the conversation in similar cases going forward.
Arguments against this ruling, were hilariously weak.
Blowing smoke: the States’ case against the plaintiffs
The state called just one "expert" witness to the stand, Terry Anderson, an economist with ties to denialism in the tobacco industry, who promotes “free market environmentalism,” as if the words themselves don’t conflict. During cross-examination, Anderson revealed he was billing the state $500 per hour and had “perhaps” worked for 25 hours or more.
Not a climate scientist, Mr. Anderson nevertheless generously offered his opinion on the subject. “Montana energy or environmental policies have virtually no effect on global or local climate change because Montana’s GHG (greenhouse gas) contributions to the global total is trivial,” he stated. Apparently, the cumulative emissions of the aforementioned three countries are trivial as well. By this logic, Montana may as well ignore its role as part of a nation whose GHG emissions are second only to China.
Mr. Anderson also argued climate change could ultimately benefit Montana, with longer growing seasons and the potential to produce more valuable crops. Mr. Anderson is an agricultural expert as well. Impressive. However, perhaps Terry was unaware that 53.3 percent of the state is currently under drought. Here’s a helpful interactive drought map for you, Mr. Anderson, supplied by NOAA. NOAA stands for the National Oceanic and Atmospheric Administration, in case you haven’t heard of that. Scientists work there.
Here’s another interesting interactive map for you, sir. It shows active wildfires in your state. When I started this article, there were 42 active fires, 1222 for the year, and 71,036 acres burned. Two days later there are 57 active fires, 1251 for the year, and 87,103 acres burned. Drought seems to be trending fires in the wrong direction. You can thank me for this information, later, I don’t mind.
Remember the historic flooding in Montana last year, Professor Anderson? You know, the catastrophic rain, land slides and devastating flooding that closed Yellowstone and forced 10,000 emergency evacuations? The one declared a federal disaster, that conservatively cost $29 million in property damage? It’s good that you as a free market economist can advise people, who lost their homes and had no flood insurance, or can’t afford flood insurance. Below are some pictures to jog your memory. The full photo essay from CNN can be found here, my friend.
As I mentioned, other states have similar constitutional guarantees of the right to a clean and healthful environment, such as Pennsylvania, Massachusetts and New York. Similar to Montana, young people in Hawaii, Utah and Virginia have filed lawsuits that are in the courts. A federal case brought by more young people wondering if they have a future on Earth, stalled for years, is moving forward again, heading toward trial in Oregon, Juliana v United States.
A battle won, but the fight goes on
Less comforting is the fact that this Montana case is not over. Predictably, the attorney general’s office (not the attorney general himself) announced the state would appeal, to send the case to the Montana Supreme Court.
A person whom I find ironically named given the subject, Emily Flower, acting as a spokesperson for attorney general, Austin Knudsen, said, “This ruling is absurd, but not surprising from a judge who let the plaintiffs’ attorneys put on a weeklong taxpayer-funded publicity stunt that was supposed to be a trial,” adding, “Montanans can’t be blamed for changing the climate.”
Emily was also the Press Secretary for distinguished US Senate Candidate Hershel Walker, according to her LinkedIn resume.
Ms. Flower, I’m sure your comments were well-intended, but the issue was laws limiting the ability of regulators to consider climate effects that undermine the state constitution. I am happy to explain this to you. Perhaps your knickers are on too tight, constricting blood flow to your noggin.
Notorious climate denier, denied the stand
The state also considered calling Dr. Judith Curry, a heretic among climate scientists who has testified numerous times for Republican-led House committees, claiming that the dangers of global warming are overstated. Perhaps after Terry Anderson’s performance, the state reconsidered the wisdom of risking another marginal witness. She was also a Trump administration candidate for a "Presidential Committee on Climate Security" to perform an "adversarial scientific peer review" of climate science. If you feel like you’re reading this again, it’s because you are. I touched on Ms. Curry in my last article, about the tragedy still unfolding in Lahaina, in which fire traveled a mile a minute because of drought and winds from hurricane Dora.
Speaking of weeklong taxpayer-funded publicity stunts, Ms. Curry was paid $30,000 for her preparation, but was not called as a witness.
Rikki Held and the plaintiffs
Held v. Montana is named for Rikki Held, the 22-year-old plaintiff in the case. Her name will forever be attached to the first constitutional climate change lawsuit to reach trial.
Ms. Held was compelled to bring this suit with the other 15 plaintiffs from what she experienced on her family’s cattle ranch, comprising thousands of acres. She witnessed the destruction of the land from climate change, in droughts, wildfires, heat waves and floods and its impact on their livelihood. This compelled an interest in science, and she is credited with helping U.S. Geological Survey researchers survey cross-sections of Montana’s Powder River, which passes through her family’s ranch, when she was in just middle school.
Rikki testified that droughts have left "skinny cows and dead cattle" on her family's ranch in eastern Montana, and wildfires have made ash fall from the sky.
This spring, Ms. Held graduated from Colorado College with a degree in environmental science and is interested in environmental research as a career path.
Among the plaintiffs were youth of Native American tribes including Crow, Salish and Kootenai people.
Crows, Shane Doyle and his daughters Ruby, 15, and Lilian, 12, look forward to picking chokecherries near his family’s Bozeman home every season. Ruby and Lilian crush the berries into syrup. The fruits’ ripening coincides with the annual fair on Crow Indian Reservation in the center of the state, where the Doyles travel to the celebration, participating in traditional dances, marching in parades, and sleeping in teepees. Chokecherry soup is one of the staples, but in recent years the berries haven’t ripened in time. The fair has also been badly affected by increasing hot temperatures and wildfire smoke.
Sariel Sandoval, 17, at the time the lawsuit was filed, grew up on the Flathead Indian Reservation as a member of the Confederated Salish and Kootenai Tribes. Now studying at the University of California, Berkeley, an emotional Sandoval pointed out that the identifying as Salish people, sqelixw, the root word translates to ‘flesh and land,’ “showing the importance in our role as human beings and our connection to the land and the natural environment.”
She also pointed out the tribe’s creation stories, including coyotes, can be told only when there’s snow on the ground. “One day we’re not going to have any snow on the ground. What happens to the stories?”
People with health conditions, such as asthma, are at increased risk during wildfires. A lover of the outdoors and running, Mica, 15, who lives in Missoula has frequently been bothered by smoke from wildfires and reduced to a “prisoner in his own home,” as he put it in a poem he read on the stand.
An environmental activist in high school, Grace Gibson-Snyder, 19, spoke of similar fears and experiences as the other plaintiffs. She has suffered wildfires regularly shroud her hometown of Missoula and watched water levels drop in area rivers.
“We’ve seen repeatedly over the last few years what the Montana state Legislature is choosing,” Gibson-Snyder said. “They are choosing fossil fuel development. They are choosing corporations over the needs of their citizens.”
The right for all people to clean air, water, food and livable climate conditions should be an inalienable right. Held V. Montana is a significant victory that will be tested in Montana’s State Supreme Court. I will be watching this case and similar ones such as Juliana v. the United States, which appears headed to a battle with the inconsistent Biden administration.
As always, thanks for reading and I welcome your thoughts.
This case, and this verdict, is indeed a "sane thought for insane times." Bravo to the kids, their attorneys, everyone else who supported them, and the judge!