A Climate Trial in Montana Sets the Scene for More
Held v. Montana is the primary of many climate lawsuits by youth plaintiffs to go to trial. Big Sky Country is a fitting forum for this phase of climate change litigation.
Young individuals who have probably the most to lose from climate change have filed lawsuits in all 50 states, but the primary of those cases to go to trial can be in Montana—unofficially nicknamed “the Last Best Place,”—which could be the perfect venue for a landmark trial about government culpability for the worldwide climate crisis.
Starting June 12, reporters and tv crews from across the country will converge on a quaint courthouse overlooking Helena, one among the smallest capital cities within the country and one which was founded by prospectors as a mining camp. That’s where 1st Judicial District Court Judge Kathy Seeley, a state judge, will oversee a 10-day trial within the case of Held v. Montana.
The 16 teenage and child plaintiffs are searching for to pressure the state to alter its energy policies, which they are saying involve “systemic authorization, permitting, encouragement, and facilitation of activities promoting fossil fuels and leading to dangerous levels of greenhouse gas emissions, without regard to climate change impacts or the elemental rights of Youth Plaintiffs and future generations of Montanans.” The nonprofit Our Children’s Trust has facilitated this lawsuit and many more across the country.
At the center of the case is the Montana structure’s guarantee of a “right to a clean and healthful environment” and the alleged violation of that all through the state’s unwavering support for fossil fuels. In their criticism, plaintiffs give attention to the “ongoing implementation of the State Energy Policy and the Climate Change Exception to the Montana Environmental Policy Act (MEPA), that are harming these Youth Plaintiffs and infringing on their constitutional rights.” Slightly than any form of injunction, the plaintiffs are searching for declaratory relief, or a ruling that states their rights have been violated.
Now, I know it might sound naïve to suggest Montana is any sort of friendly forum, given the state’s political leanings. Yes, Montana is deep red. (Once while driving I-15 in Montana, I saw a bumper sticker that read, “If you must burn the American flag, wrap it around yourself first.”) But there are several the reason why this trial offers a novel opportunity to ascertain a fact pattern and test the legal theories of those cases.
The Treasure State
For one, Montana is a national treasure. Big Sky Country could also be Montana’s best-known moniker, however it’s technically the Treasure State, a reference to its wealth of mineral resources (gold, silver, copper, and platinum) but in addition its grandeur. (What number of states have inspired so many nicknames?) Montana is home to the natural wonder that’s Glacier National Park in addition to a slice of Yellowstone, the nation’s first national park. Hundreds of years before President Ulysses S. Grant signed the Yellowstone National Park Protection Act into law, that plateau attracted humans with its bountiful game hunting and geothermal magic.
With gentle plains, dramatic glaciers, bucolic lakes and rivers, Montana is a wildly diverse place and it’s massive. It’s the biggest landlocked state within the US, fourth largest after California, Texas, and Alaska. That diverse topography is itself a think about the lawsuit. The state boasts a “unique and precious environment and natural resources, which the Youth Plaintiffs rely upon for his or her safety and survival” the criticism says. The lawsuit details how the ravages of climate change have already hit hard in Montana and dramatically threatened the lives of Montanans, from dangerously increasing temperatures to changing precipitation patterns and increasing glacial melt.
Climate change is on full display
Wildfires, flooding, drought, extreme heat, and hostile health impacts play heavily within the anecdotal stories of the plaintiffs, a lot of whom describe the threats to Montana’s homesteading culture of hunting and living off the land. Named plaintiff Rikki Held (and the just one who was 18 years old when the suit was filed) lives along with her family on a 7,000-acre ranch where they rely upon water rights to a river that has dried up and land that’s been scorched by wildfires. One other plaintiff, Sariel Sandoval, (age 17 on the time of filing), grew up on the Flathead Indian Reservation as a member of the Confederated Salish and Kootenai Tribes. She’s seen similar impacts from fire and drought, which hasn’t just threatened her family’s livelihood but has challenged her community’s ability to practice their cultural traditions and pass them down, threatening a profound emotional and psychological loss. (A throughline of all of the plaintiff’s stories is the emotional stress and strain of climate change.)
In truth, plaintiffs allege that Montana has warmed greater than many of the contiguous United States because northern latitudes heat more quickly. “Consequently of the common temperature increase, heat waves have gotten more common and snow is melting earlier within the spring season,” the criticism says. “In Helena, for instance, the variety of summer days above 90° F has increased by 20 days between 1970 and 2019.”
The primary time I spent a summer in Montana, the natural great thing about the place was on full display—so was its changing climate. June was unusually hot that 12 months, locals said, and the air was milky with smoke from wildfires. These fires were each local and distant, as wind blew smoke from Northern California and Canada wildfires into Montana’s borders. Visitors to Yellowstone that summer were warned of poor air quality, and the haze lent a creepy background to the pilgrimage tens of millions of individuals make every year to the nation’s first national park. The very next spring, visitors to Yellowstone were pushed out of the park resulting from a dangerous 500-year flood event. Montana has been through the ringer these days.
‘Probably the most robust of all of the state environmental rights provisions’
It’s easy to assume that these plaintiffs and their lawyers from a national organization can be dismissed by Montanans as coastal elites coming to remove their gas stoves and ban their pickup trucks. And that sentiment will definitely be present. But there’s a deep vein of independent, anti-corporate conservatism in Montana’s history that would lend itself to skepticism of presidency policies that put the interests of energy firms over people. That history is clear within the state structure itself.
Enacted in 1972, the state structure begins, “We the people of Montana grateful to God for the quiet great thing about our state, the grandeur of our mountains, the vastness of our rolling plains, and improve the standard of life, equality of opportunity and to secure the blessings of liberty for this and future generations do ordain and establish this structure.” It goes on to speak of restoring the environment for future generations. That’s not an abstract idea, but fairly a selected response to the degradation brought on by mining. Michelle Bryan, a law professor on the University of Montana says one strategy to view the 1972 Structure is as “Montana’s declaration of independence from corporate mining.” Many years of mining devastated Montana’s environment and people most responsible walked away, leaving state taxpayers with the bill to scrub up toxic pollution. Bryan says the framers of the 1972 structure sought to forestall such harms from repeating.
There’s case law in Montana that’s created a regular of “strict scrutiny” for presidency actions. In 1999, the Montana Supreme Court issued a call in a case called Montana Environmental Information Center v. Department of Environmental Quality (MEIC), “holding that Montana’s right to a clean and healthful environment is a fundamental right that requires the federal government to point out a compelling state interest before allowing environmental harm to occur,” as Bryan notes on this 2010 journal article. That landmark case stemmed from plaintiffs difficult a mining exploration license and related permits that allowed an organization to discharge arsenic into nearby rivers. Bryan goes on:
“The state agency granted the exploration license under a statutory exemption that allowed such discharges without nondegradation review. The supreme court applied strict scrutiny to the agency’s actions, concluding that there was no compelling reason to permit such an exemption. The ruling was also notable for its prospective view of environmental harm: the potential of environmental harm is sufficient to state a cognizable claim. In historic language, the court stated: ‘[W]e conclude that the delegates’ intention was to offer language and protections that are each anticipatory and preventative. The delegates didn’t intend to merely prohibit that degree of environmental degradation which will be conclusively linked to in poor health health or physical endangerment. Our structure doesn’t require that dead fish float on the surface of our state’s rivers and streams before its farsighted environmental protections will be invoked.’”
Based on that judicial affirmation of environmental rights and the state structure’s strong language, Bryan writes, “Montana’s environmental provisions are considered probably the most robust of all of the state environmental rights provisions.”
Saying the quiet part out loud
Montana is a fitting venue since the state’s actions are so blatant. Nobody would accuse the 2023 Montana Legislature of subtlety. (It’s gone hard right in more ways than one.)
The plaintiffs are difficult Montana’s State Energy Policy for promoting coal and expanding oil and gas exploration. They’re also difficult MEPA’s Climate Change Exception, which states that any environmental review “may not include actual or potential impacts which can be regional, national, or global in nature.” That has been interpreted, plaintiffs say, to mean that Montana agencies cannot consider the impacts of climate change of their environmental reviews despite the fact that Montana’s Office of Energy and Environmental Affairs has determined that “damage to the environment,” as utilized in MEPA, includes the emission of greenhouse gases brought on by projects subject to MEPA review.
On the eve of this landmark trial, Montana tried to undercut the case by passing laws that repeals the State Energy Policy at issue. If the states’ attorneys hoped the trial was rendered moot, it hasn’t worked. After they asked why they need to go to trial regarding “the enforcement of a statute that not exists,” Judge Seeley told them they need to arrange for the June 12 trial, saying “I don’t find this to be nearly as substantive to the problems raised on this case as you do. It’s the statute that they cited, it has been clarified, and it seems to me that preparations that you’ve gotten done would all be applicable to this statute as amended.”
To assist underline that Montana has not modified its policy of promoting fossil fuels, the governor also signed HB 971, a bill that explicitly bans state regulators from considering carbon emissions or the impact on climate change when approving a project. In other words, the state turned its abstract, de facto ban on considering climate change into an outright and explicit ban on considering climate change.
Relating to disregarding environmental protections, Montana lawmakers at the moment are saying the quiet part out loud.
When the 16 youth plaintiffs arrive at court, their lawyers could have the burden of showing how—and to what degree—it has harmed them and their families and future generations. No small thing. However the state’s lawyers could have to point out a compelling interest for Montana to disregard carbon emissions, climate science, and the harm brought on by the state’s energy policies. It should be fascinating to observe how the judge considers those competing interests; how she interprets the science; and whether the proceedings offer any clues for the way other courts (especially in states whose constitutions mention the appropriate to a healthy environment) will grapple with these cases.
And it ought to be easy to observe since the trial can be livestreamed. The court clerk says the District Court will provide a link per week before the June 12 start date.