What Happened Through the Montana Youth Climate Trial
The state argued that Held v. Montana is a boring case about procedure. The children made a compelling case that climate motion is an element of Montana’s constitutional obligation to take care of a healthy environment.
The very first American trial of a youth climate lawsuit was hardly blockbuster Court TV, but we learned quite a bit from the proceedings. The bench trial took place last month within the state capitol, Helena, where 16 youth plaintiffs ages 5 to 22 made the case that Montana’s unwavering promotion of fossil fuels violates the state structure’s guarantee to a “clean and healthful environment.”
As I outlined here, Montana state law prohibits the consideration of greenhouse gas emissions or climate impacts––inside and outside the state’s borders––when reviewing projects and approving permits. This now-infamous climate prohibition has been called a “limitation” on the Montana Environmental Policy Act, or MEPA. That limitation is what the youth plaintiffs are asking Judge Kathy Seeley to declare unconstitutional.
At its most simple, this trial asked, “Can the state each guarantee a clean and healthful environment and ignore climate aspects that contribute to a clean and healthy environment?” TL;DR I feel they made a compelling case that it cannot. But as we wait for the judge to issue a ruling later this summer, here’s what the trial proceedings have already made clear.
The court is prone to issue a narrow ruling
We all know that the judge is prone to go small, not big. We all know that because plaintiffs sought to challenge the whole lot of Montana’s state energy system––its de facto energy policy––even after the Legislature repealed its de jure energy policy ahead of the trial. The court dismissed that claim. In a May 23 pre-trial ruling, the judge found that “Plaintiffs’ contention that a ruling from this Court on the constitutionality of the State’s ‘longstanding and ongoing course of conduct . . . would change the legal status of such conduct and would steer Defendants’ future conduct into constitutional compliance’ shouldn’t be persuasive.”
But we also know that the court had opportunities to dismiss the plaintiffs’ case altogether before heading to trial. As an alternative, the judge rejected the state’s request for summary judgment and laid out “five material facts that remained in dispute.” These five questions are a prism through which we are able to view the now-concluded trial from the eyes of the court. They’re:
- Whether Plaintiffs’ injuries are mischaracterized or inaccurate.
- Whether Montana’s GHG emissions could be measured incrementally.
- Whether climate change impacts to Montana’s environment could be measured incrementally.
- Whether climate impacts and effects in Montana could be attributed to Montana’s fossil fuel activities.
- Whether a good judgment will influence the State’s conduct and alleviate Plaintiffs’ injuries or prevent further injury.
By my judgment, the trial made clear that the plaintiffs had the facts on their side in Questions 1-4. Query 5 is the stickiest.
The state didn’t put up a serious defense
In case you blinked, you possibly can have missed the defense’s case. The state’s legal team called just three witnesses over the course of in the future. That seemed designed to underscore the state’s “Nothing-to-see-here-folks” argument that the case was a boring procedural matter, unworthy of a lot attention. That attitude pervaded the trial but was perhaps captured best by Assistant Attorney General Thane Johnson’s repeated jumbling of acronyms, like RCP (representative concentration pathways) and IPCC (the Intergovernmental Panel on Climate Change) amongst others. Once after being corrected, he said, “I’m going to jot down that down… There’s plenty of C’s and P’s involved on this.”
Earlier within the trial, Johnson put it this fashion: “If Montana just stopped emitting CO2 today, if every farmer threw within the keys to their tractors, if I even handed you my keys, would you agree that may not have an effect on local GHC, I mean GHG?” I don’t know the way this approach resonated with the judge, but to me it felt like a nihilistic argument akin to saying: “Nothing we do matters.” Nevertheless it’s a key query, as I’ll discuss later.
As for witnesses, they called two high-level state employees charged with permitting fossil fuel projects, in addition to one expert witness economist who read off some (problematic) data on greenhouse gas emissions. That economist, who calls himself the founding father of “free-market environmentalism,” was there to reduce the relevance of Montana’s GHG emissions as a driver of climate change. His testimony went to one in every of the state’s predominant arguments: that Montana’s actions don’t matter since it’s a drop within the bucket of worldwide emissions. His testimony bumped into problems when the plaintiffs’ attorney identified that the info he attributed to the U.S. Energy Information Administration (EIA) was actually not from the EIA’s website and that the witness had needed to correct his own calculations.
During closing arguments, the state’s lawyers had this answer to plaintiffs: take your concerns to the statehouse. “What we heard in plaintiffs’ case was not justiciable controversy, but slightly a weeklong hearing of political grievances that properly belongs to the legislature, not a court of law,” said Assistant Attorney General Michael Russell. “This shouldn’t be alleged to be a town hall or a popularity contest,” he said.
Montana has a rubber-stamp regulatory climate
The opposite prong of the defense’s argument is that: (1) the state’s predominant environmental regulator, the Department of Environmental Quality, doesn’t actually hold authority to disclaim fossil fuel projects; and (2) underlying statutes just like the Clean Air Act of Montana and the Strip and Underground Mine Siting Act are what speak to the constitutional provision of a healthy environment, not MEPA.
In attempting to make that case, the state officials chargeable for permitting energy projects in Montana appeared lower than competent at their slightly necessary jobs. These witnesses were Department of Environmental Quality (DEQ) Director Chris Dorrington and Sonja Nowakowski, the director of the Air, Energy and Mining Division at DEQ.
Dorrington told the court that his department mainly has no alternative but to comply with Montana’s prohibition against considering climate impacts due to expanded MEPA limitation passed and signed by Gov. Greg Gianforte. He cited a statute that claims agencies “may not withhold, deny, or impose conditions on any permit” and one other that claims the statute only provides DEQ with authority as stated in existing statute. Nowakowski made the identical claims on the stand, saying that the department’s hands are tied on the subject of approving permits without considering the climate impacts. Except on this case, it appears she helped tie the department’s hands: Based on the Each day Montanan, Nowakowski herself drafted the unique 2011 MEPA limitation for a state senator.
Which begs the query: what do civil servants on the Department of Environmental Quality do exactly in the event that they consider they need to approve any energy project that comes across their desk? The tone of the DEQ website reads like a customer support branch for energy corporations, referring to the permitting division’s site as “a one-stop-shop listing the entire regulatory products administered by DEQ.”
Dorrington made one other startling acknowledgement. He told the plaintiffs’ lawyer that until the trial he had been unaware of the U.N. Intergovernmental Panel on Climate Change. That the state official who oversees the permitting and regulation of all major energy projects in Montana may very well be blind to the UN body that has been issuing increasingly urgent assessments about global warming and climate data for 30 years is unbelievable and distressing. The admission says quite a bit about political will. (Perhaps the plaintiffs should ask the Court to mandate basic climate change education to state officials. I’m kidding, but only barely.)
Climate change can translate to the courtroom
Enter the youth plaintiffs. Eleven of them testified in regards to the specific impacts that climate change has had on their family, their community, their day by day life, their physical and mental health. It was powerful in aggregate though individual lines of questioning felt almost mundane.
Just like the testimony of Georgianna Fischer, a competitive cross country skier and environmental science college major. She talked about her family history and about growing up in Montana before turning to the plight of snow sports. “My sport may not exist in the long run,” she said. “I depend on my sport for my health and happiness.” She said that seeing natural places in Montana impacted by climate change has been stressful and scary leading her to hunt skilled counseling. Like other youth plaintiffs, her testimony ended with a matter about how she would feel in the event that they won their lawsuit. “Hopeful,” she said.
Not one of the youth plaintiff testimony offered much courtroom drama, but it surely didn’t have to. It told the small stories of a world crisis. And more importantly, it answered the primary of the Court’s five questions: Plaintiffs’ injuries haven’t been mischaracterized or inaccurate.
The plaintiffs’ lawyers also called eight expert witnesses who spoke in regards to the framing of the 1972 state structure; how enforcement of environmental regulations have modified within the last 20 years with the expanding limitations on MEPA; and the way climate change is impacting ecosystems and human activity within the Treasure State. By the tip of the century, Montana could see several months a 12 months with temperatures staying above 90 degrees, said Cathy Whitlock, a retired paleoclimate scientist at Montana State University who was the lead writer of the 2017 Montana Climate Assessment. One other scientist who focuses on greenhouse gas emissions accounting told the court Montana is chargeable for tens of thousands and thousands of tons of carbon dioxide emissions annually – the sixth-most within the U.S. Plaintiffs presented testimony that in 2019 alone Montana was chargeable for 166 million tons of CO2 (that’s total emissions while you mix what the state extracts, transports, processes and consumes) on par with Pakistan. The refrain from these expert witnesses was “every ton matters,” referring to an IPCC quote that “every ton of CO2 matters.” To my mind, this testimony addressed the Court’s questions 2-4 way more persuasively than the defense.
During closing arguments, the plaintiffs’ lead attorney Nate Bellinger asked for judicial intervention to clarify that the best to a clean and healthful environment is as essential as other basic human rights. Plaintiffs asked Judge Seeley to declare that “a stable climate system is prime” to that protection and to declare unconstitutional the limitation on MEPA. I could see even a narrow ruling finding in favor of the youth plaintiffs on those issues. Not stopping there, Bellinger also asked Seeley to determine a constitutional standard that 350 parts per million of atmospheric CO2 is a goal to guide state energy permitting.
How the judge rules on this landmark trial may come right down to the court’s final interpretation of that fifth and final query: “Whether a good judgment will influence the State’s conduct and alleviate Plaintiffs’ injuries or prevent further injury.” It is a tough one. Would officials with the relevant state agencies really start denying some fossil-fuel projects following a declaratory relief in favor of the youth plaintiffs? Doubtful, listening to the defense witnesses. However the carbon footprint and climate impact of individual energy projects will surely be way more transparent to most of the people if the MEPA limitation was declared unconstitutional.
Redressability is where the problem of “hope” on the a part of the youth plaintiffs is available in to play. Over and once again, they said on the stand that a good verdict would give them hope. It wasn’t only a rhetorical flourish. Their attorneys argue that the court could bring “immediate redress” for his or her psychological injuries. “Declaratory relief will help restore Plaintiffs’ confidence within the functioning of their democracy and display to them that there may be recourse for presidency conduct that violates their constitutional rights while making clear Defendants usually are not above the law,” they write of their proposed finding of facts and conclusions of law.
Less squishy is the query of whether a good verdict would actually decrease emissions. That query was put to a Missoula-based climate scientist named Steven Running who worked on the 2007 IPCC report as a part of the team that won a Nobel Peace Prize. If Montana stopped emitting greenhouse gases, would that prevent the injury to plaintiffs from climate change? “We are able to’t tell,” Running reportedly answered. “What’s been shown in history time and again is that when a major social movement is required, it’s often began by one or two people.”
Or sixteen young people.
