CLIMATEWIRE | HELENA, Mont. — Sixteen young people who sued the state of Montana over its deference to the fossil fuel industry wrapped up the nation’s first youth-led climate trial earlier this week and now await a ruling.
Eleven of the young challengers took the stand in Held v. Montana, testifying about the effects of climate change on the Treasure State’s iconic glaciers and trout streams. A parade of experts offered evidence about the impact of burning fossil fuels.
Montana has called the trial a “publicity stunt,” and its lawyers have downplayed the state's contribution to climate change, saying the issue is a global one.
Our Children’s Trust, the Oregon-based law firm representing the youth, said it expects a ruling in the case to take weeks, if not months.
Here are five takeaways from the seven days of the first U.S. youth climate trial.
1. The outcome could mark a 'sea change'
Judge Kathy Seeley, who presided over the case, has already said she lacks authority to issue an injunctive ruling, such as an order requiring Montana to develop a plan to phase out fossil fuels.
But even a declaratory decision that says the government is violating the state Constitution’s right to a “clean and healthful environment” would be groundbreaking, legal observers say. Such a ruling could serve as precedent for other litigants looking to hold state governments and oil and gas companies accountable for contributing to climate change.
“It would be huge, a sea change,” said Michelle Uberuaga, an environmental attorney and the Montana state coordinator for the advocacy group Moms Clean Air Force.
At issue is whether Montana has violated the 1972 state Constitution by preventing agencies from considering the effects of climate change when evaluating projects, including coal mines.
“They're just putting their heads in the sand and pretending climate change doesn't exist,” Uberuaga said of the state. But a ruling that says otherwise, she added, “would make it really hard for them to ignore.”
Seeley could rule broadly, finding that the clean and healthful provision “includes a right to a stable environment,” said Pat Parenteau, professor emeritus at the Vermont Law and Graduate School.
But Parenteau said Seeley is more likely to favor a narrower ruling, such as finding that the state “can’t adopt a law that prohibits state agencies from considering the climate change effects of their decisions.”
He added: “I don’t think she’s going to strike the entire amorphous energy program of the state as unconstitutional.”
Declaratory judgments sound like a “hollow kind of remedy for an issue as pressing as the climate crisis,” said Randall Abate, assistant dean for environmental law studies at George Washington University Law School.
But, he added, “it’s a very important steppingstone given how difficult the climate litigation landscape has been for plaintiffs.”
Regardless of how Seeley rules, the case will likely land before Montana’s Supreme Court.
“The state isn’t going to live with a negative decision, and neither are the plaintiffs,” Parenteau said.
Seeley could also rule in favor of the state, but Parenteau noted that she’s already had multiple opportunities to do so.
Judges in other places, including Virginia and Alaska, have dismissed similar youth-led cases brought by Our Children’s Trust, finding that the lawsuits raise questions best answered by state Legislatures. But Montana is one of just a handful of states with robust constitutional provisions that include the right to a clean environment.
During the trial, Montana Assistant Attorney General Michael Russell invoked a loss for Our Children’s Trust in its best-known case, Juliana v. United States, which relies on the U.S. Constitution and stumbled after a federal appeals court said the challenge raised issues that "are the province of the political branches.”
2. The kids are not alright
The 11 young people who testified about melting glaciers and wildfire smoke are part of a generation that is increasingly feeling the mental and physical toll of climate change, medical practitioners told the court.
Young people’s bodies and brains are still developing, making them more susceptible than adults to the effects of elevated temperatures and polluted air, said Lori Byron, a Montana pediatrician.
Children tend to breathe faster than adults, taking in more air — and potentially more pollutants, she said. It’s also more difficult for them to cool down in extreme heat, and they have more permeable skin, making them more vulnerable to various toxins. Younger people — particularly those who compete in athletics — also spend more time outside and may not recognize warning signs until they get sick, she said.
Byron warned that studies are finding that climate change could be considered an “adverse childhood experience” — a traumatic event that can affect a person as an adult. Research has shown that the more trauma a child experiences, the more likely they are to suffer from conditions such as heart disease or diabetes as an adult, Byron said.
“The same with significant stress from adverse weather events,” she said. “It can set off this same cascade.”
And Lise Van Susteren, a Washington psychiatrist who co-founded the Climate Psychiatry Alliance, said the young people’s testimony mirrors the scientific literature that is finding increasing numbers of children experiencing climate angst.
Van Susteren pointed to a 2021 report she co-authored in the medical journal The Lancet that looked at 10,000 people between the ages of 16 and 25. More than half believed climate change was affecting their daily lives, and two-thirds believed the government’s lack of action was to blame.
“The kids have told you this week very compellingly how their world is different,” Van Susteren said. “And they have told us how this is worrisome. Their world is spinning out of their control, and they have first-hand experience.”
The state elected not to call its mental health expert, Debra Sheppard, to testify. During her deposition, the Montana neuropsychologist said she did not have expertise in how climate change affects children’s mental health, according to the Flathead Beacon.
3. Youth galvanized enviros
An array of groups turned out in support of the young climate challengers.
In Helena, the young activists were greeted daily by supporters, including some who watched a livestream of the trial from the Myrna Loy, a theater across the street from the courthouse that once housed the Lewis and Clark County jail.
Molly Harrington, 60, and Karen Stears, 61, made the four-hour trek from their homes in Billings to lend support.
“This is a landmark moment, and I wanted to be here to support the youth,” Stears said. “They’re stepping up for the battle of our lives. I couldn’t be anywhere else this week.”
Environmental groups from across the state attended as well. Uberuaga, the state coordinator for Moms Clean Air Force, rallied with high school students from Livingston, who have started an initiative to promote sustainability at their school.
“We wanted to let the young Montanans know that we are committed to doing our part when they’re doing theirs,” she said.
The youth-led climate group Sunrise Movement tweeted support for the 16 young activists behind the climate case, writing that “our generation is ready to do whatever it takes to end the destructive grip of the fossil fuel industry.”
State Rep. Zooey Zephyr — a Democrat who drew national headlines in April when the Montana House speaker barred her from speaking on the chamber floor — posted a video of herself Thursday in Glacier National Park, thanking the young activists. She noted the park opened earlier this year than it has in 18 years, due to a decreased snowpack this winter.
“So we spent a lot of time talking about climate change & why court cases like Held v. Montana are so important,” she wrote.
The trial also put a spotlight on environmental constitutional protections like Montana’s, said Maya van Rossum, an attorney who leads the Delaware Riverkeeper Network and works to enact similar provisions in other states. Montana and two other states — Pennsylvania and New York — elevate the right to a clean environment in their constitutions.
“Not just any language in the constitution will do,” said van Rossum, who attended the trial. “The placement and words chosen are essential for success.”
4. Climate science went on trial
Climate scientists and other experts painted a dire portrait of climate calamities on behalf of the 16 young challengers, warning that increased carbon dioxide emissions are altering Montana's iconic glaciers and rivers.
Montana's top witnesses — state employees who are responsible for permitting fossil fuel projects — however, acknowledged they are not well-versed in climate science and at times struggled with the many acronyms used in the case.
Chris Dorrington, director of the Montana Department of Environmental Quality, told an attorney for the youth that he had been unaware of the U.N. Intergovernmental Panel on Climate Change (IPCC) — which has issued increasingly dire assessments since it was established more than 30 years ago to synthesize global climate data.
"I attended this trial last week, when there was testimony relevant to IPCC," Dorrington said. "Prior to that, I wasn't familiar, and certainly not deeply familiar with its role or its work."
By the end of the century, the state could be looking at several months with days over 90 degrees Fahrenheit, said Cathy Whitlock, a retired paleoclimate scientist at Montana State University and a witness for the youth.
As Thane Johnson, an attorney for Montana, questioned Whitlock about “RPCs,” she noted it was actually “RCPs” — representative concentration pathways — a term the scientific community uses to describe potential scenarios of what future warming might look like.
“Is that used by the ICP?” Johnson asked, referring to the IPCC.
Then they discussed SSPs, or shared socioeconomic pathways, a new set of scenarios that contain more detailed assumptions about global conditions than the RCPs, including future population growth.
“I’m going to write that down,” Johnson said at one point. “There’s a lot of C’s and P’s involved in this.”
The back-and-forth came as Johnson tried to pin part of the blame for Montana’s carbon dioxide emissions on the agricultural industry, arguing that little could be done because farmers can’t purchase electric tractors. (Though there are electric tractors on the market.)
“I've got to tell you, I love me some ag,” Johnson said at one point, asking Whitlock whether the agricultural industry is the second-biggest contributor to greenhouse gas emissions in the state.
Whitlock, however, noted that transportation emissions topped those from agriculture. Still, Johnson later pressed her on whether if Montana stopped its greenhouse emissions immediately, it would have any effect on global warming.
“Every farmer threw in their keys to their tractors, I hand you my keys and we stopped,” he said, describing the hypothetical. “We’ve turned in our keys, we’ve turned in our tractors.”
Whitlock countered that the move would help “ameliorate climate change.”
Montana elected not to call its most high-profile witness, Judith Curry, whose work has been championed by skeptics of anthropogenic climate change.
The young challengers’ witnesses, though, argued that the state is already feeling the effects of climate change — and that it's about to get worse.
Steve Running, part of a 2007 Nobel Peace Prize-winning climate science research team, told the court that there was “no doubt” climate change is altering Montana by increasing wildfires and reducing snowfall.
And retired U.S. Geological Survey scientist Dan Fagre warned that Glacier National Park’s signature ice masses are retreating and could be gone within a human lifetime — “including that of the plaintiffs'."
5. More lawsuits could follow
A ruling that Montana has violated its Constitution by ignoring climate impacts could “help build momentum” behind similar youth-led legal actions, said Abate of George Washington University.
It could also provide “extra wind at the back” for the existing array of lawsuits that local governments from Rhode Island to Hawaii have filed seeking compensation from the oil and gas industry for playing a role in climate change, he said.
“Bit by bit," Abate said, "there’s going to be these pathways for accountability for the continued use of fossil fuels.”
The seven-day trial, however, showed how arduous litigation can be, he said.
“You realize the amount of time and energy and money that goes into these efforts,” he said. “And to just have a declaration to show for it, I’m not sure that’s something people want to replicate.”
Even if Seeley rules for Montana, Abate said the evidence that emerged in the trial — along with the publicity it attracted — is still powerful.
“It’s huge for advancing the cause,” he said. “It’s laying the foundation and building that understanding.”
Sunrise Movement Executive Director Varshini Prakash echoed the sentiment.
“The fossil fuel industry should be terrified because fights like this are going to pop up across the country as Gen Z and a growing Gen Alpha fight to protect their futures from climate disaster," Prakash said.
Youth climate activists have lost other lawsuits but have persevered, Vermont Law's Parenteau said. He said he believes similar lawsuits will proliferate until governments take more action to curb greenhouse gas emissions.
“Others will be inspired, regardless,” Parenteau said. “This is never going to end.”
Reprinted from E&E News with permission from POLITICO, LLC. Copyright 2023. E&E News provides essential news for energy and environment professionals.