Posted on 19 June 2023 by Guest Author

This is a re-post from Yale Climate Connections by Karin Kirk

When I got an assignment to cover the landmark youth climate lawsuit that went to trial in Montana this week, I thought I was going to be able to pop in, grab some salient quotes, and write up a story.

But the trial at a state district court in Helena has turned out to be unexpectedly wild. The testimony has been gripping. And the contrast between the polished lawyering of the plaintiffs’ side compared to the somewhat rough-and-tumble approach by lawyers for the state of Montana took me by surprise.

The case, Held v. Montana, pits a group of 16 young plaintiffs against the state of Montana. The youth argue that the state’s unabated pursuit of fossil fuel extraction is violating their constitutional rights to a clean and healthful environment.

Their argument draws on an unusual feature of Montana’s constitution. Written in 1972, it reads: “The state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations.”

In fact, the right to a clean and healthful environment is spelled out twice in the constitution, and it’s listed first among Montanans’ inalienable rights.

Montana’s constitution is part of why this is the first of several youth climate lawsuits to make it to trial in the U.S. Montana attempted several times to have the case dismissed.

The trial is being closely watched by climate advocates across the U.S. because it has the potential to establish a precedent that future cases could build upon. If Judge Kathy Seely finds that Montana’s fossil fuel activities violate the state constitution, then the state may have to reconsider its all-in approach toward fossil fuels — though it’s uncertain how that would play out.

Despite the high stakes, the lawyers representing Montana appeared to struggle with the topic of the case at times. During the proceedings on June 13, attorney Thane Johnson pressed climate scientists on the impracticality of electric tractors as he tried to make the point that it wasn’t realistic for the agricultural sector to reduce its emissions of climate-warming pollution. (Tractors are not a large source of such emissions in the state, nor are they in the agriculture sector as a whole.)

Johnson got hung up in attempts to pronounce acronyms such as “IPCC,” which refers to the Intergovernmental Panel on Climate Change, the Nobel Prize-winning group that produces scientific reports on the causes and consequences of climate change. After being corrected repeatedly by the scientist on the witness stand, Johnson said, “I’m going to write that down. There’s a lot of Cs and Ps involved in this.”

During the cross-examination of climate scientist Steven Running, a co-recipient of the Nobel Peace Prize for his work as an IPCC author, the state asked Judge Kathy Seeley to dismiss IPCC reports as “hearsay.” The request was denied.

‘It would mean so much for our futures’

By contrast, the young plaintiffs showed remarkable composure and poise.

Eva L., whose name is not included in court filings because she is a minor, settled into the witness stand on the first day of the trial wearing a black blazer and a somber expression.

Read: Checklist: How to take advantage of brand-new clean energy tax credits

In her testimony, she recalled the record-breaking flood on Yellowstone River in 2022. Spurred by a rain-on-snow event, a season’s worth of snowpack surged down river channels and spilled out over the landscape, pulling bridges, roadways, and houses along for the ride. Eva lives a few blocks from the iconic river and spent seven hours filling sandbags that day.

“It made me feel very, very scared,” she recalled.

Lead plaintiff Rikki Held spoke of the harm caused by wildfires during the summer of 2021.

“There was a lot of smoke most of the days in the summer,” she said from the witness stand.

That summer, she lived and worked on her family’s ranch in southeastern Montana. Her community endured relentless, searing heat and poor air quality for weeks as smoke began to feel like a permanent part of the landscape. Held wiped tears away as she recounted what it felt like to work outdoors in 110-degree heat and acrid smoke.

“You just have to keep working through it,” she said. “It needs to get done. That’s our livelihood and we can’t stop.”

She sat back in her chair, emotional, and took a breather from the lawyers’ questions.

“It’s just stressful,” she continued. “It impacts the well-being of myself, my family, my community, and people in this state.”

“I know that climate change is a global issue but Montana needs to take responsibility for our part in that. We can’t just blow it off and do nothing about it,” she said.

“Just one step in the right direction would be most important,” she said. “It would mean so much for our futures.”

‘The harms will get worse’

“Montana’s environment is neither clean nor healthful,” argued Roger Sullivan, attorney for the youth plaintiffs, in his opening statements. Climate change is taking a physical and emotional toll on the plaintiffs that worsens each year, Sullivan said.

Montana has warmed faster than the global average, heating up by 2.7 degrees Fahrenheit since 1950, leading to a cascade of environmental impacts. The state’s snowpack has declined, the loss of glaciers is accelerating, and wildfire season is now longer and more intense, pumping smoke into the air and putting young bodies at greater risk.

Montana’s children are already experiencing the effects of climate change, said climate scientist Cathy Whitlock in her testimony, and “the harms will get worse.”

From copper to coal

The trial is taking place against a backdrop of contradictions. Copper extracted from Butte propelled the original electrification of America in the late 1800s, and eastern Montana’s vast coal deposits have been a vital energy source for the Pacific Northwest and beyond.

Now Montana faces a new energy reality. West Coast states are firmly shutting the door on coal, beginning with Washington state’s plan to stop using coal by 2025. Montana’s coal production has decreased by 36% since 2008, and two of the four units in the state’s largest coal plant were shuttered in 2020.

In theory, the Treasure State could once again leverage its natural resources to become a leader in today’s energy markets. Montana is in the enviable position of having the seventh-best wind potential of any U.S. state, with access to large and eager markets for clean energy via existing, high-capacity transmission lines originally built to deliver coal-fired electric power to the West Coast. In 2016, Montana notched the first approved permit for a modern, wind-powered pumped hydro storage facility, offering flexible and clean energy storage.

But the pumped hydro project has yet to be built; it was snubbed by NorthWestern Energy, the state’s monopoly utility. Montana lags in renewable energy jobs and deployment, in contrast to neighbors like South Dakota. Instead, NorthWestern Energy is making repeated attempts to increase fossil fuels in its electricity mix, aided in part by a permissive state legislature and Public Service Commission. NorthWestern Energy CEO Brian Bird acknowledged in 2023: “I may be the only CEO in the utility industry adding coal to his portfolio.”

All-in on fossil fuels

Montana has never denied a fossil fuel permit, whether for extraction, transportation, or burning of fossil fuels. In a 2022 debate, then-candidate Ryan Zinke, now a Republican member of the U.S. House of Representatives, proudly said he wanted no part of the clean energy transition. Montana Sen. Steve Daines has received well over $1 million in campaign donations from the fossil fuel industry and routinely characterizes efforts to decarbonize energy as an “attack on American energy.” During this winter’s legislative session, state lawmakers tried to ban the teaching of scientific theories in K-12 education and passed new laws that block cities from making their own policies that would encourage non-fossil sources of energy.

But the legislature didn’t stop there. When construction of a fossil gas plant was halted by the courts over concerns about climate-warming greenhouse gas emissions, the state swiftly crafted a new law rendering the court’s opinion moot. State agencies are now prohibited from considering greenhouse gases in energy projects, a policy characterized as the nation’s most aggressive anti-climate law.

What’s one more oil refinery?

In the state’s opening statements, attorney Mark Stermitz was dismissive of the plaintiffs’ experiences, characterizing the trial as nothing more than “sweeping, dramatic assertions of the doom that awaits us all.” The primary defense from the state thus far is that its emissions are “too minuscule to make any difference.” Stermitz called Montana a spectator in the realm of global climate change, adding “there is absolutely nothing Montana does or could do” to reach the plaintiffs’ goal of reducing carbon pollution in the atmosphere to safe levels.

“Would an oil refinery upwind of Glacier National Park, by itself, affect the rate of glacier loss?” Stermitz asked in cross-examination of glacier researcher Dan Fagre.

Similar lines of questioning followed each expert testimony. What would be the impact of one state’s emissions on a problem of global proportions? If Montana stopped burning coal, could the effect be measured in snowpack, wildfire smoke, or drought? Can a specific state policy be directly linked to the harm of an individual child in the state? If there is no measurable, specific impact, then perhaps the state has no responsibility for the peril of its children.

Then again, the same argument could be made for any large-scale problem. If any single actor is insufficient to move the needle, then perhaps all actors are free from responsibility. It’s the very reasoning that has led the world into crisis in the first place.

‘This is just a small step’

Twenty-year-old Sariel Sandoval is a member of the Confederated Salish and Kootenai Tribe, and she grew up on Flathead Indian Reservation in northwestern Montana. Her Salish name is “Person Who Brings the Cedar.”

In her testimony, Sandoval described how climate change affects the web of plants, animals, and land around her. She observed, “It’s really scary seeing what you care for disappear right in front of your eyes.”

Sandoval carries out many traditional practices in her life, from picking huckleberries to digging up medicinal roots. “It’s our way of life. It’s the way we’ve survived for time immemorial,” she said. “We wouldn’t be here without the land. It feeds us, it shelters us. It takes great care of us, and we need to take great care of it, too.”

Sandoval testified that Native communities “have lived through genocide, assimilation, relocation, termination, and so many other traumas. We can definitely adapt and survive climate change, but that doesn’t make it right.”

Follow the trial

The trial is expected to continue until June 23. For daily updates, as well as the background of the case, see Montana’s Climate Change Lawsuit, a collaboration between the Flathead Beacon and Montana Free Press. Local journalists Micah Drew and Amanda Eggert are penning daily deep dives, with in-the-moment takes on their Twitter feeds.