by Kevin Killough
The Montana Supreme Court heard oral arguments this week in the state’s appeal of a case that is so far one of the only successful climate cases of dozens that activists, states, and local governments have filed against government agencies and oil companies.
The case, Held v. Montana, involves 16 young plaintiffs who were organized by the anti-fossil fuel nonprofit Our Children’s Trust to sue the state of Montana for allegedly violating the kids’ constitutional rights to a clean and healthy environment by permitting oil, gas and coal projects in the state without regard to their impacts on global warming.
Original complaint
Montana’s constitution guarantees its residents the right to a clean and healthful environment, but state law prohibits state agencies from factoring in the impact of greenhouse gasses when permitting energy projects.
In August 2023, Lewis and Clark County District Court Judge Kathy Seeley ruled that Montana had the power to prevent the suffering the plaintiff’s claim to experience as a result of the state permitting fossil fuel projects, and so state law was violating the kids’ constitutional rights.
According to the plaintiffs’ original complaint, the threats posed by fossil fuels and the “climate crisis” are “existential.”
The plantiffs point to various instances of bad weather, which they blame on carbon-dioxide emissions. Lead plaintiff Rikki Held, a 18-year-old, claimed that periods of low- and high-water levels in the Powder River that runs through the family ranch are caused by “climate disruption” that is “already threatening Rikki’s home, family, community and way of life.”
Two other plaintiffs – who are identified in the complaint only as Lander B. and Badge B. – claim that variable water levels where they fish are caused by “climate disruption.”
Other plaintiffs claim it’s too hot to play sports or go hiking, that the “climate crisis” is causing feelings of “despair and hopelessness,” and that early snowmelt is making it hard to ski. Another plaintiff claims a flood that damaged her home is the result of climate change.
As the case was set to go to trial in the summer 2023, the plaintiffs received fawning press, and most reporters covering the case didn’t scrutinize the plaintiff’s claims.
However, the claims that fossil fuels are causing floods and droughts is far from certain.
Dr. Roger Pielke Jr., retired professor of environmental studies at the University of Colorado at Boulder, testified in May at a Senate Budget Committee hearing on drought in the U.S.
He said that the Intergovernmental Panel on Climate Change, a United Nations consortium of the world’s leading climate scientists, does not “express high confidence in the detection or attribution of trends in drought to human influences in any region of the world, including the United States, and does not expect to observe with high confidence for many decades the signal of human-caused climate change in drought metrics.”
As Pielke explained on his “The Honest Broker” Substack, the IPCC also expresses a lot of uncertainty about the impacts of global climate change on floods. Pielke doesn’t dispute that global warming is happening, and he acknowledges it’s a problem that needs to be addressed. But many of the climate events the youths claim are caused by climate change aren’t supported by all of the leading research on climate.
At least some of those arguments were not brought up in the July 2023 trial.
Climate scientist Dr. Judith Curry, president and co-owner of Climate Forecast Applications Network, was hired as an expert witness in the trial. Her testimony would have scrutinized the plaintiff’s claims, but she was never called to take the stand.
Montana’s appeal
In her ruling siding with the plaintiffs, Seely struck down the limitation in Montana law that prohibits state agencies from considering the impacts of greenhouse gas emissions in permitting energy and mining projects.
During oral arguments before the Montana Supreme Court on Tuesday in the state’s appeal of Seely’s ruling, Dale Schowengerdt, attorney for GOP Gov. Greg Gianorte and state agencies, argued that there’s no evidence that striking the prohibition on considering greenhouse gasses from Montana law would have resulted in any permit denials.
He also argued that the plaintiffs failed to show that the injuries they claim to suffer from the law could be redressed by striking it. Lastly, he argued that the issue of climate change cannot be resolved by judicial decisions.
“So you’re saying they would never have standing, because if they did challenge a permit, they couldn’t show that that permit alone could impact global climate change?” Justice Beth Baker asked.
Schowengerdt replied: “I don’t think they could challenge it based on global climate change. And that’s where all these courts land – that that issue is a complex global issue that can’t be affected by one state’s emissions.”
In further illustrating this point, state attorney Mark Stermitz said the state doesn’t dispute that climate change is happening.
But he pointed to testimony from the plaintiffs at the original trial that the world is emitting about 40 billion tons of carbon dioxide into the atmosphere. Montana’s contribution to that, he said, is 166 million tons. Half of that is transportation and not fossil fuels extracted in the state. So, removing that portion, Montana’s contribution to global emissions from fossil fuel extraction is just 0.0019%.
“The rhetoric that is conveyed as if Montana is the sole source of this problem that everyone recognizes as exists, it has to be reviewed in the context of those absolute scientific facts that came from plaintiffs’ witnesses,” Stermitz said.
Attorney Roger Sullivan, who argued for the young activists organized by Our Children’s Trust, said that because the Montana legislature had prohibited considering greenhouse gas emissions in permitting projects, a “constitutional injury” resulted and the state’s records show no agency had denied a fossil fuel permit.
“This record also shows we are in a climate emergency and additional greenhouse gas emissions will cause additional heating and additional injuries to plaintiffs,” Sullivan said.
Sullivan said that state law “closes the eyes of Montana’s environmental agencies to the most serious environmental crisis Montana has ever experienced – the climate crisis.”
The state’s attorneys had pointed out that the youth’s case wasn’t challenging any specific permit, and Justice Jim Shea questioned if the case was “ripe” for the court.
“Isn’t this essentially asking for an advisory opinion as to whether or not this statute is constitutional, if and when a permit is being sought?” Shae asked.
Sullivan said that it was proven during the trial that “Montana is in the midst of a climate crisis right now.”
“If nothing is done, it will be much hotter. Fifty years from now, when those young plaintiffs are my age, because of this climate emergency to which the state of Montana is a substantial contributing factor, yes, this this issue of the constitutionality of the state of Montana, with those prohibitions in terms of agency review of greenhouse gasses, they can’t even consider it, nor can they come before this court seeking redress,” Sullivan argued.
The justices concluded the hearing saying that they would take the matter under advisement. They did not give any indication when a ruling would be issued.
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Kevin Killough is a reporter for Just the News.
