Climate on trial: Montana youth take on state energy policy

Source: By Lesley Clark, E&E News • Posted: Thursday, December 1, 2022

The 1st Judicial District Court in Helena, Mont.

The 1st Judicial District Court in Helena, Mont., where a potentially landmark kids’ climate case against the state is scheduled to be heard for two weeks in June 2023. Lesley Clark/E&E News

MISSOULA, Mont. — Mica Kantor was just 4 years old when he began to worry about the future of the world’s glaciers. A documentary had him tearing up at the climate-change-fueled retreat of the icy masses.

Growing up in the state that’s home to Glacier National Park, Mica participated in climate strikes at his school. He said he mailed letters to elected officials in Montana, “telling them how much climate change meant to me and hoping they would reevaluate their positions.”

He got a few replies — each automated: “Thanks for your concern, we appreciate your feedback.”

So when his mother told him and his sister in 2020 that Our Children’s Trust, an Oregon-based law firm, was planning to sue Montana’s government for failing to protect the environment for kids like him, he was all in.

“It felt empowering,” Mica, now 14, said on a recent hike in the Pattee Canyon Recreation Area he frequents near his home. “A lot of people have it worse, but this is our home, and Montana isn’t doing enough to prevent it.”

He added: “They’re even going in the wrong direction.”

His destination on the hike: a towering ponderosa pine, Montana’s state tree. Mica buried his nose in the bark, which is known to give off the scent of vanilla or butterscotch.

Unlike other native species threatened by changing climate conditions, the ponderosa is built to withstand threats: Its thick bark makes it resistant to fire, and its deep roots help it survive drought.

Mica, who was born in Billings, said he can only hope kids in the state are as resilient.

Wildfires and smoke in 2017 left him housebound for more than a month. Increasingly hot summers — “90 degrees for weeks on end,” he said — mean he and his dad can’t fish Montana’s rivers when the water hits above a certain temperature.

“Nature is a big part of my life,” he said, “and I wanted to do something.”

His course of action was to join a lawsuit that is poised to be the first youth climate challenge to go to trial before a judge in the United States. Held v. Montana, the 2020 lawsuit filed on behalf of 16 young Montanans, is scheduled to be heard at the 1st Judicial District Court in Helena for two weeks in June 2023.

“This is a chance to put all of the climate change evidence on the record,” said Pat Parenteau, an emeritus professor at Vermont Law and Graduate School who tracks climate litigation. “It’s an opportunity to build a really strong case for why Montana — and really the whole world — is facing imminent and irreversible effects of climate change.”

Right to a ‘clean environment’

Mica Kantor, 14, stands in front of a ponderosa pine during a recent hike in Pattee Canyon Recreation Area in Missoula, Mont. Kantor is one of 16 young people suing the state over climate change.
Mica Kantor, 14, stands in front of a ponderosa pine during a recent hike in Pattee Canyon Recreation Area in Missoula, Mont. Kantor is one of 16 young people suing the state over climate change. | Lesley Clark/E&E News

Our Children’s Trust is pursuing several lawsuits on behalf of children and teens across the country who accuse governments of contributing to climate change.

But the law shop may have one of its best shots at success in Montana because it is one of only six states that explicitly recognizes a right to a clean environment.

Courts in other states and at the federal level have been skeptical of the lawsuits, including the firm’s most high-profile case, Juliana v. United States, which was filed in 2015 during the Obama administration. Both Republican and Democratic administrations have opposed the Juliana lawsuit, which calls on federal officials to phase out fossil fuels, and the 9th U.S. Circuit Court of Appeals in 2020 dismissed the young challengers’ claims — finding that the case raised questions for the “political branches” of government, rather than the courts.

Young climate challengers have had more success abroad. In the latest international climate battle, Swedish activist Greta Thunberg, who led school strikes at the age of 15, was among 600 young people who last week filed a lawsuit against the Swedish state, alleging inaction on greenhouse gas emissions (Climatewire, Nov. 28).

The Montana lawsuit, however, has an unusual hook for a U.S. challenge: The state constitution, which turned 50 this year, lists the right to a “clean and healthful environment” as the first of one of a half-dozen inalienable rights. Mica and other young challengers argue that Montana lawmakers have failed to fulfill that promise — and have in fact passed legislation that degrades the environment.

The young people are challenging parts of Montana’s State Energy Policy and what they say is a provision that bars state agencies from considering climate change under the Montana Environmental Policy Act. They note lawmakers revised the state’s energy plan in 2011 to “explicitly promote fossil fuels.” The plan states plainly that state policy encourages coal development, oil and gas exploration and petroleum refining expansions. It also gives a nod to “new and innovative technologies,” including renewable energy.

Montana is currently led by a Republican — Gov. Greg Gianforte — who withdrew the state from the U.S. Climate Alliance, a group of states dedicated to fighting climate change, soon after taking office in 2021. A spokesperson for his office told Montana Public Radio at the time that Gianforte believed “the solution to climate change is unleashing American innovation, not overbearing government mandates.”

Democrats haven’t escaped the young climate activists’ scrutiny. The Montana lawsuit was first filed while Democrat Steve Bullock was in the governor’s mansion. Though Bullock and his Democratic predecessor, Brian Schweitzer, acknowledged climate change, tackling it was not a priority, said Anne Hedges, policy and legislative affairs director at the Montana Environmental Information Center.

Bullock, who declined to comment for this story, had joined the U.S. Climate Alliance in 2019 and convened a council that same year to set statewide goals for reducing greenhouse gas emissions. Hedges said both moves came late in Bullock’s second term, as he eyed a 2020 run for the presidency.

“It’s tricky in a red state with a lot of coal, oil and gas,” said Hedges, who may testify as a witness for the youth in the Montana case.

The state has rejected the charges. Montana Attorney General Austin Knudsen (R) has dismissed the lawsuit as an effort by “out-of-state climate activists” to shut down “responsible energy development.” In court documents, the state argues that the young challengers are asking the court to “appoint itself the de facto ‘climate czar.’” And the state contends that the court lacks authority to decide “controversies which revolve around policy choices.”

Those choices were made by a Legislature that, like much of the state, remains tethered to the mining and fossil fuel industry. It’s a connection that goes well beyond campaign contributions to lawmakers. In Montana’s rural areas, some of the best-paying jobs are still in mining and oil.

“The third rail in Montana politics has always been resource extraction industries,” said Kal Munis, an assistant political science professor at Utah Valley University who tracks Montana politics. “These industries still have an extremely potent symbolic power, even as the share of Montanans that actually work in those industries or who even know people who work in those industries has continued to dwindle.”

The legacy endures across Montana: its motto, “Oro y Plata” — Spanish for “gold and silver” — is a nod to the state’s mining fortunes. In Libby, where Munis’ mother grew up, the school mascot is the Loggers. In Munis’ hometown of Philipsburg, a 19th century mining town, the high school sports teams play as the Prospectors.

Many Treasure State residents identify with the extractive industries because someone in their family, generations ago, “moved out West to work in the mines, the timber mills or to ranch,” said Munis.

“It’s almost personal to folks,” Munis said, “even if they’ve never worked in those industries or can’t point to anyone in their social networks who does.”

Shaking off the Copper Kings

Montana voters did consider the environment when they narrowly ratified a new state constitution in 1972. The nod came amid a national clamor for greater environmental safeguards: The first Earth Day had been held two years earlier, and the federal Environmental Protection Agency was getting off the ground.

In Montana, delegates to the state’s constitutional convention were looking to shake off the last vestiges of the Copper Kings, the mining barons who helped write the state constitution in 1889. The trio of wealthy industrialists, who controlled much of the state’s mining industry and its politics at the time, made certain the document — a requirement for Montana to achieve statehood — prioritized economic development over environmental concerns.

Copper magnate William Clark, who was a delegate at the 1889 convention, reportedly defended the air pollution created by copper smelting in Butte, telling fellow delegates that the “ladies are very fond of this smoky city” because there was “just enough arsenic there to give them a beautiful complexion.”

Delegates to the 1972 convention took a different tack. Famed aviator Charles Lindbergh, whose son lived in Montana, urged the delegates to provide strong environmental protections, Chuck Johnson, a retired Associated Press reporter who covered the convention, wrote in a March story for the Montana Free Press observing the 50th anniversary of the convention.

In an interview with E&E News, retired Montana Supreme Court Justice James Nelson noted the delegates proclaimed their interest in environmental preservation in the document’s preamble, extolling the “quiet beauty of our state, the grandeur of our mountains, the vastness of our rolling plains.”

Nelson said he believes the challengers in the Montana kids’ climate case “can legitimately argue that the Legislature has not met its mandatory duties to maintain and improve the environment.”

“They’ve never met it,” Nelson said.

Yet Nelson and Parenteau of Vermont Law and Graduate School said it’s an open question as to what the lawsuit can actually accomplish: 1st District Court Judge Kathy Seeley, who will preside over the June trial, said in August that she lacks authority to grant the young challengers injunctive relief — or an order for the government to develop a plan to phase out fossil fuels.

Instead, any finding would be limited to declaratory relief — or a ruling that says the government violated the kids’ constitutional rights but stops short of ordering officials to act.

Still, a declaratory ruling would be groundbreaking and could help nudge the state to shrink its carbon footprint, said Nate Bellinger, senior staff attorney at Our Children’s Trust and co-counsel for the young climate activists.

“It’s important that our courts are willing to stand up to the political branches when they’re acting in an unconstitutional manner and be willing to declare laws and conduct unconstitutional,” Bellinger said.

Judges to date have been reluctant to rebuke lawmakers. A Virginia judge dismissed a similar youth climate lawsuit in September, finding that under the doctrine of sovereign immunity, the Virginia Legislature cannot be sued for violating citizens’ rights (Climatewire, Oct. 28). The Alaska Supreme Court in January rejected a lawsuit by 16 young residents of the state, saying that although the case raised “compelling concerns about climate change,” a lower court got it right when it found that the case raised “political questions” that were better left to the executive branch and state Legislature (Climatewire, Jan. 31).

In the federal Juliana case, which is now the subject of a Netflix documentary, challengers are awaiting a ruling from the U.S. District Court for the District of Oregon on whether their revised lawsuit can proceed (Climatewire, Dec. 1, 2021). The case has yet to go to trial.

Parenteau said he believes the Montana challengers, on the other hand, can make a “pretty strong case” that the state’s energy policies will further contribute to climate change.

“By itself, a trial on climate change isn’t going to change the direction of climate change,” he said, “but for historical purposes and for rallying the public, this trial has an opportunity to influence.”

Psychological toll

Olivia Vesovich, 19, one of 16 young people in Montana who are suing the state over climate change, stands recently on the University of Montana campus where she is a student.
Olivia Vesovich, 19, one of 16 young people in Montana who are suing the state over climate change, stands recently on the University of Montana campus where she is a student. | Lesley Clark/E&E News

The young Montana climate activists have faced stumbling blocks in their journey toward their watershed trial.

A key point in the litigation is the mental and physical harm that climate change presents for Montana residents — particularly the younger generations that must reckon with a warming planet for decades to come. Lawyers for the challengers have lined up physicians who will testify in June about how climate change and air pollution disproportionately affects children, as well as a psychiatrist and climate activist who will talk about the psychological and mental effects of climate change on children and young people.

But the involvement of psychiatrist Lise Van Susteren in the trial prompted Montana to ask for independent medical examinations for eight of the young challengers, arguing that because the youth had raised mental health issues, the state is entitled to determine whether the laws that are being challenged were a cause.

Seeley denied the request in October, calling the examinations “invasive” and ruling that even if the “psychological aspects” of the young challenergs’ injuries were excluded from trial, they would still have standing “based on alleged economic, physical health, aesthetic and recreational injuries.”

Potential expert witnesses for the state include employees with the Montana Department of Environmental Quality and Howard Hayden, a retired professor of physics at the University of Connecticut who contends that greenhouse gas emissions are not harmful and have “played a role in the greening of the earth.”

In a summary provided to the court, Hayden wrote that “not only would plaintiffs’ demands do nothing to alleviate their alleged harms, but in fact they would actively cause further harm: the harm of forcing our progeny to live without the myriad benefits of fossil fuels.”

Other possible witnesses for the young people include a retired U.S. Geological Survey scientist who will call the retreat of the glaciers, including those at Glacier National Park, the “result of human-caused global warming” and experts from the University of Montana and Montana State University who will testify about climate change trends.

During the June trial, the court will hear from several of the young climate activists themselves.

For Olivia Vesovich, 19, a challenger in the case and a student at the University of Montana, the lawsuit represents a lifeline. Vesovich has exercise-induced asthma and said the state’s wildfire season — which gets longer every year as the summers get hotter and drier — exacerbates her condition and forces her indoors.

The lawsuit, she said, gives her an outlet for the anxiety she’s felt about the climate ever since one of her grade-school teachers told the class that their children may be the last generation to see the state’s glaciers. She’s already participated in climate talks at school, helped set up recycling and composting programs and turned to art projects to express the worries she has about the changing planet.

“There is a lot of climate despair,” she said of herself and her peers.

“It’s just this giant, daunting task that’s so massive,” she continued. “I felt no matter how hard I worked and put my heart and soul into climate activism, it wouldn’t get any better. That’s why I wanted to be part of the case.”

‘Being a kid doesn’t make my opinion invalid’

Regardless of Seeley’s decision after the June trial, the youth climate case is all but certain to end up on appeal before the Montana Supreme Court.

The bench has long been viewed as progressive, particularly for a state that in recent years has turned increasingly red. Republicans in 2020 captured the governor’s mansion for the first time in 16 years, expanded their majorities in both legislative chambers and won every statewide seat on the ballot. They’ve also targeted the judiciary: this year’s contest between sitting Justice Ingrid Gustafson and Republican utility regulator James Brown was the most expensive Supreme Court race in state history. Gustafson, who was appointed by former Gov. Bullock, retained her seat.

Though the addition of one member would have been unlikely to immediately change the court, every new person on the bench “changes the dynamics,” retired Justice Nelson said.

Montana’s constitution could also be modified. It’s already been revised more than two dozen times, including just two years after it was passed.

State Rep. Derek Skees, a Republican representing Kalispell, kicked off a controversy in November 2021 when he criticized a lower-court abortion ruling and told a reporter for the Flathead Beacon that “we need to throw out Montana’s socialist rag of a constitution.” Though he later called his words “perhaps too aggressive,” Skees told reporters he’d like to add the word “productive” to the “clean and healthful environment” clause in the constitution to place more weight on economic concerns.

Democrats used events celebrating the constitution’s 50th anniversary to argue that Republicans could propose more changes to the document if they were to pick up additional seats in the state Legislature. House Minority Leader Kim Abbott warned at a March press conference that a Republican supermajority “could change our right to privacy, could change our right to a clean and healthful environment … and that’s serious.”

A few months later at a constitution celebration at the state Capitol, a recent former Democratic governor, Schweitzer, pointed to Skees’ comments to warn that the document is vulnerable to Republican efforts to weaken it.

“It will be our constitution, if you can keep it,” Schweitzer said, paraphrasing Benjamin Franklin’s reply to a question in 1787 about the kind of government the founders of the United States were creating.

Critics have accused the young climate activists’ parents and guardians — some whom have environmental interests — of using the kids as fronts for their cause.

“The adults participating in (actually, leading) this ‘youth-led’ lawsuit have the agenda and agency here,” wrote Dave Skinner, a former columnist at the Flathead Beacon. “Unilaterally turning global society into a decarbonized utopia by whatever means works. Do they expect their kids will rule this brave new world in turn?”

Mica and Olivia bristle at the charge, insisting they made their own decision to participate — and noting that some parents worried about potential blowback from taking part in a high-profile case. Bellinger said Our Children’s Trust has several conversations with potential plaintiffs and their families before they join the lawsuits to make sure they understand the commitment.

He said the firm discusses what the children know about climate change and how it affects them, as well as what will be expected of them. He said the lawyers also want participants to be realistic about the possible outcomes.

A key factor, Bellinger said, is “making sure that each youth plaintiff genuinely wants to be a plaintiff for their own reasons, and no one is pressuring them to get involved. “

Olivia said she’s faced a few skeptics about the case at school but is “happy to be a part of something that’s bigger than me. “

Mica, who was 11 when the suit was filed, said his parents were “a bit hesitant.” But it was his choice, he said.

“Being a kid doesn’t make my opinion invalid,” he said. “We’re the ones who are going to be here to deal with climate change.”

 

|