Youth environmentalists bring Montana climate case to trial after 12 years, seeking to set precedent

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Mica, 14, Badge 15, Lander 18 and Taleah listen to arguments at a status hearing in Helena on May 12, 2023. They and other Montana youths filed a lawsuit against the state, claiming that Montana officials do not meet their constitutional obligations to provide residents with protection from climate change. The trial is the first of its kind and will begin on Monday, June 12th, 2023 before District Court Judge Kathy Seeley. The trial is expected to last two weeks. (Thom Bridge/Independent Record via AP)

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FILE – A tree catches fire as a wildfire rages near Lame Deer in Montana, August 11, 2021. As it spread across the reservation, the Richard Spring fire threatened hundreds of homes. The young plaintiffs, who are challenging the constitutionality a Montana policy which does not require agencies to take into account the effects of greenhouse gas emission when issuing permits for fossil energy development, claim climate change has made the wildfire season more difficult, and increased the amount of smoke that people inhale. The two-week trial in Helena is scheduled to begin on Monday, June 12th, 2023.

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FILE – A house is sat in Rock Creek in Red Lodge after floodwaters washed a road and bridge away in Red Lodge (Montana), June 15, 2022. The young plaintiffs, who are challenging the constitutionality a Montana policy which does not require the state agencies to take into account the effects of greenhouse gas emission when issuing permits for fossil energy development, claim the state isn't doing enough to stop climate change leading to extreme weather. The two-week trial in Helena is scheduled to begin on Monday, June 12th, 2023.

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FILE – Gas emissions from a coal-burning plant in Colstrip (Mont.), July 1, 2013. The youth plaintiffs are challenging the constitutionality a Montana law that doesn't require state agencies to take into account greenhouse gas emissions when issuing permits for fossil-fuel development. They claim climate change, caused by burning fossil fuels and coal, affects their lives, by making them breathe smoke because of increasing forest fires and limiting their recreation opportunities, and sometimes harming the livelihood of their families. The two-week trial is scheduled to begin Monday, June 12th, 2023 in Helena, Mont.

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FILE On Friday, May 12th, 2023, Judge Kathy Seeley listens as arguments are made during a status meeting for Held vs. Montana at the Lewis and Clark County Courthouse, Helena, Mont. Seeley dismissed a part of the lawsuit brought by young people to challenge the state's policy on energy after the Legislature repealed the law. She said that a trial was still required to determine if the rules used by the state in evaluating fossil fuel development were constitutional, because they do not allow for consideration of greenhouse gas emissions. The two-week trial will begin on June 12, 2023. (Thom Bridge/Independent Record via AP)

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The question of whether a constitutionally protected right to a healthy and livable climate can be protected by state laws is the focus of a Montana lawsuit that goes to trial on Monday. 16 young plaintiffs, along with their attorneys, hope to establish an important precedent.

The first of its kind to be tried in the U.S. is a trial that legal scholars from around the globe are watching to see if it could add to the few rulings which have established the government's duty to protect its citizens against climate change.

The trial takes place shortly after the Republican-controlled state Legislature passed measures that favored the fossil fuel industry, stifling efforts by local governments to promote renewable energy and increasing costs to challenge oil projects.

The environmental firm that filed the lawsuit enlisted plaintiffs between the ages of 5 and 22 to show how climate change is already affecting young people, as well as what will happen in the future. They will describe how heat, wildfire smoke and drought have affected residents' mental and physical health.

Experts say that the youth of the plaintiffs has little direct impact on the legal issues and that the case is unlikely to lead to immediate changes in policy in Montana, which is a fossil fuel-friendly state.

In two weeks' worth of testimony, the attorneys for plaintiffs will call out state officials who are pursuing coal, oil and gas development, in an effort to send a strong message to other states.

Grace Gibson-Snyder (19), a plaintiff, said that she has felt the effects of global warming acutely. Wildfires have regularly covered her hometown Missoula with dangerous smoke. She also noted the drop in water levels in local rivers.

Gibson-Snyder stated that he has seen the Montana State Legislature's choices over the past few years. They are choosing fossil-fuel development. They choose corporations over their citizens' needs.

Gibson-Snyder, a high school environmental activist, was too young to be able to vote at the time she filed suit. Other young plaintiffs are members of Native American Tribes, a family that relies on water supplies, and people who have health conditions such as asthma.

Plaintiffs and experts may point out that farmers' margins were squeezed due to droughts and extreme weather conditions like the destructive floods of Yellowstone National Park last year as evidence that Montana residents are not receiving the clean environment they're entitled to under Montana's Constitution.

Montana experts are expected to minimize the impact of climate change, and the'miniscule contribution' of Montana to global greenhouse gas emission.

Lawyers for Montana Attorney-General Austin Knudsen (a Republican) tried to

Get the case dismissed

Over procedural issues. The state Supreme Court, in a ruling on June 6, rejected the latest attempt at dismissal, saying that justices would not be inclined to interfere just days before a trial which had been "literally years" in the making.

Montana's 1972 Constitution is one of the reasons the case has made it this far, while dozens of other similar cases have been rejected. The constitution requires that officials maintain a "clean and healthy environment." Other states such as Pennsylvania, Massachusetts, and New York have constitutions that include similar environmental protections.

Kathy Seeley, District State Judge, has significantly narrowed scope of case in previous rulings. Seeley said that even if the plaintiffs win, she will not order officials formulate a new strategy to combat climate change.

The judge can instead issue a so-called "declaratory judgement" saying that officials have violated the Constitution of the state. This would establish a precedent for courts to intervene in cases that are usually left up to the executive and legislative branches of government, said environmental law expert Jim Huffman.

Huffman said that a similar ruling would not have a direct impact on the industry. He is emeritus dean at Lewis & Clark Law School, Portland, Oregon.

A declaratory judgement would be a symbol of victory but it would not require the state government to take any specific action. He said that the state would likely continue to do business as usual.

The state's economist, Terry Anderson, testified that carbon dioxide emissions in Montana have decreased over the last two decades. This is partly due to the closure of coal-fired power plants.

In court documents, Anderson stated that 'Montana's energy or environmental policy has virtually no impact on global or local climate changes because Montana's contribution to global GHG (greenhouse gases) is trivial.

Climate change, he said, could benefit Montana by extending the growing season and allowing it to grow more valuable crops.

The lawsuit's supporters predicted a large crowd for the Helena trial, which begins Monday. They rented out a nearby theatre to livestream proceedings for those who couldn't fit into the courtroom.

Attorneys for Our Children's Trust filed the case in 2020 on behalf of young plaintiffs. Since 2011, Our Children's Trust has brought climate lawsuits across all 50 states. The majority of these cases, including the previous one in Montana were dismissed before trial.

According to Philip Gregory of Our Children's Trust, a ruling in favor the Montana plaintiffs may have ripple effects. Gregory explained that while the ruling would not be binding outside Montana it could provide guidance to judges from other states and impact future trials, such as a trial in Hawaii.

A June 1 decision allowing a case filed by young climate activists from Oregon to be tried in U.S. District Court boosted efforts to get a similar ruling at the federal level. The U.S. Supreme Court's Justice John Roberts halted the case on the eve before the trial of 2018.

Our Children's Trust has received more than $20,000,000 in donations from 2011 to 2021. It has grown from four employees to more than forty attorneys and other workers, and more than 200 volunteers.

The group's founder, Julia Olson, said that obtaining the trials in Montana & Oregon was a "huge step" forward.

She said that if the courts start declaring government conduct unconstitutional it will have a profound impact on the future of our planet.

Montana's Constitution mandates that the state'maintain' and "improve" an environmentally clean state. The Montana Environmental Policy Act was originally passed in 1971, and has been amended many times since. It requires state agencies balance environmental protection with resource development.

The policy was revised by lawmakers this year, stating that environmental reviews will not include greenhouse gas emissions or climate impacts until the federal government regulates carbon dioxide as a pollutant.

Jonathan Adler is an environmental law professor from Case Western Reserve University, Cleveland. He said that the key question in the trial will be whether the state contests the science about human-caused emissions of greenhouse gases. The trial will address the question whether courts can order governments to deal with climate change if the state does not deny the science.

Adler replied, "I am sceptical about that." It really pushes boundaries in terms of what the courts can do and how effective they are at dealing with it.

Gibson-Snyder was 16 when she became a student at Yale University, New Haven, Connecticut. The court system was her only option to change things.

She said that she has become a little disillusioned since then. The question isn't just how to create a sustainable policy but also how to dismantle a policy that actively harms Montana.

Brown reported from Billings in Montana. Drew Costley, a writer for the Associated Press, contributed from Washington, D.C.