In Montana, Children File Suit to Protect ‘the Last Best Place’

insideclimatenews

Part of a 50-state strategy, the lawsuit highlights Montana’s love of wild landscapes to force the state to address the climate impacts of fossil fuels.

Judy Fahys

BY JUDY FAHYS

APR 29, 2020

Old lodgepole pines in Montana killed by the mountain pine beetle stand beside young, healthy trees in the Beaverhead-Deerlodge National Forest. As climate change makes summers hotter and drier in the Northern Rockies, forests are threatened with increasing insect infestations, including the mountain pine beetle outbreak. Credit: Chip Somodevilla/Getty Images

She’s identified only as Kathryn Grace S., one of 16 youths who’ve sued to keep the state of Montana from promoting the use of fossil fuels, threatening their future.

To read the 108-page complaint, filed in March, is to understand that they’re fighting for what Montanans call “the last best place.”

Grace, 16, says in the complaint that drought has dried up the Clark Fork River for rafting.

Georgianna F., 17, fears shortened winters have reduced snow she needs to train for Nordic skiing.

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Ruby D., 11, of Crow descent, claims frequent wildfires have scarred lodgepole pines needed for the teepees essential for the ceremonies that are part of her identity.

While lawyers for the state responded last week in briefs that the courts aren’t the right place to fix the climate crisis, attorneys for the children say they are suing Montana not for failing to act on climate change, but for harming the environment by promoting the use of coal, oil and gas.

The Montana case, led by the non-profit public interest firm, Our Children’s Trust, is part of a 50-state campaign to put government policy contributing to climate change before the courts.

A landmark national climate change suit, Juliana v. USA, was thrown out in January by the Ninth Circuit Court of Appeals, where judges ruled 2 to 1 that climate change is not an issue for the courts. The plaintiffs, also led by Our Children’s Trust, have since petitioned for a rehearing.

The Montana case is one of seven state actions, including lawsuits filed in Alaska, Colorado, Florida, North Carolina, Oregon and Washington.

In Montana, lawyers for the plaintiffs offer vivid examples of how their young clients’ lives are being shattered by a warming planet to underscore the state’s failed constitutional obligation: guaranteeing all citizens an inalienable right to a healthy environment.

“What we’re trying to do is uphold our constitutional rights,” said Grace, in an interview. (None of the minor plaintiffs used their last names in the lawsuit).

A sixth-generation Montanan, she spends a lot of time outdoors, playing soccer, rafting nearby rivers and hiking the Rattlesnake Wilderness north of where she lives in Missoula. Perhaps her favorite place is the Lamar Valley of Yellowstone National Park, which is sometimes called the American Serengeti because of its rich wildlife: bison, antelope, elk, trout and a famous wolfpack.

But now she’s worried enough about the climate impacts she already sees—the wildfire smoke that nixed soccer practice, the drought that’s dried up the rivers—that she wonders whether her own children will have the chance to experience the place she loves so much, and even whether it’s ethical for her to have children.

“What we want is for the courts to encourage or institute a climate recovery plan that lowers our fossil fuel rates to the point where we’re not harming the environment anymore,” she said, “and to uphold our constitutional rights for a clean environment.”

Nate Bellinger, one of the childrens’ lawyers, acknowledged the storytelling strategy. “A central part of that story is how the youth plaintiffs … are currently being impacted by climate change,” he said, “and how they are expected to be impacted by climate change if it’s not addressed.”

Two brothers, Lander B., 15, and Badge B., 12, say the changing climate is making it harder to hunt the elk and deer that their family depends on for food and that warm temperatures and low stream waters make it harder to fish for cutthroat, rainbow and bull trout.

Kian T., 14, reports in the complaint that trees on his family’s property—birch, spruce, aspen, cottonwood and firs—are dying because warmer winters have led to increased insect activity.

The young plaintiffs’ concerns are exactly the sort of complaint you’d expect from Montanans whose shared identity is bound up in the wildness and beauty of the Big Sky state’s breathtaking mountains and plains.

In some ways, the lawsuit itself is the latest chapter in the 50-state, coming of age story about the legal fight to combat climate change that began eight years ago. In Utah that year, children were among 20 petitioners who pressed environmental regulators to start accounting for climate change in state regulations.

In Wyoming, a case called Kids v. Global Warming pressed environmental agencies to begin restricting and reducing fossil fuel emissions enough to limit CO2 to 350 ppm by 2100. The petitions were denied in both cases.

An earlier Montana case asked the state Supreme Court to rule that the atmosphere should be held in trust for citizens, but justices declined to take up the case.

“We aren’t suing Montana or the other states for their failure to act on climate change,” Bellinger said, trying to correct a misperception about the cases. “It’s because the state is actively harming the environment it’s constitutionally mandated to protect.”

It’s this constitutional provision that gives the Montana suit its unique strength, Bellinger and other legal experts agreed. The preamble to the state’s constitution says: “We the people of Montana grateful to God for the quiet beauty of our state, the grandeur of our mountains, the vastness of our rolling plains, and desiring to improve the quality of life, equality of opportunity and to secure the blessings of liberty for this and future generations do ordain and establish this constitution.”

Montana’s unique approach to the environment is also part of a learning curve that builds upon the lessons of past setbacks and failures in the youth climate cases, said Richard Frank, a law professor, blogger and director of the California Environmental Law and Policy Center.

The Montana case, he noted, focuses on particular injuries being suffered by the 16 plaintiffs rather than simply making sweeping, heady arguments about violated “atmospheric trust litigation” as past legal and administrative actions did. The more recent cases are also stronger because they rely on new sophisticated, scientific conclusions that were not available to lawyers involved in the earlier cases, he said.

“The key point for me is that it’s a lot more strategic,” Frank said. “It’s more tactical, it’s more science.”

In the Montana lawsuit, the children argue that Montana undermines their birthright in two significant ways: with a state energy policy that explicitly promotes fossil fuels, and a prohibition on accounting for climate change in decision making. As a result, models project annual average daily maximum temperatures in the state will increase by as much as 6.0 degrees Fahrenheit by mid-century, “a temperature increase that would imperil human civilization,” and go up by as much as 10 degrees by the end of the century.

“It is as if the Earth has a constant fever,” the lawsuit says, “and just as in the human body, even a slight rise in temperature weakens the organism, increases the vulnerability of the organism, and can have dangerous long-term effects on the system.”

The lawsuit contends that the Montana Department of Natural Resources and Conservation “has authorized, permitted, licensed, and encouraged fossil fuel exploitation, extraction, and production, and forestry practices and activities that have caused and contributed to dangerous concentrations of atmospheric GHGs and the climate crisis and harmed Youth Plaintiffs.”

Allowing refineries to spew millions of tons of carbon dioxide equivalent, permitting the 1,210-mile Keystone XL Pipeline to traverse the state, and approving a 977-acre expansion of the state’s largest coal mine are just some of the ways in which Montana has bowed to fossil fuels, the lawsuit says.

Regulators did not examine emissions impacts for the coal mine, nor did they estimate the climate impact of the 90 percent of Montana-mined coal that was burned out of state, the suit says

“Defendants—who manage, operate, and regulate the energy sector by and through the State Energy Policy—have the authority to produce renewable energy sources,” the lawsuit says, noting that state agencies authorized almost seven times as much fossil fuel energy as renewables. “Nevertheless, Defendants are manifestly indifferent to Youth Plaintiffs’ injuries and continue to authorize energy from fossil fuels as opposed to renewables.”

Bellinger, the childrens’ attorney, pointed out that as early as 1968, Montana leaders were discussing the implications of growing greenhouse gas emissions. “That’s just not really compatible with the future that these youth want to live in Montana and protect the environment,” he said.

Even with the more narrowly drawn claims in the Montana lawsuit, some still doubt it will be successful. Sam Kazman, general counsel at the Competitive Enterprise Institute, a non-profit libertarian think tank, cited the state’s constitutional provision when he said: “I think it does have a slightly better shot than the Juliana case.”

But, ultimately, he’s not convinced that the Montana case will go any farther than the better-known national case. In an echo of the criticism leveled against the Juliana case, he said developing and implementing an energy policy is not something that courts are well-equipped to do.

“Ultimately, I think it is still trying to get a court to take over what really is a host of legislative functions,” Kazman said, echoing arguments made by the state’s attorneys.

Montana environmental lawyer Jack Tuholske said the case shines a compelling spotlight on the state constitution’s healthy environment provision. The guarantee of environmental health, he said, was added in 1972 because of historic mining pollution in a state where industry had outsized influence on lawmakers.

“This [case] is very much in a context of the history and culture of the state,” he said. “It’ll be interesting to see how the court approaches this case, based on the Constitution.”

ABOUT THE AUTHOR

Judy Fahys

Judy Fahys has reported on the West decades from Washington, D.C., and Salt Lake City. After covering the environment, politics and business at the Salt Lake Tribune, she fell in love with audio storytelling as the environment and public lands reporter for NPR Utah/KUER. Previously, she spent an academic year as a Knight Science Journalism fellow at the Massachusetts Institute of Technology. Her work has appeared in the New York Times, the Washington Post, High Country News and Outside magazine and aired on NPR. She serves on the board of the Society of Environmental Journalists.

You can reach her at judy.fahys@insideclimatenews.org.