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Youth climate lawsuit will go to trial
despite Montana effort to derail case
By
The Associated Press
May 12, 2023
Judge Kathy Seeley listens to arguments during a status
hearing for Held vs. Montana in the Lewis and Clark County Courthouse
in Helena, Mont., on Friday, May 12, 2023. Seeley said a climate
change lawsuit from young people challenging the stateâ??s pro-fossil
fuel policies will proceed to trial despite efforts by officials to
derail the case. (Thom Bridge/Independent Record via AP)
HELENA,Mont. — A
Montana judge on Friday said a climate change lawsuit from young
people challenging the state's pro-fossil fuel policies will proceed
to trial despite efforts by the state to derail the case.
The upcoming trial in Helena would be the first
of its kind in the United States, according to experts in climate law
who said the nation is lagging behind the rest of the world in terms
of climate litigation.
However, because of prior rulings that limited
the scope of the Montana case, a victory for the plaintiffs would not
automatically alter the state’s regulation of fossil fuels.
Attorneys for the 16 young plaintiffs alleged
state officials were trying to avoid the upcoming trial when
Republican lawmakers in March repealed the state’s energy policy — one
of two laws that the case challenges. The plaintiffs and their backers
are hoping to use the two-week trial that's set to start on June 12 to
highlight the dangers of fossil fuel emissions that scientists say are
making climate change worse.
Montana Attorney General Austin Knudsen, a
Republican, had asked state Judge Kathy Seeley to dismiss any part of
the case touching on the cancelled energy policy. Attorneys for the
state also wanted more time to resolve a dispute over recent
amendments to a law that allows officials to ignore greenhouse gas
emissions when approving fossil-fuel projects.
The judge was not swayed.
“I would suggest you continue to prepare for
trial,” Seeley told attorneys at the end of a Friday court hearing.
“I’m not intending to just stop everything so that we can spend months
wrapped around that spoke."
The case was brought in 2020 by attorneys for the
environmental group Our Children's Trust, which since 2010 has filed
climate lawsuits in every state on behalf of youth plaintiffs. Many
cases — including a previous one in Montana — have been dismissed.
The latest Montana lawsuit originally sought in
part to repeal a state policy promoting coal, gas and oil development.
Scientists say burning those fuels is largely driving climate change
by releasing planet-warming carbon dioxide.
An attorney for the plaintiffs, Philip Gregory,
told The Associated Press the policy was repealed by the Legislature
“not because the state has committed to changing its fossil fuel
policy and actions, but because the state seeks to avoid standing
trial.”
He said the state’s continued support for fossil
fuels violates environmental protections in the Montana Constitution,
which says the state “shall maintain and improve a clean and healthful
environment in Montana for present and all future generations.”
The lawsuit documents how the consequences of
climate change already are being felt by the young plaintiffs, with
smoke from worsening wildfires choking the air they breathe and
drought drying rivers that sustain agriculture, fish and wildlife.
The state argued that the plaintiffs were
resorting to “emotional appeals” about the dangers of climate change,
regardless of whether their legal claims have merit. They should have
challenged specific laws that allow state agencies to issue permits
for fossil fuel projects, said Assistant Attorney General Michael
Russell.
When plaintiff's attorney Roger Sullivan said
that Montana had never denied a fossil fuel development permit,
Russell said projects that meet state requirements cannot be denied.
Judge Seeley already narrowed the scope of the
case, ruling in 2021 that it was outside her power to issue a
requested order that would have forced the state to craft a greenhouse
gas reduction plan. The judge also said she could not order the state
to complete an inventory of emissions caused by fossil fuels.
In both instances, Seeley said such work should
be left to experts in the executive and legislative branches of
government.
But Seeley said the court could declare that the
state was in violation of the Constitution, without ordering that
anything be done in response.
Sandra Nichols Thiam, an attorney with the
Environmental Law Institute, said that could further the case of the
failure of governments to address climate change.
“It’s highly significant that this case is going
to trial at all,” Thiam said. "Getting all of this information on the
record will be a major advancement in climate litigation.”
The sponsor of the measure that repealed the
energy policy, Republican Rep. Steve Gunderson, did not return a call
seeking comment. He said when it was under consideration before the
Legislature that the policy was meaningless and outdated.
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