Q&A: A Legal Scholar Calls the Ruling in the Montana Youth Climate Law…

From our collaborating partner “Living on Earth,” public radio’s environmental news magazine, an interview by Managing Producer Jenni Doering with Pat Parentau, emeritus professor at Vermont Law and Graduate School, on the ruling this week by a Montana judge in favor of a group of youth plaintiffs who claimed in a lawsuit that the state’s promotion of fossil fuel development violated their constitutional right to “a clean and healthful environment.” With Executive Producer Steve Curwood.

STEVE CURWOOD: In a first of its kind ruling in the U.S., sixteen young plaintiffs have won their suit against the state of Montana over its refusal to protect them from climate change.

This climate case is one of several that have been filed by youth plaintiffs in states
including Hawai’i, where extreme heat, drought, and hurricane-fed winds recently fueled
the nation’s deadliest wildfires in a century.

So, Donald Trump, Ron DeSantis, Tim Scott, Joe Manchin, oil companies, and anyone in power who denies climate change, to me are the arsonists here. And we’re living the climate emergency.

JENNI DOERING: Young plaintiffs in Hawai’i seek to hold the state Department of Transportation accountable for projects that lock in the use of fossil fuels, with a trial set for June 2024.

There are also youth climate lawsuits against the states of Virginia and Utah, and the
Juliana case against the federal government is still in play in Oregon. In her 108-page ruling on the Montana case, Judge Kathy Seeley cited the strong scientific record on climate change presented at trial and linked it to the harms the young plaintiffs are already experiencing.

Joining us now to explain the unprecedented ruling and its impact is Pat Parenteau,
emeritus professor at Vermont Law and Graduate School. Welcome back to Living on Earth, Pat!

PAT PARENTEAU: Thanks, Jenni, good to be with you.

DOERING: So what was your reaction to this ruling Pat?

PARENTEAU: Well, it was a huge ruling frankly. This was the first time a court in the United States has ruled that there is a constitutional right to a safe climate, in effect. It’s based on the Montana State Constitution. And the Montana Supreme Court has recognized that a right to a healthy environment is a fundamental right of Montanan’s in a case in 1999. So it’s been on the books for a long time. But this is the first time any court in the U.S. anyway, has gone that far, to base a decision on a constitutional right, to a safe climate. So a huge breakthrough. It is a lower court opinion, it will be appealed. So we’ll have to wait and see how it turns out in the Montana Supreme Court, but it’s an
incredibly strong opinion.

DOERING: So this is the first ruling of its kind of nationwide? What arguments did Judge Seeley use to support her ruling in favor of the youth plaintiffs?

PARENTEAU: You know, the thing that struck me the most about her opinion is the careful way in which she made a long list of factual findings, over 200. So she has built the strongest, what we’d call evidentiary record, that any court has done. So from the individual harms that the 16 youth plaintiffs in this case are suffering, she went through each and every one of them, and showed how each one of them is being individually impacted right now, by climate change.

She went through how the state of Montana is suffering from climate change, and the familiar stories that we know, wildfires and drought, melting, snowpack, melting glaciers, all of that, very carefully. Then she went through the policies that the state is pursuing that’s making all of that worse. Then she went through the expert testimony on what Montana could be doing to reduce emissions to shift to cleaner energy sources.

So, from that standpoint, this is a remarkable blueprint that the court has developed, based on evidence not based on argument, but based on evidence of what’s happening, and what could be done to reduce these emissions, and also increase steps to adapt to climate change. So to me, in addition to the remarkable legal ruling, this case should be looked at as a blueprint for what each and every state in the United States should be doing and could be doing. So it’s a very valuable contribution to solutions to the climate crisis.

DOERING: Indeed, and Pat it’s kind of refreshing, because so much of the time we’re talking with you about procedural aspects of cases like this one, and not hearing a judge and seeing a judge in her ruling actually digging into that science that you mentioned.

PARENTEAU: Yes. When it comes to the actual ruling and remedy, it is fairly modest. The State of Montana has passed a law. This is really quite remarkable. That actually prohibits state agencies from considering climate change impacts when their licensing and approving fossil fuel development for coal mines, for oil and gas development. I mean, it really is quite striking that a state would even adopt such a law, but Montana did.

She said that law violates the Constitution of Montana, and she invalidated it, and she enjoined the state from relying on that law in refusing to consider climate change impacts. She did not go as far as the plaintiffs requested, which is to declare the entire Montana energy policy unconstitutional, but she certainly said the way that you are currently making decisions that are blinding you to what’s actually happening in Montana is unconstitutional. So she’s laid out, you know, what the state should be doing and she’s told to state, at least consider all of these things and make better decisions.

DOERING: So the 16 Youth plaintiffs in this case alleged that the state government’s pro fossil fuel policies contributed to climate change. What evidence did they bring forward to support that claim?

PARENTEAU: They brought forth a lot of evidence, they had testimony from experts, Anne Hedges, who is an alum, a graduate of the Vermont Law School, my law school, and was a student of mine. She’s with the Montana Environmental Information Center. She testified that she participates on a routine basis in all of the regulatory actions that the state is taking to approve fossil fuel development, and of course, from her organization’s standpoint, opposing a lot of that or at least trying to slow it down.

So she was able to tell the court, “I’ve participated for 20 some years or more and I’ve never seen the state deny a permit for this development or consider the consequences of what they were doing.” And what was interesting is when the state’s turn came to put on witnesses, their witnesses validated what was being said. Their witnesses basically said, “No, we don’t consider climate, we can’t consider climate and no, we’ve never denied a permit for for any of this fossil development, right.”

So the judge had before her really undisputed facts that the state was systematically refusing to take climate change into account in these major long term infrastructure type decisions. And right along with that, the plaintiffs produced expert testimony from doctors who said that these individual plaintiffs are suffering from both physical and psychological or mental impacts from what’s happening, and also the uncertainty about what’s going to happen.

And undisputed testimony from Montana scientists testifying as to what’s happening to the environment in Montana as a result of climate change in great detail. And then testimony from Mark Jacobson, who’s a well known environmental engineer on the faculty at Stanford University, a leader on energy technologies, saying, you have at your disposal many opportunities to develop solar and wind and hydropower, and other ways of getting off of fossil fuel, creating jobs, adding to the economy and all the rest of that.

So all of this kind of evidence, you know, is now part of a public record. And because it wasn’t contested by the state, on appeal the Montana Supreme Court is going to have to accept all of those factual findings as truth.

DOERING: Wow. So then, if this does go up to the Montana Supreme Court, what leeway does the state have in terms of what they can actually argue and how they could win there?

PARENTEAU: The state keeps arguing that even if you accept all this as true, Montana’s emissions just don’t amount to anything. So their argument to the Montana Supreme Court is that you should just rule that the courts have no role to play in addressing the climate issue or climate problem. And, of course, they’re going to have a hard time arguing that the state is actually doing anything about the climate problem since the record in the case shows they’re not, in fact, they’re making it worse.

They’re also going to argue that the Montana Supreme Court should review this earlier decision in the 1999 case called MEIC, Montana Environmental and Information Center, against the state Department of Environmental Quality and the state of Montana. And I think they’re going to try to argue that, that decision was wrongly decided, that there’s no right of an individual to enforce the constitutional right to a healthy environment directly. They may try to make that argument.

DOERING: So what difference does the ruling in Montana make do you think? And what does it mean for the climate crisis?

PARENTEAU: That’s a really good question and a hard one, because in one sense we should be celebrating this breakthrough. And it certainly is better than having a court declare there is no constitutional right to a safe climate. But I do believe that the renewable energy movement is going to ultimately succeed to displace fossil fuel.

The question is, will it do so in time to make a difference? So when you start
looking at the problem from that perspective, individual lawsuits aren’t going to
accomplish that, but they can help keep pressure on both private sector and public sector to move forward. But honestly, we need a much more comprehensive set of policies to
make that actually happen in the timeframe, the limited timeframe, we have.

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DOERING: Right. Well, then on a symbolic level, how do you think this case impacts things and impacts the fight against climate change?

PARENTEAU: Boy, I hope it does, beyond just symbol. I would encourage people that are curious about this case, to actually read Judge Seely’s very careful, very meticulous decision and opinion. And as you go through her very detailed factual findings, see if you aren’t convinced by what she’s saying, in this decision, that these impacts are incredibly real, immediate, and they’re affecting our kids in ways that will be permanent for the rest of their lives.

We talk with this arcane language of standingenvironmental standing. What does that mean? Well, you read what it means to each and every one of these individual young people. You read about kids with asthma, who are experiencing more asthma attacks. You read about kids that have been part of a ranching family for generations, watching the effects of drought and fire impact their homes and their land, and so forth.

The Native American kids talking about the way life on the reservations in Montana are changing and those communities are already challenged in terms of health and economy and climate is making all of that worse. So yes, it does put a human face, a young human face on the case, and the detail of exactly how climate impacts them on a daily basis every day. If you’re not moved by that, then I guess you just simply can’t be moved. But it certainly is the kind of lived experience that people should care about. And I think people would care about it if they took the time to listen and read and understand it.

DOERING: Pat Parenteau is an emeritus professor at Vermont Law and Graduate School. Thank you so much, Pat.

PARENTEAU: Thanks for having me, Jenni.