Held Vs. Montana Seeks To Enforce Provisions In State’s Constitution

Montana is Big Sky country, where people feel a special connection to the land. That connection is enshrined in Article IX of the Montana Constitution, which is entitled Environment And Natural Resources.

In Section 1 — Protection and Improvement, Article IX says:

(1) The state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations.
(2) The legislature shall provide for the administration and enforcement of this duty.
(3) The legislature shall provide adequate remedies for the protection of the environmental life support system from degradation and provide adequate remedies to prevent unreasonable depletion and degradation of natural resources.

Held Vs. Montana

16 young plaintiffs have sued the state, claiming it has failed to provide the protections afforded to them by Article IX. Montana has a flourishing oil and gas industry. According to Statista, it ranks 13th among all US states in oil production, yet The Guardian reports that its greenhouse gas emissions exceed those of some nations.

The trial began on Monday, June 12th, with lead attorney Roger Sullivan telling the court that climate change is fueling drought, wildfires, extreme heat, and other environmental disasters throughout Montana, all of which are taking a major toll on the young plaintiffs’ health and well being. There is a “scientific consensus,” he noted, that these changes can be traced back to the burning of fossil fuels.

Sullivan described how some plaintiffs have asthma that has been worsened by abundant wildfire smoke in recent years. Some love to hunt and fish, but have seen stocks deteriorate. One plaintiff works as a ski instructor — a job threatened by warm winter temperatures and decreasing snowfall. Still others are members of Indigenous tribes whose cultural practices are threatened by climate crisis-linked shifts in weather patterns, he said.

“Pish tosh,” replied Montana assistant attorney general Michael D. Russell, who told the court, “Climate change is a global issue,” and that whatever emissions Montana may be responsible for, they are “too minuscule” to have any impact on the fact that the Earth is getting hotter.

Our Children’s Trust

The legal action against the state of Montana is being supported by Our Children’s Trust, an environmental group formed in part by Dr. James Hansen, the former NASA climate scientist who testified before the Senate Committee on Energy and Natural Resources on June 23, 1988.

Hansen testified that “Global warming has reached a level such that we can ascribe with a high degree of confidence a cause and effect relationship between the greenhouse effect and observed warming…It is already happening now. The greenhouse effect has been detected and it is changing our climate now…We already reached the point where the greenhouse effect is important.” Hansen added that NASA was 99% confident the warming was caused by the accumulation of greenhouse gases in the atmosphere and not a random fluctuation.

Hansen’s words, of course, have been largely ignored by the US government since that day, and the fossil fuel industry has viciously attacked him and many of his fellow climate scientists, such as Michael E. Mann, claiming among other things that they are charlatans seeking to make a quick buck by attracting lucrative research grants.

But Hansen has never backed away from the truth. Our Children’s Trust has also brought suit against the United States in federal court in a case entitled Juliana Vs. US. Hansen’s granddaughter is one of the young plaintiffs in that case. (Some of them are not so young anymore. The suit was filed in 2016 and is scheduled to go to trial soon, after the US Supreme Court refused to put the kibosh on it.)

A Climate Trial Begins In Montana

On the first day of the trial, Rikki Held, the 22-year-old named plaintiff in the lawsuit, testified about the impacts the climate crisis has had on her family’s ranch outside Broadus in the southeast corner of the state. She grew up on the ranch, helping raise livestock and build fences. But she’s seen dramatic changes on the ranch since she was a young child. “Some of the impacts are just with wildfires, drought, flooding, more extreme weather events such as windstorm and hail, changes in wildlife behavior,” she said.

Drought and decreased snowfall have both threatened the ranch’s water supply, making it harder to provide for her family’s livestock, while smoke from wildfires has made it difficult to work outside. Seeing these changes has also affected her psychological health, Held said. “It’s just stressful because that’s my life and my home is there.”

Steven Running, professor emeritus of ecosystem and conservation sciences at the University of Montana, also took the stand. He was a member of the Intergovernmental Panel on Climate Change and won the Nobel Peace prize for his work in 2007. He told the court how the climate crisis has contributed to the increasing severity and frequency of disruptive weather events such as extreme heat and drought in Montana and globally. “I think Montana and really everywhere else needs to, as rapidly as possible, quit burning fossil fuels. It’s quite straightforward,” Running testified.

The History Of Article IX In The Montana Constitution

In March, the Montana  Free Press published a detailed analysis of how Article IX came to be and what its effect has been since its passage in 1972. It was a time when many of the country’s bedrock environmental protections enjoyed widespread bipartisan support while Republican President Richard Nixon was in office.

“In the late 1960s and early 1970s, the U.S. Senate unanimously approved landmark laws like the Endangered Species Act and the National Environmental Policy Act — measures that garnered yes votes from more than 95% of U.S. House members as well. Near-universal support for these and other environmental measures helps illustrate the national mood in 1972, when 100 Montana delegates convened in Helena for the Constitutional Convention.

“It was a time when western Montana rivers like the Clark Fork were laden with heavy metal contamination from industrial mining, terraced clear cuts were en vogue on the Bitterroot National Forest, and air in the Missoula valley was sometimes so thick with pulp mill pollution that Mount Sentinel was rendered invisible from downtown.

“Enshrining a new approach to environmental protection beyond what was afforded by the 1889 Constitution, which had been drafted under the leadership of Butte copper baron and pollution apologist William A. Clark, was top of mind for Bob Campbell and Mae Nan Ellingson, two convention delegates who hailed from Missoula,” and who were the principal architects of the new state constitution.

The Montana Free Press says Article IX has had little effect on the law in that state, where the legislature today is primarily concerned with sheltering the fossil fuel industry from any and all challenges. In a 1999 decision, the Montana Supreme Court ruled the judicial branch need not wait for an environmental harm to occur before acting to prevent it.

Juliana Vs. US Set For Trial

While this climate litigation is proceeding in state court in Montana, federal district court judge Ann Aiken has put Juliana Vs. US back on the trial list, meaning it is expected to go forward this year. Julia Olson of Our Children’s Trust is the lead attorney for the plaintiffs in that case.

Olson told Common Dreams recently that the judge’s ruling putting the case on the trial calendar “is our legal system working the way it should — a fair and well reasoned application of the law in a vitally important constitutional case where children’s lives are at stake. These young people have a right to access their courts and, after several long years, finally have their evidence of climate harm caused by their own government — and how to stop it — heard in open court.”

We can be certain that no matter the outcome of that court case, the US Supreme Court will have the final say, something that makes climate advocates nervous, given that six of the current justices were suckled their whole lives through by the Federalist Society, a hard-right group created in part by Charles Koch.

What Is An Appropriate Remedy?

The hard part for any court that gets involved in such litigation will be fashioning an appropriate remedy if the plaintiffs are successful. Decades ago, the federal courts were faced with the challenge of integrating the nation’s schools during the days of civil rights activism. The solution they came up with was busing black children to white schools and vice versa, a process that ignited strong passions and probably affected those involved for rest of their lives. It may also have been the trigger for the aggressive tactics of the radical right many decades later. Busing was a scar on the American psyche that lingers to this day.

There’s an old joke about the dog which caught the car it was chasing. What does the dog do with it afterwards? Are the courts the proper place to establish climate policy for the nation? No matter how much our hearts may be with these young plaintiffs and Our Children’s Trust, the remedy, should they win, is hard to imagine. A court can award money damages against a corporation, but what can it do to a state or federal government? We can think of two people who are residents of Florida today who would likely tell the courts to go pound sand if they ever happened to make it to the White House.

In 1892, President Andrew Jackson was distraught over a decision by Chief Justice John Marshall. Afterwards, he said, “John Marshall has made his decision. Now let him enforce it.” It is impossible to predict what the outcome of either of these court cases will be.