Grace Gibson-Snyder, 19, loves her home state of Montana. Thinking about its future fills her with fear.
She’s seen the lands she loves change since she was a child, she told the first judicial district court of Montana this week. The rivers she grew up rafting are getting lower amid frequent dry spells. The air she breathes in during soccer practice more frequently fills with wildfire smoke. And in Glacier national park in Montana’s Rocky Mountains, the glaciers are melting.
“I have hopefully 80 years left of living in Montana and living on this earth,” she said on the stand. “Knowing that my health will be in danger for those 80 years, my livelihood, my home? That’s a long time to live with that.”
Gibson-Snyder is one of the one of the 16 youth plaintiffs in the 2020 lawsuit Held v Montana. It’s being heard in the state capital, Helena, this week and next, marking the first constitutional climate trial in US history.
The 16 young challengers argue that by enacting pro fossil-fuel policies, state officials have violated their constitutional rights to a healthy environment.
Similar youth-led constitutional lawsuits are currently pending in four other states; one federal suit, Juliana v United States, is also pending and was recently announced to be headed to trial.
But Held v Montana is the first to reach that crucial stage. The case, which will be decided by Judge Kathy Seeley, could have reverberations around the country, experts say.
“I think that a favorable decision in this case would be very energizing to potential plaintiffs around the country and indeed, around the world,” Michael Gerrard, founder of the Sabin Center for Climate Change Law at Columbia Law School, said.
Though its technical legal precedent won’t apply beyond Montana’s borders, it could inspire litigation in other places. More youth may file lawsuits. More law firms might get involved. And other judges may be more willing to hear their cases.
Held v Montana specifically targets part of the Montana Environmental Policy Act which prevents the state from considering how its energy economy may contribute to climate change. That provision, the plaintiffs and experts witnesses testified this week, is not compatible with the state’s constitutional environmental rights because it exacerbates the climate crisis.
At the trial, attorneys for the state have suggested that the plaintiffs’ allegations are absurd.
“Montana’s emissions are simply too minuscule to make any difference,” Michael Russell, the state’s assistant attorney general, said in his opening statement.
If the Montana Environmental Policy Act were altered or overturned, he insisted, there would be “no meaningful impact or appreciable effect” on the climate. In fact, Montana’s carbon contributions are so inconsequential that the state’s role in the climate crisis is “that of a spectator”.
Attorneys for the state repeated this line of reasoning throughout the week as youth plaintiffs and experts who they invited to the stand spoke about the dangers of greenhouse gas emissions. But this tactic, experts say, is nothing new.
In the groundbreaking Massachusetts v EPA, where Massachusetts and 11 other states and some cities sued the Environmental Protection Agency to force it to regulate planet-heating pollution, the US government attempted to use the same tactic, arguing that curbing US motor vehicle emissions wouldn’t appreciably help the climate, Gerrard explained.
“The supreme court rejected that argument,” he said.
Defendants in other climate lawsuits have also tried to deflect responsibility. Since 2017, states and municipalities have brought a slew of lawsuits against fossil fuel companies for hiding the dangers of the climate crisis. The defendants have long argued that the cases should be heard in federal courts instead of the state courts where they were filed, which are seen as more favorable to the challengers. But the supreme court pushed back on that in two recent decisions.
The tactic goes back even further, said Kert Davies, director of the Climate Investigations Center, which researches climate misinformation. As early as the 1990s, the Global Climate Coalition – an international lobbying group of businesses such as Exxon, Chevron, Ford, and General Motors that opposed climate action – made a similar argument to argue against the necessity of the Kyoto protocol, he said.
“They sought to take pressure off the US and off US business by saying, this isn’t a global treaty so it won’t work,” he said.
Some influential scholars call the strategy “whataboutism”. A 2020 study led by Berlin-based researcher William F Lamb identified the tactic as a “discourse of delay” employed by the fossil fuel industry to intentionally push off climate action.
The problem with “whataboutism” is that it contains a grain of truth. The climate crisis is, indeed, a global problem – one that Montana can’t take on alone.
But as Peter Erickson, a researcher at the Stockholm Environment Institute and an expert witness invited by the plaintiffs, testified on Thursday, Montana is responsible for more greenhouse gas pollution than some countries. In 2019, he explained, energy consumed within the state’s borders created as many emissions as Ireland, which has a population six times larger than Montana’s.
Every unit of greenhouse gas emitted warms the planet, the plaintiffs and their attorneys and expert witnesses said repeatedly. Though Montana can’t tackle the problem alone, it can make a real contribution.
“As most people know who work in this space, every ton of carbon matters and that’s no different in Montana,” said Barbara Chillcott, a senior attorney at the Western Environmental Law Center who is representing the plaintiffs.
A favorable verdict in Montana could also kick off action in other places, Steven Running, professor emeritus of ecosystem and conservation sciences at the University of Montana and expert witness for the plaintiffs, said on the stand.
“What has been shown in history over and over and over again is when a significant social movement is needed, it often is started by one or two or three people,” he said.
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