A trial continues this week in Helena, Montana, in a case brought by 16 young people who claim that the state of Montana is violating their constitutional rights by allowing oil and gas production.
The Montana Constitution guarantees a healthy environment, but state law bars agencies from considering any action outside the state of Montana when issuing permits for fossil fuel projects, including the impacts of global greenhouse gasses.
That law, the plaintiffs argue, is therefore in conflict with the state’s constitutional guarantees for a healthy environment.
Flimsy As Paper Straws
The Montana lawsuit is being led by Our Children’s Trust, an anti-fossil fuel nonprofit that coordinates with children to launch lawsuits and administrative actions across the country in an effort to force states to stop allowing fossil fuel development.
The group’s legal actions have all been dismissed, but it continues with the efforts, leading its critics to argue the lawsuits are meant to get media attention for the activists’ cause.
The Montana case is the first of its kind to go to trial and is being closely watched in the energy world. With state and federal legislators resistant to banning fossil fuels, climate activists are hoping the courts will do what elected representatives won’t.
“They know their policies are unpopular and as flimsy as the paper straws they drink their kombucha out of,” U.S. Rep. Ryan Zinke, R-Montana, told Cowboy State Daily. “Unfortunately, they know how to weaponize the legal system at the expense of the American people.”
Meritless Action
Many other lawsuits have been launched by organizations and local governments in an effort to force oil companies to stop producing petroleum, which provides 80% of the world’s energy and is used to make thousands of products — everything from aspirin to plastics that keep food from spoiling.
These lawsuits make no mention of any of the positive benefits of fossil fuels or the negative impacts of the absence of fossil fuels. The assumption is that only negative impacts arise from their use and destroying the industry would result in net benefits to the world.
“Unfortunately, these climate activists often use children to place their agendas and political theater in the spotlight, this time using the legal system as nothing more than a tool for their meritless action,” Cassie Craven, managing partner for Longhorn Law Firm in Cheyenne, told Cowboy State Daily.
Zinke, who served as Secretary of the Department of the Interior under Donald Trump, also was critical of the organization’s tactic of using children.
“It’s upsetting that these mentally unstable activists scare kids and use them as props in their culture wars,” he said.
According to the Our Children’s Trust’s tax documents, it’s received more than $15 million in donations since 2016.
“They have more personnel than the Department of Justice,” Ryan Maue, a research meteorologist, told Cowboy State Daily.
Blaming Montana
The plaintiff’s case rests on blaming climate change for causing experiences they’ve had with wildfires, hot temperatures and floods, or making the events worse.
E&E News gave glowing profiles of each of the 16 young people in which they talked about experiences they had with bad weather. For example, Rikki Held, the lead plaintiff in the case, talks about a 2012 wildfire that burned her family’s ranch and left them without electricity for a month.
Maue said that it’s more than a stretch to blame Montana for those experiences, because even if the state were to actually eliminate all fossil fuel development, it would just import oil and natural gas from out of state.
“Montana is still going to use oil and gas. They're just not going to extract it locally. They're going to get it from somewhere else,” Maue said.
Held admitted to E&E News that climate change is a result of global activities, but she said that the state of Montana has to take responsibility for its part, presumably by not allowing any oil and gas development. How that would have stopped the wildfire in 2012, Held doesn’t say.
According to a study published in February, U.S. greenhouse gas emissions haven’t increased since about 2005. Meanwhile, China and India have rapidly increased theirs.
Attribution Science
Maue said there’s also no evidence linking any individual wildfire or other weather event to climate change.
Instead, the plaintiffs create that link with what’s called attribution science. It’s a field that was developed specifically for these kinds of lawsuits, he said. It estimates the probabilities that an individual weather event was made worse or more likely as a result of increased carbon dioxide in the atmosphere.
“It's not actually that climate change caused this event, or that climate change is a serious actor out there that pushes a button and produces a weather event,” Maue explained.
Attribution science is very complicated, Maue explained, and many judges aren’t always up to speed on how it all works. To help judges understand the science the climate activists are using to make their case, the activists provide training sessions.
For example, the Climate Judiciary Project, which is one program under the Environmental Law Institute, educates judges on “the impacts of climate change and the ways climate science is arising in the law.”
Maue said, besides attribution science, the case also tries to appeal to the judge’s emotions.
“The emotional testimony of the children is apparently just overwhelming,” Maue said.
Wyoming Is Likely Safe
Wyoming has no such constitutional protections for a healthy environment, so it’s unlikely any such lawsuit would happen in the Cowboy State.
This didn’t stop Our Children’s Trust from taking action in Wyoming.
In 2011, the group petitioned the Wyoming Department of Environmental Quality, demanding the agency limit carbon dioxide emissions from fossil fuels to maintain atmospheric levels at 350 parts per million. The petition argued the state, by allowing fossil fuels to be produced, was threatening the “health, well-being and survival” of children.
The department rejected the petition on the basis that Wyoming law doesn’t grant the DEQ authority to regulate greenhouse gasses.
Karen Budd-Falen, a Cheyenne attorney, told Cowboy State Daily that she couldn’t picture how a broader legal action, like that in Montana, could be launched in Wyoming.
“I can't figure out how they would have a cause of action, because you've got to show a statute or regulation to be able to have a cause of action,” Budd-Falen said.
Fundraising
Budd-Fallen also doesn’t think the Montana case will produce a lot of legal precedent that would strengthen cases in other states, should the plaintiffs be successful.
“The state of Montana’s laws are only unique to the state of Montana,” Budd-Falen said.
Should the court side with the plaintiffs, she said, it would provide emotional support to climate activists and gain them lots of positive media coverage.
This would send a message that climate activists can potentially deprive the world of fossil fuels with enough legal actions.
“In terms of raising money for more litigation and that kind of thing, there's no question that this case will have an impact,” Budd-Falen said.
