mixed greens

Dithering on the brink

Posted 7/12/23

Almost exactly five years ago, I wrote a hopeful column about “Juliana v. United States,” a lawsuit brought by 21 young people from all around the country, united in their belief that the …

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mixed greens

Dithering on the brink


Almost exactly five years ago, I wrote a hopeful column about “Juliana v. United States,” a lawsuit brought by 21 young people from all around the country, united in their belief that the federal government has a fiduciary responsibility to ensure a climate capable of sustaining human life, just as it has a recognized legal obligation to protect other essential public trust resources for the benefit of future generations. 

The young plaintiffs in “Juliana” argued that their constitutional rights of life, liberty and property were being violated by the federal government’s continuing policies and actions that cause climate change, and by its failure to address the climate consequences.  

 Preliminary arguments in “Juliana” were eventually heard by a three-judge panel of the Ninth District Court of Appeals based in San Francisco, and in January 2020 the case was dismissed without going to trial. Writing for the 2-1 majority, Judge Andrew Hurwitz wrote tellingly that “it is beyond the power of an Article III court to order, design, supervise, or implement the plaintiffs’ requested remedial plan. As the opinions of their experts make plain, any effective plan would necessarily require a host of complex policy decisions entrusted, for better or worse, to the wisdom and discretion of the executive and legislative branches.”  

In other words, the problem is too complicated for the courts to consider.

In an eloquent dissent, Judge Laura Staton wrote that the panel had simply thrown up its hands and shirked its judicial responsibility, citing prior cases such as Brown v. Board of Education, in which courts stepped up to address complex constitutional issues.

“No case can singlehandedly prevent the catastrophic effects of climate change predicted by the government and scientists,” she wrote. “But a federal court need not manage all of the delicate foreign relations and regulatory minutiae implicated by climate change to offer real relief, and the mere fact that this suit cannot alone halt climate change does not mean that it presents no claim suitable for judicial resolution.”

On June 20, a judge in Montana’s First Judicial District Court heard closing arguments in another climate case, the first youth-led climate lawsuit to actually make it to trial. As in “Juliana,” the young plaintiffs in “Held v. Montana” are represented by Our Children’s Trust, an Oregon-based nonprofit. Ranging in age from five to 22, these 16 young Montanans allege harm under the state’s constitution, which guarantees “a clean and healthful environment.” In particular, they have zeroed in on a state regulation that prohibits Montana’s Department of Environmental Quality (DEQ) from considering climate impacts when they grant permits for fossil fuel projects. 

Their testimony over the seven-day trial stressed the specific harms they have personally experienced as a result of the state’s relentless promotion of fossil fuel extraction, including health conditions like asthma worsened by the 2,000 wildfires reported across Montana in the summer of 2022. 

Eight expert witnesses provided specific testimony focusing on the economic, environmental and public health harms already being experienced by residents of Montana, including heat, drought and wildfire smoke. 

Montana’s defense team fumbled with the science behind some of their questions and their economic expert, brought in to refute plaintiffs’ testimony about Montana’s GHG emissions, got confused under cross-examination about the sources of his data. 

The state’s lawyers worked hard to limit the scope of the case, arguing that since the state legislature has never given the DEQ the authority to deny oil and gas permits for any reason (!), and they don’t have jurisdiction over other sectors like transportation or energy production, no remedy is available. 

On the fourth day of the trial, the state’s legal team canceled planned testimony by a climatologist who has argued that human activity is not a prime driver of climate change. She was expected to testify that the plaintiffs’ concerns about climate change are overblown, and that the amount of GHG emissions originating in Montana is so small compared to the global total that it does not affect Montana’s climate. 

In a funny-if-it-weren’t-so-sad change of tactics, the state chose instead to argue that the climate problem is actually just too big. Since the action of one state cannot completely solve the entire global climate problem, Montana is under no obligation to take action at all.  

The office of the Montana Attorney General has called the lawsuit a publicity stunt. The young plaintiffs and their legal counsel from Our Children’s Trust see it as a way toward a new legal precedent—already recognized by Pennsylvania, New York and Massachusetts—that states are obligated to protect their citizens from climate change. 

As we await the outcome of “Held v. Montana,” one thing seems pretty clear: these cases lay bare a pathetic lack of leadership from elected officials around the country. For them, the problem of climate change is simultaneously nothing to worry about and too enormous to address. The needed actions would involve a level of planning and coordination beyond their capabilities. Their regulators don’t have the authority to regulate and they’re keeping it that way. 

These ditherers should get out of the way and let more capable hands take the reins. With any luck, some of the intrepid “Juliana” alumni are just about ready to do so.

juliana vs united states, mixed greens, supreme court, climate change


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  • chris_hollenbeck

    Great summary of the sorry state of our judicial and legislative branches of government, and how their inaction makes them complicit with fossil fuel companies in this rolling catastrophe.

    Friday, July 21, 2023 Report this