On March 13, 2020, sixteen Montana youth (collectively Plaintiffs or Youth Plaintiffs), then between two and 18 years old, filed a complaint against the State of Montana challenging the constitutionality of the State’s fossil fuel-based state energy system, which they alleged caused and contributed to climate change in violation of their constitutional rights guaranteed under Article II, Section 3; Article II, Section 4; Article II, Section 15; Article II, Section 17; Article IX, Section 1; Article IX, Section 3 of the Montana Constitution; and the Public Trust Doctrine.
Specifically, the complaint challenged the constitutionality of certain fossil fuel-based provisions which prohibited the State and its agents from considering the impacts of greenhouse gas (GHG) emissions or climate change in their environmental reviews; and the aggregate acts the State took to implement and perpetuate a fossil fuel-based energy system.
Youth Plaintiffs asked the Court to acknowledge the [Montana Environmental Policy Act] Limitation’s contribution to the depletion and degradation of Montana’s environment and natural resources.
Ecology Expert Witnesses
Dr. Steven Running is a University Regents Professor Emeritus of Global Ecology in the College of Forestry and Conservation at the University of Montana. Running currently co-chairs the standing Committee for Earth Science and Application from Space of the National Academy of Science. In 2007, Running shared the honor of the Nobel Peace Prize as a chapter Lead Author for the 4th Assessment Report of the Intergovernmental Panel on Climate Change (IPCC).
Dr. Dan Fagre holds a Ph.D. from the University of California, Davis. He joined the National Park Service as a research scientist in 1989 and, in 1991, he became the Climate Change Research Coordinator at Glacier National Park as part of the nationwide United States Global Change Research Program. His position was transferred to the United States Geological Survey (USGS), where he served until his retirement in 2020, after which he has continued as Scientist Emeritus. He also served as a Research Ecologist at the Northern Rocky Mountain Science Center.
Dr. Jack Stanford received his Ph.D. in Freshwater Ecology at the University of Utah.He is Professor Emeritus at the Flathead Lake Biological Station (FLBS) of the University of Montana. He was the Director and Bierman Professor of Ecology at the University of Montana (1980-2016). His primary area of research is aquatic ecosystem processes, including influences of human activities.
Life and Earth Sciences Expert Witness
Dr. Cathy Whitlock is Regents Professor Emerita of Earth Sciences and a Fellow of the Montana Institute on Ecosystems at Montana State University (MSU). Whitlock was lead author of the 2017 Montana Climate Assessment, and in 2020 co-authored a state-level Montana Climate Solutions Plan and a 2021 special report of the Montana Climate Assessment entitled Climate Change and Human Health in Montana. Whitlock was also co-lead author of the 2021 Greater Yellowstone Climate Assessment.
Climate Change Expert Witnesses
Dr. Lori Byron obtained a Doctor of Medicine degree in 1984. She has been a board-certified pediatrician since 1988. Byron earned a M.S. in Energy Policy and Climate from Johns Hopkins in 2020. From 1988-2015, Byron worked with the Indian Health Service in Crow Agency, Montana, providing primary care, emergency care, and public health services to Crow Indian children. Byron now works as a pediatric hospitalist at SCL Health in Billings, Montana. Byron has decades of experience caring for children who have suffered Adverse Childhood Events (ACEs). Over the past decade, Lori Byron and her husband, Rob Byron, have made presentations on climate change and health locally, nationally, and internationally.
Dr. Lise Van Susteren is a board certified general and forensics clinical psychiatrist, in practice for thirty years. She is a Clinical Associate Professor of Psychiatry and Behavioral Sciences at George Washington University in Washington, D.C. In 2009, Van Susteren co-convened one of the first conferences on the psychological effects of climate change. In 2013, Van Susteren worked with Dr. James Hansen and other experts on a paper, Assessing “Dangerous Climate Change”: Required Reductions of Carbon Emissions to Protect Young People, Future Generations and Nature. She received the Distinguished Fellow award of the American Psychiatric Association, its highest membership honor in May 2018. Van Susteren has helped develop youth climate anxiety assessment tools, conducted research and reviewed data in assessing the mental health of young people faced with climate change.
Environmental Science Expert Witness
Michael Durglo, Jr., is a member of the Confederated Salish and Kootenai Tribes (CSKT). He has a Bachelor of Science degree in Environmental Science from Salish Kootenai College. Durglo has worked in different capacities for the CSKT for over three decades. In his current role as Head of the Tribal Preservation Department and Chairman of the Climate Change Advisory (CCAC), Durglo has worked extensively with tribal elders and youth on climate related issues.
Environmental Law Expert Witness
Anne Hedges received a B.S. in environmental policy analysis and planning from the University of California at Davis in 1988 and a Master of Environmental Law, magna cum laude, from Vermont Law School in 1993. She is Co-Director and Director of Policy and Legislative Affairs at the Montana Environmental Information Center (MEIC). She directs MEIC’s program work, including its legislative, regulatory, policy, and legal activities.
Environmental Expert Witness
Peter Erickson received a bachelor’s degree in Geology in 1998 at Carleton College, Minnesota, as well as coursework in intermediate microeconomics and macroeconomics at the University of Washington. Erickson has worked as an environmental and climate policy and technical analyst in greenhouse gas emission accounting, most recently with the Stockholm Environment Institute, an international research institution providing, in part, technical analysis to government and NGOs on the details of climate policy and emissions accounting.
Economics Expert Witness
Terry Anderson has published widely in the popular press and professional journals, including The Wall Street Journal, Christian Science Monitor, Fly Fisherman, Journal of Law and Economics, and Economic Inquiry. During his career at Montana State University, Anderson received several outstanding teaching awards and is now professor emeritus of economics. He received his B.S. from the University of Montana and earned a Ph.D. in economics from the University of Washington.
Environmental Engineering Expert Witness
Mark Jacobson obtained a M.S. in Environmental Engineering, from Stanford University. Dr. Jacobson also obtained both a M.S. and later a Ph.D. in Atmospheric Sciences from UCLA. In 1994, Jacobson became an Assistant Professor in the Department of Civil & Environmental Engineering at Stanford. Since 2007, he has been a full professor in that Department. Jacobson was a co-founder and is Director of Stanford’s Atmosphere/Energy Program, as well as a Senior Fellow at Stanford’s Precourt Institute for Energy, and Stanford’s Woods Institute for the Environment.
Discussion by the Court
CLIMATE SCIENCE AND PROJECTIONS
Steven Running provided testimony in the general areas of the climate system, including the energy balance and imbalance, the physics of GHG emissions that are driving climate change, the global carbon cycle, the global hydrologic cycle, how they control this energy imbalance, and then how human caused fossil fuel development is harming Montana’s ecosystems and hydrology while Cathy Whitlock explained how human-caused fossil fuel development and the resulting release of CO2 into the atmosphere are harming Montana’s ecosystems, water supplies, communities, and the Plaintiffs themselves. Whitlock’s testimony included projections for Montana’s future based on continuing or increasing the present rate of GHG emissions.
CLIMATE CHANGE HARMS CHILDREN AND SPECIFICALLY THE YOUTH PLAINTIFFS
Lori Byron provided testimony that climate change and the air pollution associated with it are negatively affecting children in Montana, including Youth Plaintiffs, with a strong likelihood that those impacts Will worsen in the absence of aggressive actions to mitigate climate change. Lise Van Susteren provided testimony on the physiological harms caused by climate change to Montana’s youth, including the Youth Plaintiffs, the psychological harms caused by the MEPA Limitation, and the availability of remedies to alleviate Plaintiffs’ psychological injuries. Michael Durglo brought to the table his extensive experience working with tribal elders and youth on climate related issues. The Court found their testimony informative and credible.
CLIMATE CHANGE IS ALREADY ADVERSELY AFFECTING MONTANA’S NATURAL ENVIRONMENT
Dan Fagre helped develop a national climate change research program within the National Park Service, coordinating with other scientists at national parks from Florida to Alaska. He built a research program centered on Glacier Park as a representative mountain ecosystem, engaging faculty and scientists from Montana universities and across the U.S.
Jack Stanford has published over 220 scientific papers and books on aquatic ecosystem processes, including influences of human activities.
Both Stanford and Fagre were of the opinion that anthropogenic climate change was impacting, degrading, and depleting Montana’s environment and natural resources.
The Court observed that of the approximately 146 glaciers present in Glacier National Park in 1850, only twenty-six glaciers larger than twenty-five acres remained in 2015. 82% of Glacier Park’s glaciers were gone and there had been a 70% loss of area of all glaciers. Moreover, Montana’s water resources were critically important to Youth Plaintiffs and all Montana citizens and to many people beyond the State’s borders. Anthropogenic climate change was disrupting the natural range of variation in the flow paths of Montana’s river systems.
DEFENDANTS’ ACTIONS CONTRIBUTE TO CLIMATE CHANGE AND HARM PLAINTIFFS
Anne Hedges shed light on pollution-related policy issues in Montana, emphasizing on impacts to air, water, landscapes, and climate from fossil fuels.
Peter Erickson testified about Montana’s fossil fuel consumption, extraction, and infrastructure, focusing on three categories: (1) extraction of fossil fuels; (2) processing and transportation of fossil fuels; and (3) consumption of fossil fuels by end users. For each of these categories, Erickson quantified the amount of coal, oil, and gas and translated that in units of carbon dioxide (CO2) emissions released from the fuels once they are combusted. Erickson added up all the coal, oil, and gas to determine the emissions associated with the extraction, consumption, and transportation of those fuels. In his opinion, emissions from Montana’s fossil fuel consumption, extraction, and infrastructure were globally significant quantities.
Defendants offered the testimony of Terry Anderson as an expert economist. Purporting to be based on data from the Energy Information Agency (EIA), Anderson provided extremely limited testimony in response to three questions: (1) the total greenhouse gas emissions for the world; (2) the 2020 greenhouse gas consumption emissions for the state of Montana; and (3) the 2022 greenhouse gas consumption emissions for the state of Montana.
The Court held that Anderson’s testimony was not well-supported and contained errors.
Defendants permitted three types of fossil fuel-related activities: (1) extraction of fossil fuels; (2) processing and transportation of fossil fuels; and (3) consumption of fossil fuels by end users.
Data indicated that in 2019, total annual fossil fuels consumed in Montana led to about 32 million tons of CO2 being released into the Atmosphere.
THE MEPA LIMITATION PREVENTS FULL REVIEW OF THE TECHNOLOGICALLY AND ECONOMICALLY AVAILABLE ALTERNATIVES TO FOSSIL FUEL ENERGY IN MONTANA
In this case, Mark Jacobson summarized his research related to Montana and the feasibility of transitioning Montana swiftly from fossil fuels to clean and renewable energy in all sectors by mid-century, where all energy sectors include electricity, transportation, heating/cooling, and industry.
Data indicated that it was technically and economically feasible for Montana to replace 80% of existing fossil fuel energy by 2030 and 100% by no later than 2050, but as early as 2035.
Held
The Court ruled that the MEPA Limitation deprived Plaintiffs of their constitutionally guaranteed rights. It upheld Plaintiff’s fundamental constitutional right to a clean and healthful environment, which includes climate as part of the environmental life-support system.
Key Takeaways:
Informative and credible testimony presented by experts helped the Court see that Montana has already warmed significantly more than the global average. The science is clear that there are catastrophic harms to the natural environment of Montana and Plaintiffs and future generations of the State due to anthropogenic climate change.
In terms of per capita emissions, Montana’s consumption of fossil fuels is disproportionately large and only five states have greater per capita emissions. Montana is a major emitter of [greenhouse gas] emissions in the world in absolute terms, in per person terms, and historically. The current barriers to implementing renewable energy systems are not technical or economic, but social and political. Such barriers primarily result from government policies that slow down and inhibit the transition to renewables, and laws that allow utilization of fossil fuel development and preclude a faster transition to a clean, renewable energy system.
Case Details:
| Case Caption: | Held V. State |
| Docket Number: | CDV-2020-307 |
| Court: | First Judicial District Court of Montana, Lewis and Clark County |
| Date: | August 14, 2023 |
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