Monday, August 21, 2023

#233 / Good News From Montana


News about our ongoing climate catastrophe is usually pretty easy to find. Generally speaking, we can find that news on the front page of our daily newspapers – and what we read in the newspapers is usually BAD NEWS. 

Let’s consider the loss of Lahaina. That is the kind of news we are getting used to:

In general, here's what we learn from the news: Global warming continues. Things are worse than the scientists predicted. Political and legal victories are not much evident. That's our typical daily dose. 

As it turns out, last week was just a little bit different. Besides giving us a report on the horrendous incineration of Lahaina, the newspapers provided us with a piece of GOOD NEWS!

A trial court in Montana handed down a decision that said that the health of young children in Montana is being adversely affected by global warming – and that the adverse health and related impacts being experienced by the children are caused by the historic and continuing actions of the fossil fuel industry, which has been protected by state laws. The court held that the young children being adversely impacted by the actions of the fossil fuel industry can properly sue the state, to hold the state responsible for having failed to protect the children’s constitutional right to a safe and healthy environment.

Not only that, the court held that while the legislature has tried to absolve itself from its affirmative duty to provide residents with a safe and healthy environment, the state can’t do that. The state’s treatment of the fossil fuel industry violates the state constitution. 

Rikki Held, et al. v. State of Montana is the case. Click that link for a copy of the full decision. Here are some quick points: 

  • The plaintiffs in this case were young residents of Montana – plaintiffs who were between two to eighteen years old when the complaint was filed and between five and twenty‑two years old when the decision was announced by the court on August 14, 2023.  
  • This was a trial court case. Trial court cases don’t set precedents. Only appellate and supreme court cases do that. Stand by, in other words, for what happens next. This case will almost certainly go to an appellate court, and perhaps even to the state supreme court, so this trial court decision is just a first step. What the trial court did may, or may not, survive the next level of judicial review.  
  • The court held that it had only limited power to do what the plaintiffs asked it to do, because what the court was being asked to do exceeded the court’s power under the “political questions doctrine.” The "political questions doctrine" says that the legislative branch, not the judicial branch, is where policy decisions must be made. Still, the court said it had the power to make “declaratory” judgments, even if the court’s power to issue “injunctions” (directions to governmental agencies that must be obeyed) is limited.  
  • Importantly, the court said that it was perfectly appropriate for the youth plaintiffs to bring their case directly to the court, without the need to go through any long administrative proceedings first. The so-called “exhaustion of administrative remedies” doctrine did not require the plaintiffs to spend time in administrative hearings. They have a right to appeal directly to the courts, when the plaintiffs allege that the state is depriving them of their constitutional rights. 

The court's decision in the Held case came after a full court trial. This was not a decision made on "the pleadings." During the trial, the court heard testimony from twenty-seven different witnesses. While an appellate court can reverse or modify the decision, if the appellate court finds that the trial court made a mistake on the “law,” an appellate court is bound to accept the “facts” as found by the trial court. Those will not be overturned on appeal.

The factual findings made by the court are strong and comprehensive. The court found that global warming is real, and that the fossil fuel industry is contributing to it. Global warming is causing real health impacts to the residents of Montana, and the court found that the state has failed to carry out effective efforts to discharge its affirmative duty, found in the state constitution, to provide the residents of the state with a clean and healthful environment. 

The Montana state legislature has made clear, by its legislative actions, that it wants to excuse the fossil fuel industry from requirements that would impose duties on the fossil fuel industry that could help reduce or eliminate global warming emissions. The court said that the legislature can't do that, and that this is actually unconstitutional, because of the provisions in the state constitution that guarantee residents the right to a safe and healthful environment. 

That is very "good news." Stand by for what happens next!

1 comment:

  1. Thank you Gary! You've added meat to the bones of this case seen elsewhere. I am, alas, not optimistic that it can survive the gauntlet of Trump appointed federal judges if this movement takes flight elsewhere. It's a worry that what may happen instead, is that the State constitutions are watered down to only promise a "safe environment within economic constraints" or some such. But - let's hope we prevail!


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