Youth make the case for right to healthy environment

from Our Children’s Trust

Youth finally got the chance to speak in court, as the constitutional climate lawsuit Held v. State of Montana completed its first week of testimony June 12-16.

The lawsuit is being brought by 16 Montana youths to protect their equal rights to a healthy environment, life, dignity, and freedom.

A similar youth lawsuit, Juliana v. United States, has been delayed almost eight years after facing incessant and unprecedented efforts by the U.S. Department of Justice to delay and dismiss their case.

Juliana v. United States asserts that the government’s fossil fuel energy system and its affirmative actions that cause climate change violate the youngest generation’s constitutional rights to life, liberty, and property, as well as their rights to essential public trust resources like air and water.

The Montana youths are suing to protect their state constitutional right to a “clean and healthful environment” as well as the air, waters, wildlife and their public lands that are threatened by drought, heat, fires, smoke, and floods. They are also suing to have their rights to individual dignity and equality enforced under the Montana Constitution.

The youth plaintiffs do not seek money. They are asking the courts to declare that fossil fuel energy policies and actions violate young people’s constitutional rights.

Here’s a recap of the historic first week of testimony.

Monday, June 12

Following the opening statement by Roger Sullivan with McGarvey Law, Judge Seeley heard testimony from Mae Nan Ellingson and Dr. Steven Running.

Mae Nan Ellingson was the youngest delegate at the time of the 1972 Montana Constitutional Convention. She told the judge that, at the time, Montana was the only state that had a constitutionally-enshrined right to a clean and healthful climate, but now Montana’s climate is “neither clean nor healthful.”

Dr. Steven Running described the current climate destabilization caused by anthropogenic greenhouse gas emissions and the need to reduce atmospheric concentration of CO2 to 350 ppm to stabilize the climate system. Dr. Running explained how climate impacts are harmful for the youth plaintiffs and that the severity of their injuries would only get worse if Montana’s reliance on fossil fuels continues. Earth’s energy imbalance, he said, would become much worse by the end of the century, during the plaintiffs’ lifetimes.

Plaintiffs Rikki, Grace, and Eva each provided testimony. The young plaintiffs shared personal stories concerning how they are being affected by the climate crisis. For example, Rikki described working outdoors on her family’s ranch in extreme heat and smoke. Grace talked about playing soccer in high school, including how “a lot of practices were smoked out.” Eva shared her experience filling sandbags for seven hours during severe flooding of the Yellowstone River near her home.

However, in spite of these emotional stories about how they are being harmed by climate change, the plaintiffs still expressed optimism for the future and explained how a successful outcome in the case would give them hope for the future.

Tuesday, June 13

Tuesday morning kicked off with Judge Seeley hearing testimony from Dr. Cathy Whitlock, an earth scientist and professor at Montana State University, who is an expert in environmental change and paleoclimatology and was a lead author of the 2017 Montana Climate Assessment.

“Montana has warmed more over the last century than other states,” she stated. “It is because of our high elevations, which tend to warm faster. We do not have the moderating effects of coastal states.”

Next up was plaintiff Mica K., who spoke of his love for outdoor activities, especially running. He was recently diagnosed with asthma and is especially vulnerable to wildfire smoke. “I hope people try to make a difference and I hope the state of Montana can change its ways on fossil fuels,” he said.

Following Mica was another expert, Dr. Dan Fagre, a 30-year employee of the Department of Interior. Dr. Fagre spoke about Glacier National Park, and the melting of glaciers in the park due to climate change. He explained that Montana’s glaciers have existed for 7,000 years, yet many would be gone within the plaintiffs’ lifetimes.

When Dr. Fagre’s testimony concluded, plaintiff Badge B. took the stand. Badge shared his love for Montana’s beauty and how he enjoys rafting, hunting, fishing, and hiking. He described wildfires threatening his family’s home, and how wildfire smoke means not being able to go outside. He called dealing with climate change “a now-or-never situation.”

Closing out Tuesday was Dr. Lori Byron, a Montana pediatrician, who discussed the impacts of climate change on the physical health of children. Dr. Byron explained that children are more vulnerable to anthropogenic climate change, describing how the health of the youth plaintiffs is already being harmed in Montana.

Wednesday, June 14

Montana pediatrician Dr. Lori Byron concluded her testimony Wednesday, discussing climate change-induced adverse childhood experiences and how they can cause long-term health problems such as exposure to substance abuse, physical/mental/sexual abuse, neglect, domestic violence, and more. These elements, which can create fear and anxiety in childhood, often result in health problems in adulthood.

“Wildfires, for example, instill fear that you will have to leave your home, as well as the smoke that creates a pall over your life and makes one unable to do the things you enjoy,” Dr. Byron said.

Next up was Shane Doyle, testifying on behalf of his daughters (and youth plaintiffs) Ruby and Lilian. Mr. Doyle is an expert in Indigenous issues, an enrolled member of the Crow Tribe who holds a master’s degree in Native American studies from Montana State University. Mr. Doyle described the Crow Fair, an annual week-long gathering of the Crow Tribe which has occurred every August for over a century.

The Crow Fair has long been an important cultural event for Mr. Doyle and his daughters, but over the last several years the weather has become hotter and hotter, with temperatures reaching over 100ºF, as well as torrential downpours. He described how extreme weather has impeded Crow Fair, with events being canceled or abandoned due to heat.

Mr. Doyle was followed by Michael Durglo, Jr., head of the Confederated Salish and Kootenai Tribes’ Tribal Historic Department. He provided additional testimony on the impact of the climate crisis on Indigenous communities. “As the climate has changed, the times for traditional practices have changed,” Mr. Durglo said. “There is a spiritual impact. All those non-human relatives that we rely on to feed us, to mend us as medicines – they all have a spiritual significance.”

The first plaintiff testimony on Wednesday came from Sariel, a member of the Confederated Salish and Kootenai Tribes. Sariel learned about the science behind climate change in high school, including how greenhouse gases are breaking down the ozone layer. Sariel experienced firsthand the effects of wildfire and wildfire smoke. “It is really scary seeing what you love disappear before your eyes,” she said. “This case is important.”

After Sariel, the court heard from Dr. Jack Stanford, director of the Flathead Lake Biological Station. Dr. Stanford discussed the impacts of climate change on Montana’s freshwater ecosystems and the connectivity of climate, hydrology, geomorphology, and ecology in those ecosystems. When asked to comment on how climate change affects freshwater ecosystems: “It’s already happening, it’s a fact, not only for our plaintiffs, but for all of us.”

Plaintiff Taleah was next to provide testimony, noting that as she grew older, she noticed that wildfires and smoke have become much more pervasive. She was employed training and caring for horses, but due to smoky conditions, her work was limited, causing her loss of income.

Closing out the day Wednesday was plaintiff Georgi, a competitive Nordic skier, who trains year-round. Wildfire smoke was so bad in the summer of 2021, Georgi was forced to train indoors. She recounted looking out the window and barely seeing the buildings across the street for all the smoke.

Thursday, June 15

Youth plaintiff Kian T., 18, was first to take the stand on Thursday. He described trying to play soccer outdoors in excessive heat. “I have had many, many soccer practices canceled for smoke and heat,” he said. “Playing soccer on turf in the heat is miserable. Imagine your feet are boiling in your cleats, burning every single step you take on the field. It burns you out.”

The next witness was Anne Hedges, Director of Policy and Legislative Affairs at the Montana Environmental Information Center. She provided testimony on the actions of the state government to authorize fossil fuel activities, describing the state’s knowledge of the dangers posed by fossil fuels and climate change, as well as specific state policies prohibiting the consideration of greenhouse gases in environmental reviews.

“If this court declared these anti-climate change analysis laws unconstitutional, it would make a profound difference to mitigate the harm of greenhouse gas emissions,” she said. Asked whether the state had ever denied a permit for a fossil fuel-related project, she responded: “Not to my knowledge.”

Claire V., 20, testified Thursday afternoon. Asked what winning this lawsuit would mean to her, she said it would be an affirmation that the legal system works the way it’s supposed to. In describing some of her own experiences with climate change, Claire said, “When I think about summer, I think about smoke. It sounds like a dystopian movie, but it’s real life.” She said she found the prospect of a smoke-free summer unimaginable.

The last witness Thursday was Peter Erickson, a climate change policy researcher for the Stockholm Environment Institute in Seattle, Washington. He provided expert testimony on Montana’s contribution to global greenhouse gas emissions – via fossil fuel consumption, extraction, and infrastructure that the state of Montana permits – and how these emissions are both nationally and globally significant.

“We are at a decision point about taking action on climate change,” Mr. Erickson said. “The world community has decided we must. Montana continues to issue fossil fuel permits.”

Friday, June 16

The first witness Friday was Mark Jacobson, Director of the Atmosphere/Energy program at Stanford University. Mr. Jacobson described the technological and economical feasibility to transition Montana off of fossil fuels by 2050 and supply its energy needs via water, wind, and solar (WWS). The primary barrier, he stated, was the lack of government direction to move energy policy towards WWS, as well as current government policies that continue to favor a fossil fuel-based energy system.

The next witness was plaintiff Olivia V., who shared some of her artwork incorporating climate change as a major theme, including a piece called “Gaia” about the despair climate change makes her feel. She also described what it was like experiencing asthma and severe allergies during the smoky summer months when she often doesn’t go outside due to debilitating symptoms like swelling and redness.

“The state of Montana has an obligation to uphold our right to a clean and healthful environment,” she said. “I know they have the power to do this. I know it.”

Following Olivia, Dr. Lise Van Susteren, a psychiatrist and expert on how the climate crisis affects the physical and mental health of youth, took the stand. She described how children are more susceptible to the impacts of climate change due to unique characteristics like their dependency on adults, their brains and bodies still not being fully developed, and an increased exposure and cumulative toll of trauma.

“The kids have told you this week very compellingly how their world is different,” she said. “They are very aware of something called intergenerational injustices. Their world is spinning out of their control and they have first-hand experience.”

The last witness of the day was plaintiff Lander. He recounted some of earliest memories of going hunting and fishing with his father in the Montana wilderness, a family tradition for generations. “It just really cemented for me what I know as home and what I love and value so much,” he said.

Lander then discussed how wildfires and smoke affect his family. “All of this, particularly the smoke, is just a really weird post-apocalyptic experience for me,” he said. “My family spends so much of our time outside, and it ends up taking a pretty big toll on our happiness and comfort.”

The trial enters its second week June 19.

The 16 youth plaintiffs in this case are represented by attorneys with Eugene nonprofit Our Children’s Trust, the Western Environmental Law Center, and the Montana law firm McGarvey Law.

Our Children’s Trust in Eugene is the world’s only nonprofit public interest law firm that exclusively provides strategic, campaign based legal services to youth from diverse backgrounds to secure their legal rights to a safe climate. The law firm works to protect the Earth’s climate system for present and future generations by representing young people in global legal efforts to secure their binding and enforceable legal rights to a healthy atmosphere and safe climate, based on the best available science.

Globally, Our Children’s Trust support youth-led climate cases in front of national courts, regional human rights courts, and UN bodies.

The nonprofit law firm also represents 21 youth in the case Juliana v. United States. On June 1, U.S. District Court Judge Ann Aiken, of the U.S. District Court in Oregon, granted the young plaintiffs’ motion to amend their complaint, putting their case back on track to trial. The youth plaintiffs, including 11 Black, Brown, and Indigenous youth, have waited almost eight years to be heard in court.

For more and to get involved, see the Our Children’s Trust website.