Young people move historic climate action against Montana – 03/31/2023 – Environment

On a snowy Sunday in March, Badge and Lander Busse went out into the woods behind their house, followed by their three hounds. It was in these woods, next to Glacier National Park, that the two teenagers learned to hunt, fish, clean a deer carcass, and shoot lead from gray partridges.

It was also there that the Busse brothers began to pay attention to the signs of a planet in the process of accelerating warming: the torrential rains that eroded the forest trails, the fires that ravaged the land and produced smoke so thick that they were forced to stay indoors. From home.

Watching the wild nature they loved succumb to the effects of climate change infuriated the Busse brothers, and three years ago they decided to take action. Along with 14 other local teenagers and a legal environmental group, they filed a lawsuit against the state.

In their complaint, filed in 2020, the youth activists departed from a clause in the Montana Constitution that guarantees state residents “the right to a clean and healthy environment” and stipulates that the state and individuals are responsible for conserving and enhancing the environment “for present and future generations”.

They argue that, in view of these words, state support for fossil fuels such as coal, oil and gas is unconstitutional, because the resulting pollution is dangerously warming the planet and has deprived them of a healthy environment.

It’s a concise but untested legal challenge to a state government that in recent years has depicted a sharp rightward shift and is aggressively defending itself. The trial will begin on June 12 in the state capital, Helena. According to jurists, it is the first involving a constitutional climate action.

“To date there have been almost no trials involving climate change,” said Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia University School of Law. “This is the first one that will discuss the merits of climate change, what needs to be done and how the state may have to modify its action.”

The origins of the action go back almost a decade. In 2011, a non-profit organization called Our Children’s Trust asked the Montana Supreme Court to rule that the state has a duty to combat climate change. The Court refused to take a position, telling the group, in practice, to start with the lower courts.

So Our Children’s Trust lawyers began to build their case. They worked with the environmental community to identify potential claimants. They cataloged the ways in which climate change was affecting the state. And they documented the broad support given by the state to the fossil fuel industry, which includes issuing permits, subsidies and favorable regulations.

Largely funded by foundations, Our Children’s Trust has sued the governments of all 50 US states on behalf of young people. The organization is behind the Juliana v. United States lawsuit, a closely watched climate lawsuit pending in a district court in Oregon that pits young people against the federal government. But the Held v. Montana lawsuit is the first of those lawsuits to be heading to trial.

“We are making a huge effort to bring the young generation to court and do so from a human rights perspective,” said lawyer Julia Olson, founder of The Children’s Trust.

In 2020, Olson again took aim against the Montana government, this time with the help of a larger legal team, large numbers of experts, and 16 plaintiffs, including the Busse brothers.

The oldest plaintiff, Rikki Held, was 18 at the time and had grown up on a 28,000-square-foot ranch in Broadus where, due to increasingly unpredictable weather conditions, her family was having difficulty supplying water to the property. The youngest plaintiff was Nathaniel K, a 2-year-old boy from Montana City with breathing problems whose health is threatened by wildfires made worse by climate change, according to his parents.

Sariel Sandoval was 17 when the lawsuit was filed. She grew up on the Flathead Indian Reservation in the upstate. She commented that the huckleberries (a kind of blueberry) that she used to gather in the summer are now harder to find and that the fact that there is less snow in the winter has caused the water level in Flathead Lake to drop, jeopardizing the fishing practiced by her tribe.

“When you have this intimate relationship with the earth, it’s hard to see how climate change is affecting it, the harm being done,” she commented.

In the case of the Busse brothers, rebelling against authority runs in the family. Their father, Ryan Busse, is a former executive at a firearms manufacturer who became disillusioned with the industry and went on to challenge the National Rifle Association. And although their eighth-grade biology teacher had questioned the science behind climate change in class, Badge and Lander have come to understand that a planet being heated by fossil fuels is bad news for their backyard.

“Many people in this state, including us, live life without stopping to think too much about the future. The wild fauna and flora, the land and nature are part of who we are,” said Lander Busse, who is now 18, in the living room of his house, surrounded by stuffed animals hunted in the forests around him.

The plaintiffs joined a growing global movement of young people who are sounding the alarm about climate change, a movement embodied most famously by 20-year-old Swede Greta Thunberg.

But they pay a social price for their activism. “We can’t talk about the process openly without being attacked online by our schoolmates,” said Badge Busse, 15.

Even so, many of the plaintiffs, including the Busse brothers and Sariel Sandoval, are expected to testify at the trial.

In response to the lawsuit, the state challenged the overwhelming scientific consensus that burning fossil fuels causes climate change and denied that Montana has been suffering from increasingly harsh weather linked to rising temperatures.

The offices of Montana Governor Greg Gianforte and Attorney General Austin Knudsen, both Republicans, declined to comment on the case. “To combat climate change we need to focus our attention on American invention and creativity, not broad and expensive government policy,” said the governor’s spokeswoman, Kaitlin Price. “The United States needs to have an inclusive energy policy, like Montana, to regain its independence and energy security.”

It was in 1972 that Montana’s state constitution was amended to include a provision guaranteeing citizens “the right to a clean and healthy environment.” This was done in a constitutional convention in which revisions were adopted to reduce the influence of the copper and coal industries, which since the 1880s had exerted a strong influence on state policy. Drafted in 1889, the original Constitution was heavily influenced by executives in the mining industry, and the resulting laws favored these industrial interests.

Regardless of who wins the lawsuit, the outcome will likely be appealed and taken to the state Supreme Court. And even if the Montana teens win the appeal, they don’t foresee immediate changes.

Instead, they seek “declaratory relief”: they want the judge to recognize that fossil fuels are causing pollution and warming the planet, and to declare state support for the industry unconstitutional.

Such a conclusion would serve another important purpose. At the moment there is virtually no case law declaring that the burning of fossil fuels is rapidly and dangerously warming the planet. A victory for Montana’s youth would help lay the groundwork for other climate lawsuits. The Pennsylvania and New York Constitutions include similar guarantees of a healthy environment, and there is a group trying to include these guarantees in all state constitutions.

“It could establish a lot of widely applicable facts and principles,” said Gerrard of Columbia University.

If the state’s energy policy is found to be unconstitutional, Montana regulators may be required to take climate change into account when approving industrial projects.

“When the lawsuit goes to trial in June, plaintiffs and our experts will have the opportunity to testify in open court, tell the story of what the government is doing and how it’s impacting Montana’s environment,” said Nate Bellinger , lead counsel for Our Children’s Trust in the lawsuit. “The truth still matters in a court of law.”

^{Translated by Clara Allain}