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Unlike another prominent climate case, there’s only upside to Held v. Montana
When Lander Busse spoke to the press after closing arguments in Held v. Montana, a trailblazing youth-led climate case that wrapped on Tuesday, he sounded optimistic.
“It feels like the beginning, really,” Busse, who at 18 is one of the case’s older plaintiffs, said. “Our next step in the process is getting our decision, which we’re really optimistic about at this point. But [we’re] also hopefully starting … a trickle-down of other litigation and activism nationally that we’ve been able to spark here.”
A cynic might describe the optimism as misguided; the idea of kids suing to control their future has historically only been entertained in the world of fiction. And yet when I asked lawyers about the case, they had a very different take. Not only is it a smart case with a strong argument, they told me, but it has practically no downsides.
“I understand the skepticism,” said James May, a law professor at Delaware Law School and founder of its Global Environmental Rights Institute. “If even a year ago, you had called and asked what I thought the prospects were of a climate case going on trial like this, I would have said next to zero. But there’s no other case like it. Never has climate been put on trial like this.”
According to the Sabin Center for Climate Change Law at Columbia University, thousands of climate change-related cases have been filed in the United States. But, May told me, other than cases over administrative issues such as permitting, none of those cases made it to trial. The fact that the youth plaintiffs actually got their day in court is by itself a big deal.
Going to trial means the plaintiffs will be able to establish, in the public record, evidence about the causes and effects of climate change.
“There are two audiences,” said Rebecca Bratspies, a law professor at the City University of New York and the founding director of the Center for Urban Environmental Reform. “There’s one audience in the court, and getting a favorable ruling in court is important. But there’s also the wider context in terms of the social conversations about how to respond to the climate crisis. A decision for the plaintiffs in a very red state like Montana would be an extremely important message to the country as a whole.”
That message, it seems, is that the courts have a newfound appetite for climate cases in a way that didn’t exist before. Three weeks ago, a judge ruled that a different youth-led climate case, Juliana v. United States, could move forward after the case was amended in response to a dismissal in 2020. Both Held and Juliana are being represented by attorneys from Our Children’s Trust, an environmental group that filed similar youth-led lawsuits in every state. But the cases rest on very different legal theories.
The plaintiffs in Held v. Montana benefit from a very specific set of circumstances. In 1972, Montana held a constitutional convention that, among other things, guaranteed in the new constitution that “the state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations.”
That gives the plaintiffs strong constitutional ground to stand on, Bratspies told me.
Montana’s state government has leaned particularly hard into climate denialism: in 2011 the legislature amended the Montana Environmental Policy Act so that climate change couldn’t be factored into environmental reviews, and this May, in an attempt to render the Held lawsuit moot, it specifically added a provision to ban any consideration of greenhouse gas emissions in environmental reviews of energy projects. If Judge Kathy Seeley, who heard the arguments in Held v. Montana, rules in favor of the plaintiffs, she could say those changes were unconstitutional and that the state of Montana would have to start considering the impacts of climate change in permitting decisions.
Juliana rests on a different legal theory entirely. In that case, the plaintiffs are alleging the federal government is violating what’s known as the public trust doctrine — an idea that goes back as far as the Romans, which holds that when a state controls land, they act as a trustee and control it for the benefit of the people.
The public trust doctrine underlies the idea that the federal government manages both national waters and federal lands for the good of the people; according to Bratspies, Juliana would argue that the same idea extends to the atmosphere, and that therefore the government is neglecting its duties by not ensuring the atmosphere remains free of greenhouse gasses and therefore affected by climate change.
When litigating cases like these, there’s a constant weighing of the risks versus the rewards, and that calculus changes according to the makeup of the courts. Juliana, if it makes its way to the United States Supreme Court, would find itself in front of a conservative-majority court that as recently as last year struck a blow at the EPA’s ability to regulate climate change.
“There’s always a risk that the Supreme Court is going to do something that is sort of unprecedented and not consistent with the long-standing body of law,” Bratspies told me. “The worst-case scenario is that the plaintiffs lose in a fashion that limits legal theories moving forward, [like if] the court narrows the public trust doctrine in a fashion that says it doesn't apply to the atmosphere because the Romans didn't think about the atmosphere.”
That could have a chilling effect on other climate cases in federal courts; any federal climate lawsuits would have to find a different legal theory to rest their cases on, and a court that is willing to upend the public trust doctrine is unlikely to be sympathetic to arguments that don’t have a constitutional right to stand on. Held v Montana, being a case in state court, has no such drawbacks. The legal ramifications of a loss would be limited only to Montana, while the social impacts of the case will remain regardless of the outcome.
“Reasonable people can disagree with me, but I see nothing but positives come out of this case,” May told me. “If the plaintiffs win, it’s a first-time ruling that underscores that the courts play a role in climate rights. But even if they lose, there’s all this evidence in the record now. That could maybe inform or inspire cases elsewhere. Even in losing it would advance the conversation more than anything else that has happened.”
It could take weeks or even months for Judge Seeley to issue a ruling, and either outcome is likely to be appealed to the Montana Supreme Court, where the plaintiffs may face an even tougher fight.
“It’s sort of a Sisyphean battle,” May said. “Every time they roll the boulder up to the top of the mountain, it rolls back down to the bottom, and they have to just keep trying. But what else is there to do? They can’t vote. They don’t hold the levers of power. They’re inheriting a melting planet. There’s nothing left to do except this.”
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Plus 3 more outstanding questions about this ongoing emergency.
As Los Angeles continued to battle multiple big blazes ripping through some of the most beloved (and expensive) areas of the city on Thursday, a question lingered in the background: What caused the fires in the first place?
Though fires are less common in California during this time of the year, they aren’t unheard of. In early December 2017, power lines sparked the Thomas Fire near Ventura, California, which burned through to mid-January. At the time it was the largest fire in the state since at least the 1930s. Now it’s the ninth-largest. Although that fire was in a more rural area, it ignited for many of the same reasons we’re seeing fires this week.
Read on for everything we know so far about how the fires started.
Five major fires started during the Santa Ana wind event this week:
Officials have not made any statements about the cause of any of the fires yet.
On Thursday morning, Edward Nordskog, a retired fire investigator from the Los Angeles Sheriff’s Department, told me it was unlikely they had even begun looking into the root of the biggest and most destructive of the fires in the Pacific Palisades. “They don't start an investigation until it's safe to go into the area where the fire started, and it just hasn't been safe until probably today,” he said.
It can take years to determine the cause of a fire. Investigators did not pinpoint the cause of the Thomas Fire until March 2019, more than two years after it started.
But Nordskog doesn’t think it will take very long this time. It’s easier to narrow down the possibilities for an urban fire because there are typically both witnesses and surveillance footage, he told me. He said the most common causes of wildfires in Los Angeles are power lines and those started by unhoused people. They can also be caused by sparks from vehicles or equipment.
At about 27,000 acres burned, these fires are unlikely to make the charts for the largest in California history. But because they are burning in urban, densely populated, and expensive areas, they could be some of the most devastating. With an estimated 2,000 structures damaged so far, the Eaton and Palisades fires are likely to make the list for most destructive wildfire events in the state.
And they will certainly be at the top for costliest. The Palisades Fire has already been declared a likely contender for the most expensive wildfire in U.S. history. It has destroyed more than 1,000 structures in some of the most expensive zip codes in the country. Between that and the Eaton Fire, Accuweather estimates the damages could reach $57 billion.
While we don’t know the root causes of the ignitions, several factors came together to create perfect fire conditions in Southern California this week.
First, there’s the Santa Ana winds, an annual phenomenon in Southern California, when very dry, high-pressure air gets trapped in the Great Basin and begins escaping westward through mountain passes to lower-pressure areas along the coast. Most of the time, the wind in Los Angeles blows eastward from the ocean, but during a Santa Ana event, it changes direction, picking up speed as it rushes toward the sea.
Jon Keeley, a research scientist with the US Geological Survey and an adjunct professor at the University of California, Los Angeles told me that Santa Ana winds typically blow at maybe 30 to 40 miles per hour, while the winds this week hit upwards of 60 to 70 miles per hour. “More severe than is normal, but not unique,” he said. “We had similar severe winds in 2017 with the Thomas Fire.”
Second, Southern California is currently in the midst of extreme drought. Winter is typically a rainier season, but Los Angeles has seen less than half an inch of rain since July. That means that all the shrubland vegetation in the area is bone-dry. Again, Keeley said, this was not usual, but not unique. Some years are drier than others.
These fires were also not a question of fuel management, Keeley told me. “The fuels are not really the issue in these big fires. It's the extreme winds,” he said. “You can do prescription burning in chaparral and have essentially no impact on Santa Ana wind-driven fires.” As far as he can tell, based on information from CalFire, the Eaton Fire started on an urban street.
While it’s likely that climate change played a role in amplifying the drought, it’s hard to say how big a factor it was. Patrick Brown, a climate scientist at the Breakthrough Institute and adjunct professor at Johns Hopkins University, published a long post on X outlining the factors contributing to the fires, including a chart of historic rainfall during the winter in Los Angeles that shows oscillations between very wet and very dry years over the past eight decades. But climate change is expected to make dry years drier in Los Angeles. “The LA area is about 3°C warmer than it would be in preindustrial conditions, which (all else being equal) works to dry fuels and makes fires more intense,” Brown wrote.
And more of this week’s top renewable energy fights across the country.
1. Otsego County, Michigan – The Mitten State is proving just how hard it can be to build a solar project in wooded areas. Especially once Fox News gets involved.
2. Atlantic County, New Jersey – Opponents of offshore wind in Atlantic City are trying to undo an ordinance allowing construction of transmission cables that would connect the Atlantic Shores offshore wind project to the grid.
3. Benton County, Washington – Sorry Scout Clean Energy, but the Yakima Nation is coming for Horse Heaven.
Here’s what else we’re watching right now…
In Connecticut, officials have withdrawn from Vineyard Wind 2 — leading to the project being indefinitely shelved.
In Indiana, Invenergy just got a rejection from Marshall County for special use of agricultural lands.
In Kansas, residents in Dickinson County are filing legal action against county commissioners who approved Enel’s Hope Ridge wind project.
In Kentucky, a solar project was actually approved for once – this time for the East Kentucky Power Cooperative.
In North Carolina, Davidson County is getting a solar moratorium.
In Pennsylvania, the town of Unity rejected a solar project. Elsewhere in the state, the developer of the Newton 1 solar project is appealing their denial.
In South Carolina, a state appeals court has upheld the rejection of a 2,300 acre solar project proposed by Coastal Pine Solar.
In Washington State, Yakima County looks like it’ll keep its solar moratorium in place.
And more of this week’s top policy news around renewables.
1. Trump’s Big Promise – Our nation’s incoming president is now saying he’ll ban all wind projects on Day 1, an expansion of his previous promise to stop only offshore wind.
2. The Big Nuclear Lawsuit – Texas and Utah are suing to kill the Nuclear Regulatory Commission’s authority to license small modular reactors.
3. Biden’s parting words – The Biden administration has finished its long-awaited guidance for the IRA’s tech-neutral electricity credit (which barely changed) and hydrogen production credit.