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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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It was a curious alliance from the start. On the one hand, Donald Trump, who made antipathy toward electric vehicles a core part of his meandering rants. On the other hand, Elon Musk, the man behind the world’s largest EV company, who nonetheless put all his weight, his millions of dollars, and the power of his social network behind the Trump campaign.
With Musk standing by his side on Election Day, Trump has once again secured the presidency. His reascendance sent shock waves through the automotive world, where companies that had been lurching toward electrification with varying levels of enthusiasm were left to wonder what happens now — and what benefits Tesla may reap from having hitched itself to the winning horse.
Certainly the federal government’s stated target of 50% of U.S. new car sales being electric by 2030 is toast, and many of the actions it took in pursuit of that goal are endangered. Although Trump has softened his rhetoric against EVs since becoming buddies with Musk, it’s hard to imagine a Trump administration with any kind of ambitious electrification goal.
During his first go-round as president, Trump attacked the state of California’s ability to set its own ambitious climate-focused rules for cars. No surprise there: Because of the size of the California car market, its regulations helped to drag the entire industry toward lower-emitting vehicles and, almost inevitably, EVs. If Trump changes course and doesn’t do the same thing this time, it’ll be because his new friend at Tesla supports those rules.
The biggest question hanging over electric vehicles, however, is the fate of the Biden administration’s signature achievements in climate and EV policy, particularly the Inflation Reduction Act’s $7,500 federal consumer tax credit for electric vehicles. A Trump administration looks poised to tear down whatever it can of its predecessor’s policy. Some analysts predict it’s unlikely the entire IRA will disappear, but concede Trump would try to kill off the incentives for electric vehicles however he can.
There’s no sugar-coating it: Without the federal incentives, the state of EVs looks somewhat bleak. Knocking $7,500 off the starting price is essential to negate the cost of manufacturing expensive lithium-ion batteries and making EVs cost-competitive with ordinary combustion cars. Consider a crucial model like the new Chevy Equinox EV: Counting the federal incentive, the most basic $35,000 model could come in under the starting price of a gasoline crossover like the Toyota RAV4. Without that benefit, buyers who want to go electric will have to pay a premium to do so — the thing that’s been holding back mass electrification all along.
Musk, during his honeymoon with Trump, boasted that Tesla doesn’t need the tax credits, as if daring the president-elect to kill off the incentives. On the one hand, this is obviously false. Visit Tesla’s website and you’ll see the simplest Model 3 listed for $29,990, but this is a mirage. Take away the $7,500 in incentives and $5,000 in claimed savings versus buying gasoline, and the car actually starts at about $43,000, much further out of reach for non-wealthy buyers.
What Musk really means is that his company doesn’t need the incentives nearly as bad as other automakers do. Ford is hemorrhaging billions of dollars as it struggles to make EVs profitably. GM’s big plan to go entirely electric depended heavily on federal support. As InsideEVsnotes, the likely outcome of a Trump offensive against EVs is that the legacy car brands, faced with an unpredictable electrification roadmap as America oscillates between presidents, scale back their plans and lean back into the easy profitably of big, gas-guzzling SUVs and trucks. Such an about-face could hand Tesla the kind of EV market dominance it enjoyed four or five years ago when it sold around 75% of all electric vehicles in America.
That’s tough news for the climate-conscious Americans who want an electric vehicle built by someone not named Elon Musk. Hundreds of thousands of people, myself included, bought a Tesla during the past five or six years because it was the most practical EV for their lifestyle, only to see the company’s figurehead shift his public persona from goofy troll to Trump acolyte. It’s not uncommon now, as Democrats distance themselves from Tesla, to see Model 3s adorned with bumper stickers like the “Anti-Elon Tesla Club,” as one on a car I followed last month proclaimed. Musk’s newest vehicle, the Cybertruck, is a rolling embodiment of the man’s brand, a vehicle purpose-built to repel anyone not part of his cult of personality.
In a world where this version of Tesla retakes control of the electric car market, it becomes harder to ditch gasoline without indirectly supporting Donald Trump, by either buying a Tesla or topping off at its Superchargers. Blue voters will have some options outside of Tesla — the industry has come too far to simply evaporate because of one election. But it’s also easy to see dispirited progressives throwing up their hands and buying another carbon-spewing Subaru.
Republicans are taking over some of the most powerful institutions for crafting climate policy on Earth.
When Republicans flipped the Senate, they took the keys to three critical energy and climate-focused committees.
These are among the most powerful institutions for crafting climate policy on Earth. The Senate plays the role of gatekeeper for important legislation, as it requires a supermajority to overcome the filibuster. Hence, it’s both where many promising climate bills from the House go to die, as well as where key administrators such as the heads of the Department of Energy and the Environmental Protection Agency are vetted and confirmed.
We’ll have to wait a bit for the Senate’s new committee chairs to be officially confirmed. But Jeff Navin, co-founder at the climate change-focused government affairs firm Boundary Stone Partners, told me that since selections are usually based on seniority, in many cases it’s already clear which Republicans are poised to lead under Trump and which Democrats will assume second-in-command (known as the ranking member). Here’s what we know so far.
This committee has been famously led by Joe Manchin, the former Democrat, now Independent senator from West Virginia, who will retire at the end of this legislative session. Energy and Natural Resources has a history of bipartisan collaboration and was integral in developing many of the key provisions in the Inflation Reduction Act — and could thus play a key role in dismantling them. Overall, the committee oversees the DOE, the Department of the Interior, the U.S. Forest Service, and the Federal Energy Regulatory Commission, so it’s no small deal that its next chairman will likely be Mike Lee, the ultra-conservative Republican from Utah. That’s assuming that the committee's current ranking member, John Barrasso of Wyoming, wins his bid for Republican Senate whip, which seems very likely.
Lee opposes federal ownership of public lands, setting himself up to butt heads with Martin Heinrich, the Democrat from New Mexico and likely the committee’s next ranking member. Lee has also said that solving climate change is simply a matter of having more babies, as “problems of human imagination are not solved by more laws, they’re solved by more humans.” As Navin told me, “We've had this kind of safe space where so-called quiet climate policy could get done in the margins. And it’s not clear that that's going to continue to exist with the new leadership.”
This committee is currently chaired by Democrat Tom Carper of Delaware, who is retiring after this term. Poised to take over is the Republican’s current ranking member, Shelley Moore Capito of West Virginia. She’s been a strong advocate for continued reliance on coal and natural gas power plants, while also carving out areas of bipartisan consensus on issues such as nuclear energy, carbon capture, and infrastructure projects during her tenure on the committee. The job of the Environment and Public Works committee is in the name: It oversees the EPA, writes key pieces of environmental legislation such as the Clean Air Act and Clean Water Act, and supervises public infrastructure projects such as highways, bridges, and dams.
Navin told me that many believe the new Democratic ranking member will be Sheldon Whitehouse of Rhode Island, although to do so, he would have to step down from his perch at the Senate Budget Committee, where he is currently chair. A tireless advocate of the climate cause, Whitehouse has worked on the Environment and Public Works committee for over 15 years, and lately seems to have had a relatively productive working relationship with Capito.
This subcommittee falls under the broader Senate Appropriations Committee and is responsible for allocating funding for the DOE, various water development projects, and various other agencies such as the Nuclear Regulatory Commission.
California’s Dianne Feinstein used to chair this subcommittee until her death last year, when Democrat Patty Murray of Washington took over. Navin told me that the subcommittee’s next leader will depend on how the game of “musical chairs” in the larger Appropriations Committee shakes out. Depending on their subcommittee preferences, the chair could end up being John Kennedy of Louisiana, outgoing Senate Minority Leader Mitch McConnell of Kentucky, or Lisa Murkowski of Alaska. It’s likewise hard to say who the top Democrat will be.
Inside a wild race sparked by a solar farm in Knox County, Ohio.
The most important climate election you’ve never heard of? Your local county commissioner.
County commissioners are usually the most powerful governing individuals in a county government. As officials closer to community-level planning than, say a sitting senator, commissioners wind up on the frontlines of grassroots opposition to renewables. And increasingly, property owners that may be personally impacted by solar or wind farms in their backyards are gunning for county commissioner positions on explicitly anti-development platforms.
Take the case of newly-elected Ohio county commissioner – and Christian social media lifestyle influencer – Drenda Keesee.
In March, Keesee beat fellow Republican Thom Collier in a primary to become a GOP nominee for a commissioner seat in Knox County, Ohio. Knox, a ruby red area with very few Democratic voters, is one of the hottest battlegrounds in the war over solar energy on prime farmland and one of the riskiest counties in the country for developers, according to Heatmap Pro’s database. But Collier had expressed openness to allowing new solar to be built on a case-by-case basis, while Keesee ran on a platform focused almost exclusively on blocking solar development. Collier ultimately placed third in the primary, behind Keesee and another anti-solar candidate placing second.
Fighting solar is a personal issue for Keesee (pronounced keh-see, like “messy”). She has aggressively fought Frasier Solar – a 120 megawatt solar project in the country proposed by Open Road Renewables – getting involved in organizing against the project and regularly attending state regulator hearings. Filings she submitted to the Ohio Power Siting Board state she owns a property at least somewhat adjacent to the proposed solar farm. Based on the sheer volume of those filings this is clearly her passion project – alongside preaching and comparing gay people to Hitler.
Yesterday I spoke to Collier who told me the Frasier Solar project motivated Keesee’s candidacy. He remembered first encountering her at a community meeting – “she verbally accosted me” – and that she “decided she’d run against me because [the solar farm] was going to be next to her house.” In his view, he lost the race because excitement and money combined to produce high anti-solar turnout in a kind of local government primary that ordinarily has low campaign spending and is quite quiet. Some of that funding and activity has been well documented.
“She did it right: tons of ground troops, people from her church, people she’s close with went door-to-door, and they put out lots of propaganda. She got them stirred up that we were going to take all the farmland and turn it into solar,” he said.
Collier’s takeaway from the race was that local commissioner races are particularly vulnerable to the sorts of disinformation, campaign spending and political attacks we’re used to seeing more often in races for higher offices at the state and federal level.
“Unfortunately it has become this,” he bemoaned, “fueled by people who have little to no knowledge of what we do or how we do it. If you stir up enough stuff and you cry out loud enough and put up enough misinformation, people will start to believe it.”
Races like these are happening elsewhere in Ohio and in other states like Georgia, where opposition to a battery plant mobilized Republican primaries. As the climate world digests the federal election results and tries to work backwards from there, perhaps at least some attention will refocus on local campaigns like these.