Sign In or Create an Account.

By continuing, you agree to the Terms of Service and acknowledge our Privacy Policy

Politics

Why the Montana Climate Kids Can’t Lose

Unlike another prominent climate case, there’s only upside to Held v. Montana

Montana record.
Image by rawpixel.com/Heatmap Illustration

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.”

Green

You’re out of free articles.

Subscribe today to experience Heatmap’s expert analysis 
of climate change, clean energy, and sustainability.
To continue reading
Create a free account or sign in to unlock more free articles.
or
Please enter an email address
By continuing, you agree to the Terms of Service and acknowledge our Privacy Policy
Climate Tech

If Natron Couldn’t Make Batteries in the U.S., Can Anyone?

The failure of the once-promising sodium-ion manufacturer caused a chill among industry observers. But its problems may have been more its own.

An out of business battery pack.
Heatmap Illustration/Natron, Getty Images

When the promising and well funded sodium-ion battery company Natron Energy announced that it was shutting down operations a few weeks ago, early post-mortems pinned its failure on the challenge of finding a viable market for this alternate battery chemistry. Some went so far as to foreclose on the possibility of manufacturing batteries in the U.S. for the time being.

But that’s not the takeaway for many industry insiders — including some who are skeptical of sodium-ion’s market potential. Adrian Yao, for instance, is the founder of the lithium-ion battery company EnPower and current PhD student in materials science and engineering at Stanford. He authored a paper earlier this year outlining the many unresolved hurdles these batteries must clear to compete with lithium-iron-phosphate batteries, also known as LFP. A cheaper, more efficient variant on the standard lithium-ion chemistry, LFP has started to overtake the dominant lithium-ion chemistry in the electric vehicle sector, and is now the dominant technology for energy storage systems.

Keep reading...Show less
Green
Electric Vehicles

For EVs, Charging Speed Is the New Range

They may not refuel as quickly as gas cars, but it’s getting faster all the time to recharge an electric car.

A clock with lightning hands.
Heatmap Illustration/Getty Images

A family of four pulls their Hyundai Ioniq 5 into a roadside stop, plugs in, and sits down to order some food. By the time it arrives, they realize their EV has added enough charge that they can continue their journey. Instead of eating a leisurely meal, they get their grub to go and jump back in the car.

The message of this ad, which ran incessantly on some of my streaming services this summer, is a telling evolution in how EVs are marketed. The game-changing feature is not power or range, but rather charging speed, which gets the EV driver back on the road quickly rather than forcing them to find new and creative ways to kill time until the battery is ready. Marketing now frequently highlights an electric car’s ability to add a whole lot of miles in just 15 to 20 minutes of charge time.

Keep reading...Show less
Yellow
AM Briefing

Mass Firings

On the need for geoengineering, Britain’s retreat, and Biden’s energy chief

The White House.
Heatmap Illustration/Getty Images

Current conditions: Hurricane Gabrielle has strengthened into a Category 4 storm in the Atlantic, bringing hurricane conditions to the Azores before losing wind intensity over Europe • Heavy rains are whipping the eastern U.S. • Typhoon Ragasa downed more than 10,000 trees in Yangjiang, in southern China, before moving on toward Vietnam.

THE TOP FIVE

1. White House orders agencies to prepare for mass firings

The White House Office of Management and Budget directed federal agencies to prepare to reduce personnel during a potential government shutdown, targeting employees who work for programs that are not legally required to continue, Politico reported Wednesday, citing a memo from the agency.

Keep reading...Show less
Blue