The Kids Take the Climate Change Fight to Court

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From “The New York Times,” I’m Sabrina Tavernise, and this is “The Daily.”

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As the movement to fight climate change gathers momentum, it has begun to make its way into a new battleground — courts. This week, a historic case has landed in a Montana courtroom, where a group of young environmentalists is suing the state. Today, my colleague David Gelles explains why the case could be a turning point, and what a win in Montana would mean for the future of the climate fight.

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It’s Friday, June 16.

David, welcome back to the show.

Thanks.

So there’s a trial happening right now in Montana, and it’s a landmark trial involving climate change. Why does this case matter?

It is a pretty remarkable moment. I cover climate change, and I’ve written about international efforts to change policy across the globe. And a part of this is a really big move to get the courts involved.

People are suing states and federal governments and companies. Most of those efforts have been proceeding slowly. But now this case in Montana has actually gone to trial, and it’s the first time people have really had the chance to see if they can hold the government accountable for climate change. It’s called Held v Montana.

OK. So tell me about this case, Held v Montana.

Well, a few years ago, a group of 16 young people from the state of Montana sued the state for its role in supporting the fossil fuel industry and contributing to climate change. And I’ve been talking to these kids. And they tell a really vivid story about how the warming planet is actually negatively impacting their lives.

And I spent some time walking in the woods outside Glacier National Park with one of the plaintiffs who was 15 at the time the case was filed, but is now 18. And his name is Lander Bussey.

Lander and his brother grew up in the woods.

Fishing and hunting and really having this idyllic childhood in the mountains of Montana.

But they say that in recent years, it’s become harder and harder to enjoy their own backyard.

A few years ago, wildfires came within sight of their home.

Wildfires are getting more intense. Smoke days are forcing them indoors. They say the hiking trails that they use have been washed away by torrential downpours with more and more frequency as the weather gets more extreme.

And when I spoke to many of the plaintiffs, including Lander, they say that the landscape that they’ve come to cherish is changing in front of their eyes. And it’s not just aesthetics here.

They talk about their health and the fact that their asthma is getting worse. Some of them hunt and fish for food as part of their traditional cultures. They say that’s getting harder to do. They say their properties are being threatened by wildfires. And in their contention, that’s the direct result of climate change, and they’re asking their government to do something about it.

So their argument isn’t just, I can’t go outside and have a nice time enjoying nature. They’re actually saying, hey, this is messing up our lives, our health.

They’re saying that it’s actually changing fundamentally what it means to be a kid in Montana.

So what’s the actual legal argument here? Because it’s like, yeah, it doesn’t seem very fair, especially for kids who, of course, aren’t at all responsible for climate change. But how do you actually assign legal blame to your state government?

Well, that was really at the crux of the problem for these plaintiffs and plaintiffs in similar climate cases all around the world. But it turns out there’s one woman who’s been working on that problem for a long time now.

She’s a nonprofit lawyer named Julia Olson.

And she’s really the architect of Held v Montana.

Tell me about Julia Olson.

Julia has been an environmental lawyer for a couple of decades now. And when I spoke to her, she described a specific moment when her work on climate change really came into focus for her.

She happened to be pregnant, and she went to the movies.

“An Inconvenient Truth,” that movie by former Vice President Al Gore. And it changed her life.

Julia realizes that she’s not going to be able to have an impact on an issue like this by pursuing piecemeal cases here and there, as she had been doing. Instead, she decides she is going to need a real overarching approach to take on what she is now very clear is the defining issue of her lifetime, as she believes.

What did she come up with?

Well, very soon after that, she learns about a legal theory —

The public trust doctrine.

— the public trust doctrine. The idea goes that the government, whether it’s the federal government or the state government, actually has a responsibility to take care of the natural resources — things like the land, the environment — and ensure that those are protected for current and future generations. And the language in constitutions is often quite broad.

The federal Constitution guarantees the right to life, liberty, and property. It guarantees equal protection under the law. And Julia sees an opening to apply this new theory of how she can prosecute climate cases with the US Constitution and state constitutions as well.

But how is the government threatening those public natural resources? How exactly is the government responsible for climate change and not, say, for example, a fossil fuel company?

Well. It’s not the government itself that’s producing the fossil fuels. But Julia argues that the government plays a huge and important role in all sorts of other ways in supporting the industry overall.

And she makes the argument that, even with that knowledge, it has failed to change its ways.

So her argument is that the government not only created an environment for fossil fuel industries to thrive, they knew that doing so would contribute to climate change.

That’s the case she’s making.

But David, just to push back for a second, though, how fair is it to hold governments accountable for this? Climate change is so complicated, right? I mean, how do you zero in on the government in particular as being the cause of these effects, when everything they did is just basically capitalism in a way and making it possible for our economy to function?

It’s a question that’s right at the heart of the cases she’s bringing. And I asked her this very question.

And she comes back to this issue that there are central rights that we have as citizens.

OK. So she lands on this argument. What does she do with it?

So in 2010, Julia founds an organization called Our Children’s Trust, which is a nonprofit law firm that starts to bring constitutional climate cases on behalf of children. And she really decides to focus on children because, she says, they don’t have the ability to vote. They don’t have representation, and they are going to be the ones that experience climate change most intensely in the generations ahead. And pretty quickly, our Children’s Trust goes on and files cases in all 50 states and sues the federal government as well.

How do they go?

Well, most of them don’t get very far.

They face opposition in the courtroom. Some of them are struck down. And so it’s not looking great for a little bit there. But then they find a new approach, and it has everything to do with the state of Montana, specifically.

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We’ll be right back.

David, you just told us about the lawyer behind this lawsuit in Montana. But what makes Montana the place where a case like this could go to trial?

Well, the Montana State Constitution actually has very specific language in it that guarantees residents the right to a clean and healthful environment, and says it’s the responsibility of the government and citizens to protect that pristine natural environment for present and future generations.

OK. So this is not an implied right. It’s actually right there in black and white, like, plainly in the text of the state constitution.

Yeah. Julia had been making a sort of broader argument about the public trust and the responsibility of governments to take care of their people. But in Montana, she didn’t need to do all this work interpreting other vague language. It was right there in the law.

And in fact, there are several other states that already have similar language in their state constitutions — Massachusetts, Rhode Island, Pennsylvania, Hawaii. New York added similar language to its constitution last year. And around the country, there are even other states that are trying to get similar language added, even today. And for Julia and her team, this language was really the key to unlocking a strategy that allowed them to get this case to trial.

So why did Montana have this in their state Constitution? How did that happen?

Well, here we need to rewind. Back in the late 19th century, the mining industry became big business in Montana. And it started exerting its influence not only over the state’s economy, but over the government as well. One historian I talked to called Montana a corporate colony.

Wow.

And when the Montana State Constitution is actually first written, the language in it is almost entirely deferential to mining interests and to energy interests.

I mean, corporate colony is a pretty strong phrase.

Yeah. And then in the early 1970s, in the throes of that late ‘60s, early ‘70s environmental movement —

Montanans actually hold a constitutional convention.

They decide to rewrite their constitution.

And a big part of why they do that is to take back control of their state government from what they see as the undue excessive influence of the mining community and the fossil fuel industry.

And that’s when they add this language.

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So when this language was added, it was really before there was a widespread acceptance and understanding of what was causing climate change. The language was added to the Montana constitution really in response to the mining industry and how much pollution there was in the state because of it.

But the language was still pretty clear — the government, it now said, had a responsibility to give its citizens a clean and healthful environment. But over the last few decades, Montana’s fossil fuel production has soared. Montana is the nation’s fifth-largest producer of coal and the 12th-largest producer of oil. And the state’s government has done a lot to support that development.

And what kinds of supports, David? Like, the kind that Julia was talking about?

Yeah, permits, subsidies. The state’s Republican government is currently very, very pro-fossil fuels. And in fact, they recently passed a law that bars the state’s permitting board from considering climate and emissions when deciding whether to allow a new project to get built.

Wow, it can’t even take climate change into account at all. That just seems pretty crazy.

That’s just the kind of thing that the plaintiffs and Julia say is the problem with the way the state is operating right now.

OK, so I’m guessing that the state government in Montana does not love this lawsuit.

Not at all. It has responded incredibly strongly to this. And since 2020, when this case was filed — and it was actually a Democrat who was governor. The state has tried to fight it every step of the way.

And what’s the state’s argument? What’s its defense against Julia’s case?

Well, we will see the defense play out at trial. But what the state is contending is that even if fossil fuels are contributing to climate change at large, it’s almost impossible to say that the specific emissions caused by fossil fuels in Montana are specifically responsible for the effects that they are seeing in that state and thus specifically responsible for the damages that the children say that they are incurring.

So this is interesting. I mean, on the one hand, we know that without a doubt, any time you burn fossil fuels, it makes climate change worse. But on the other hand, you can’t pin climate change on one single factory or one single mine or even one single state.

And this is one of the reasons why so many people are watching this case so closely. You can’t say that the emissions from one particular coal plant in Montana made a forest fire in Glacier National Park that much worse. On the other hand, we know that all of this is adding up and warming our planets right now.

And critically, so far, the courts have not allowed that argument as a way to let the state of the hook here. We’re also going to see at this trial the real introduction of what’s known as attribution science. That is the growing body of scientific work that, more compellingly and more specifically, than has been possible, even as recently as a couple of years ago, make direct connections, and say that the fact that global temperatures have warmed roughly 1.2 degrees Celsius above pre-industrial levels are, in fact, making fires more severe; are, in fact making glaciers melt more. And we expect to see some of that attribution science on display in the courtroom this week.

So what exactly did Julia and the kids want to change? If they win, what do they imagine will happen?

Well, they’re not seeking money. And that’s important because a lot of people are contending that these kids who have decided to be a part of this case are somehow the puppets of environmental renegades. And the kids will say, we’re not asking for anything that’s going to benefit us specifically.

Instead, what they want is declaratory relief. They just want the state to acknowledge that the burning of fossil fuels in the state and the permitting and subsidizing of things like oil and coal and gas is making the climate crisis worse.

More specifically, though, they are potentially going to seek changes in state law. Remember the law I mentioned earlier about how the state can no longer consider climate change when approving a major project?

Right.

That’s the kind of thing that could potentially be repealed if the children and Julia win here. And from a purely symbolic standpoint, it would be one of the first times that a state government is saying, yeah, we bear some responsibility here. And that opens up a whole can of worms for what that means down the road, what it means for other states, and what kind of precedent it might set.

And because the judge surely knows it would open that big can of worms, I wonder if it feels unlikely that Julia and these kids win?

Yeah, it would be unprecedented, and it’s something I asked Julia about.

She placed this case in the context of other big social movements in our country’s history — things like women’s rights and civil rights.

One of the reasons this case is so interesting is that behind it is an absolute avalanche of other cases that are making similar arguments in different ways, and trying to hold not only governments accountable, but specific companies as well. And so this is not the last time we’re going to be hearing about climate litigation. These cases, after fits and starts and dismissals and appeals. Finally made their way to trial

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David, I’m thinking what would it mean if they make this big justice argument in front of this judge in this state that wrote the idea of a right to a clean environment into their constitution? What will that mean for this broader effort of looking for a solution to climate change through the courts?

Well, I think it would call into question the effectiveness of this language that we’re starting to see in more and more constitutions around the country. And even more broadly than that, I think it would raise real questions about just how effective the courts can really be as part of the overall solution set to addressing the climate crisis right now.

That maybe courts aren’t such a fruitful avenue for activists?

Yeah. We talk a lot about precedent and how cases can set precedent. And a defeat here would set a pretty troubling precedent for this legal strategy around the world.

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David, thank you.

Thanks so much for having me.

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All this week, the judge in Montana has been hearing testimony from the young activists, as well as pediatricians and biologists. Next week, the state is expected to mount its defense.

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We’ll be right back.

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Here’s what else you should know today. On Thursday, the Supreme Court handed a victory to Native American tribes, upholding a law aimed at keeping Native American children with their tribes and traditions. The case pitted a white couple from Texas against five tribes as they battled over the adoption of a Native American child.

The Indian Child Welfare Act of 1978 gives preference to Native families. The couple argued that the act discriminated against non-Native families because it hinged on placement based on race. But the court ruled 7 to 2 in favor of the tribes, upholding the law that was enacted to address the legacy of abuse of Native American children who were being separated from their families and placed in non-Native homes.

And a federal grand jury has indicted Jack Teixeira, the 21-year-old Massachusetts Air National Guardsman who posted dozens of sensitive documents on social media, on six counts of retaining and transmitting classified national defense information. The indictment paves the way for a trial, stemming from one of the most damaging national security leaks in recent history. If convicted, he could face up to 60 years in prison.

Today’s episode was produced by Will Reed and Mary Wilson, with help from Stella Tan, and Mooj Zadie. It was edited by Paige Cowett and Lexi Diao; fact-checked by Susan Lee, contains original music by Dan Powell, Marion Lozano and Elisheba Ittoop, and was engineered by Chris Wood. Our theme music is by Jim Brunberg and Ben Landsverk of Wonderly.

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That’s it for “The Daily.” I’m Sabrina Tavernise. See you on Tuesday after the holiday.