The Daily - The Kids Take the Climate Change Fight to Court

Episode Date: June 16, 2023

This week, a historic case has landed in a Montana courtroom. A group of young environmentalists is suing the state, arguing that its embrace of fossil fuels is destroying pristine environments, upending cultural traditions and robbing young residents of a healthy future.David Gelles, a climate correspondent for The Times, explains why the case could be a turning point, and what a win in Montana would mean for the future of the climate fight.Guest: David Gelles, a climate correspondent for The New York Times.Background reading: The landmark youth climate trial, which has been more than a decade in the making, began on Monday in Montana.Sixteen young Montanans have sued their state, arguing that its support of fossil fuels violates the state Constitution.For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday.

From The New York Times, I'm Sabrina Tavernisi, and this is The Daily. 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 Gellis explains why the case could be a turning point and what a win in Montana would mean for the future of the climate fight. It's Friday, June 16th. 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. Okay, 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. Yeah. So some of my earliest memories, especially with my dad, are really, really early mornings, getting up at like the break of dawn to get out onto the prairie or some new river that my dad and I were out to discover. Lander and his brother grew up in the woods. I remember the first time I ever caught a trout with my dad. Being waist deep and chilling like 30 degree water. Way bigger than the last one. I remember shooting my first deer, going on hiking trips,

my first solo fishing trip with my friends. Fishing and hunting and really having sort of this idyllic childhood in the mountains of Montana. We get over the hill, and sure enough, there's this huge, huge male grizzly who just turns his head around, stands up on his hindquarters, looks at us. And I was scared senseless. I'd never seen a bear in the wild by that point.

And my dad just told me to enjoy it. As scared as I was, I couldn't help but feel how surreal what I was experiencing was and how special it was. Not many kids are ever going to get to see a grizzly bear, let alone in their wild native habitat, not behind bars. native habitat, not behind bars. But they say that in recent years, it's become harder and harder to enjoy their own backyard. We had an instance where it was a naturally caused wildfire that was pouring over one of the hilltops, and we could see these orange clouds projected up into the sky

along with these plumes of smoke. A few years ago, wildfires came within sight of their home. I've had instances in both in middle school and in high school where we weren't allowed to go outside at all during the day because of smoke conditions. 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. High water levels in the spring are usually an indication of really heavy runoff off the mountains, which really murks up the waters, makes trout's feeding patterns way more sporadic and unaccessible, and often puts a dent in their populations as a result of that.

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 property's 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, you know, 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 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. Are we recording on our end? We are. We're good. She's a nonprofit lawyer named Julia Olson. Hi, Julia. Hi. And she's really the architect of Held v. Montana. Tell me about Julia Olson. Hi, Julia. Hi. And she's really the architect of Held v. Montana. Tell me about Julia

Olson. Julia has been an environmental lawyer for a couple 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. It was the summer of 2006. It was very hot. And I was in Eugene, Oregon, where I live. She happened to be pregnant, and she went to the movies. It's this old church that had been converted into a little theater, and An Inconvenient Truth was playing there. An Inconvenient Truth, that movie by former Vice President Al Gore, and it changed her life. We watched the film, and I just saw play out in front of me all the destruction that was already happening with climate change, and really what was going to come next.

And I cried through the whole film, practically. And I cried through the whole film practically. After that, I gave birth to my second son and really started thinking about, okay, what I'm doing right now is not making a dent in averting climate chaos. And we need the law to do better. And as lawyers, we have to do better to bring good cases before courts. 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 does 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 U.S. Constitution and state constitutions as well. But how is the government threatening those public natural resources? Like, 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. They permit all of the fossil fuel production and transportation and combustion that is happening. The fossil fuel industry couldn't do what it does today without our governments. It just wouldn't be possible. So like, let's take fracking as an example. It was the Department of Energy of the U.S. government that did the research and

development to develop that technology for the fossil fuel industry. Billions and billions of dollars in subsidies go to make our fossil fuel energy system happen. And we have evidence going back to the 1960s where the federal government knew that if they continued to allow and promote the burning of fossil fuels, that it would cause catastrophic climate change. And she makes the argument that even with that knowledge, it has failed to change its ways. 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? Like, 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, you know, 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. How do you make that leap from the government letting the world continue apace without completely blowing up the global economy to actually suggesting that they're doing something, I don't know, nefarious or that is directly, to use your framing, in violation of the public trust?

I mean, doesn't the public trust also ensure the ability to go make money and go to the movies? Yeah, David, so I'll push back there a bit. So our cases are about the public trust. They're also about constitutional rights. And she comes back to this issue that there are central rights that we have as citizens. And those rights are threatened right now.

And when government takes actions that affirmatively threaten the lives of children, their homes, their bodies, their personal security, and their rights of equal protection under the law,

then people can go to court and bring constitutional claims. And so now it's time for the courts to get involved. Okay, 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. 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. Okay, 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. 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? Like, 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. 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. Montana citizens came to the state capitol well aware of the issues and determined to write a new constitution to better serve the state for the 1970s and the years ahead.

Montanans actually hold a constitutional convention. We are actually representatives of the people of the fine state of Montana. So with that in mind, let's put ourselves to the task of creating the very best constitution that we can get. They decide to rewrite their constitution. It is not Montana our home. It is not the world our home. Should we not have the right to protect our homes by appropriate legal proceedings against those who would defile it? 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. So many shall be in favor of the motion to adjourn, sign and die, say aye.

Aye. Opposed, no. It's so ordered. And that's when they add this language. 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. Like 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. Okay, 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? Like, 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, anytime 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. 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 off 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 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 do Julia and the kids want to change? Like 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 like the puppets of environmental renegades. And the kids will say, like, 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? 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, you know, 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. Do you have concerns that what you're trying to bite off here is just too big for any one court to chew on? No, I don't have concerns. And I sit here as a woman. And if courts hadn't been willing to take on that big question of whether someone like me was entitled to the equal protection of the law, I mean, my life would have been completely different growing up. protection of the law. I mean, my life would have been completely different growing up. 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. If courts hadn't been willing to reverse Plessy versus Ferguson and say that segregation was unconstitutional, I wouldn't want to live in that kind of world. Similarly, I don't think any of us wants to live in a world ravaged by climate change. And no politician gets to decide if our kids get to grow up in a safe climate. That's a matter of life and liberties, and it's up to our courts to judge whether we hold those rights and if our government is violating them. 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. and appeals finally made their way to trial. David, I'm thinking kind of 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. David, thank you.

Thanks so much for having me. 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. We'll be right back. 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 7-2 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 Muj Zaydi. It was edited by Paige Cowett and Lexi Diao, fact-checked by Susan Lee, contains original music by Dan Powell, Marian Lozano, and Alicia Bietube, and was engineered by Chris Wood.

Our theme music is by Jim Brunberg and Ben Landsberg of Wonderland. That's it for The Daily. I'm Sabrina Tavernisi. See you on Tuesday after the holiday.