Montana begins (and ends) defense in landmark climate change trial
(CN) — A landmark climate change trial in Montana entered its second week on Monday, after 16 young plaintiffs, ages 5 to 22, sued in an effort to force the state to take steps to cut greenhouse gas emissions.
The state of Montana began — and rested — its defense that same day, having called just three witnesses.
The suit, believed to be the first of its kind in the nation to go to trial, is premised on a clause in Montana's constitution.
That clause, Article IX, reads, "The state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations." The lawsuit argues that House Bill 971 — a state law recently signed by Republican Governor Greg Gianforte, which prohibits regulators from taking greenhouse gas emissions into account when approving a new project — violates Article IX.
Last week, most of the young plaintiffs testified about how global warming and its effects (wildfires, drought and flooding among them) had affected their quality of life.
It had harmed their ability to enjoy the outdoors, threatened their family's businesses, and made them feel uncertain about the future, according to the lawsuit. An expert backed them up, testifying that global warming disproportionately affects children, both physically and psychologically.
The defense's first witness against these claims was Chris Dorrington, director of Montana's Department of Environmental Quality. The department is one of several defendants in the case, along with the state itself, the governor, two other departments and the public service commission.
In court, Dorrington said he admired the 16 young plaintiffs. "I admire their grit and determination, and how diligently they've pursued an issue that’s important to them," he said.
Throughout the bench trial, the defense has sought to minimize Montana's role in the global climate change crisis. Cutting emissions in Montana, they've argued, will make little difference on the scale of global climate change.
The thrust of Dorrington's testimony was that the department he heads, often referred to as DEQ, shouldn't be a defendant in the case, because all it does is follow the laws set by the legislature.
"DEQ implements the law," Dorrington testified. "We are not the ones that create the law."
On cross-examination, Dorrington was asked by the plaintiffs' attorney if he was familiar with the Intergovernmental Panel on Climate Change, or IPPC, a body of the United Nations set up to study and advance knowledge of climate change.
"I attended this trial last week, when there was testimony relevant to IPCC," he said. "Prior to that, I wasn't familiar, and certainly not deeply familiar with its role or its work." It was a startling admission from one of the state's top environmental officials.
Montana ranks fifth in coal production among all the states in the country, as well as 12th in oil production. Last week, an expert witness for the plaintiffs — Anne Hedges of the Montana Environmental Information Center — testified that DEQ had never once denied a fossil fuel permit application like those sought by power plants and coal mining operations.
Sonja Nowakowski, another DEQ official testifying on behalf of Montana, denied that assertion on Monday.
"I disagree, and I take some offense at the insinuation that folks at DEQ are simply putting their stamp of approval on any application that rolls in the door," she said. "There isn't a single person who works at DEQ who doesn't care deeply about the environment and care deeply about the laws."
Nowakowski did not cite an example of a fossil fuel project that DEQ had rejected. Both she and Dorrington testified that DEQ had little authority to reject projects as long as they met certain requirements set by law.
The defense's third and last witness was Terry Anderson, an economist and senior fellow at the Hoover Institution, a California think tank associated with conservative and Republican figures. Anderson testified for less than ten minutes, during which he stated that in 2022, Montana was responsible for only 0.08% of the world's total greenhouse gas emissions.
Upon cross-examination, though, Anderson couldn't say for sure where he'd gotten his numbers. They were from a "reliable website," he asserted, probably the International Energy Agency's site.
The plaintiffs moved to strike Anderson's testimony, but Lewis and Clark County Judge Kathy Seeley, who is presiding over the case, declined.
"I'm not going to strike the testimony," Judge Seeley said, "but you’ve definitely raised some questions about how he got the numbers."
Defense attorneys asked Seeley for a directed verdict for all defendants in the case besides DEQ, including Governor Gianforte, on the argument that the plaintiffs had not presented any evidence that they were responsible for the so-called "climate change exception." Such a ruling could prevent a jury for deliberating on all claims.
An attorney for the plaintiffs pushed back on this request. "We've heard that the Governor sets policy," that attorney said — and when it came to agencies like DEQ, "we've heard, in terms of transport and otherwise, [that they] are responsible for greenhouse gases and carbon dioxide emissions."
Judge Seeley said she would consider the motion after the trial is completed — which, in a surprising turn of events, is now scheduled to be on Tuesday after Montana's short defense.
The bench trial was originally expected to last 10 days, but will now see each side giving 10-minute closing arguments starting at noon tomorrow. It is unclear how long Judge Seeley will take to issue a verdict.