How Kids Pulled Off a Climate Sneak Attack in Montana
Chris Dorrington has been the director of the Montana Department of Environmental Quality since January 2021. In an age when wildfires are chewing up the West and searing heat is toppling records across the country, a top environmental official like Dorrington should be at least somewhat familiar with major groups working on climate—including the U.N.’s Intergovernmental Panel on Climate Change, or IPCC, the world’s leading body on climate science and projections.
But Dorrington had never heard of the IPCC until a climate lawsuit against his state by a group of young people went to trial in June. The IPCC was such an unfamiliar term to Dorrington, in fact, that he kept messing up the acronym during his testimony. In a later cross-examination, the state asked for IPCC reports to be dismissed as “hearsay.”
Last week, the judge in Held v. Montana handed down a victory for the 16 young plaintiffs, who argued that the state’s continued production of fossil fuels violated their constitutional rights. Advocates say the landmark ruling could have broad ramifications for future climate litigation. But it’s also clear that Montana was woefully unprepared to face climate science on trial.
Part of the reason this case was so unique—and one of the reasons that its outcome is so extraordinary—is that it’s the first climate case brought by young people to go to trial, and one of the rare times that a case concerning climate has actually had its day in court. That’s partially by design, says Karen Sokol, a professor at Loyola University New Orleans College of Law. Polluters, and the states that sympathize with them, have developed a heretofore reliable strategy to stop climate litigation: Get cases thrown out before they even go to trial.
“The defendants, whether they’re governments, like in this case with Montana, or private actors like fossil fuel companies—they really seem to think that they’re going to be able to get these cases dismissed on procedural grounds,” Sokol said. “There’s an overarching message that climate doesn’t belong in the courts.”
The Montana case followed this pattern. The initial suit was filed in early 2020, and the defense team—representing the state, Governor Greg Gianforte, and several state agencies—filed a number of petitions and motions over the next few years to try and gum up the process. By the time the trial began, the defense had twice attempted, and failed, to get the state Supreme Court involved to stop the trial.
Given how long Montana had to prepare, its argument in June was pretty pathetic. The state only put three people on the stand, including Dorrington, a paltry showing compared to the 21 witnesses provided by the plaintiffs. A fourth state witness—Dr. Judith Curry, a former professor at the School of Earth and Atmospheric Sciences at the Georgia Institute of Technology and a frequent critic of climate science—pulled out of the trial at the last minute.
According to Curry, who published a blog post that she calls her “post-trial statement,” the state changed legal teams at least twice in the past year. Their original witnesses, whom Curry was brought on as part of a team to replace, were “pretty subpar.” During the trial, the state’s lawyers, Curry wrote, showed they were “totally unprepared for direct and cross examination of climate science witnesses.” Curry claims she withdrew her own testimony out of concern for how the defense’s lawyers, not the plaintiffs’, would handle her questioning.
It’s not unreasonable, Sokol told me, to assume that fossil fuel sympathizers are taking notes about what happened here. In addition to the various kids’ cases, which tend to be filed against governing bodies, there are around two dozen lawsuits brought by cities, states, and counties against multiple private oil companies, which are working their way through various courts. The industry has long shared tactics to fight lawsuits; given the close relationship between some states’ attorneys general and oil and gas interests, it wouldn’t be surprising if those strategies are also making their way into state legal briefs. In the future, Sokol said, defense teams may be better prepared for an actual trial, putting on the stand deniers and skeptics like Curry who are well versed in casting doubt on climate science—and who actually know what the IPCC is.
Still, even if oil companies and their allies are taking careful notes from Montana’s flop, it might not make much difference.
“What the defendants are realizing, and are going to have to come to terms with, is that climate in the courts is no longer exceptional,” she said. “It’s going to become increasingly ordinary because that’s our reality. Courts deal with facts and reality. It’s going to become harder and harder to stop that from happening.”
And while it’s one thing for a climate skeptic to use rhetorical arguments to undermine science in a podcast interview or an appearance on Fox News, it’s quite another to try those strategies in a court of law, where evidentiary standards are much higher and cross-examination much more aggressive.
“That’s why defendants have been willing to go years and spend an incredible amount of money to keep [these cases] from getting to the merits,” Sokol said. “The information landscape has been in their control. The courtroom is designed to find the truth.”
Good News, Bad News
Ecuadorians voted Monday to stop oil drilling in Yasuní National Park, an incredibly diverse region in the Amazon that’s also home to some of the world’s last uncontacted Indigenous groups.
About 850 people are still missing, nearly two weeks after a wildfire devastated the town of Lahaina in Maui, Hawaii.
Stat of the Week
That’s how long it’s been since a tropical storm like Hilary has hit California. Factors including warmer than usual waters in the Gulf of Mexico led to this week’s historic storm.
Elsewhere in the Ecosystem
The tragedy in Hawaii this month was one that people living in Lahaina have been afraid could happen for years, Grist reports:
[David] jumped in a car with a panicked driver who drove the wrong direction, straight into the flames, where she got stuck in back-to-back traffic along the highway. David clutched the door handle to get out but it was so hot that it burned his fingers. The flames were 60 feet high and five feet away on either side of them. The cars in front of them were on fire. He yelled that they should run but he was the only one in the car who jumped out. Everyone else was frozen. He threw open the door and ran until the flames were far behind.
In the days since, he hasn’t been able to stay still. Every day he cries and keeps moving, sleeping along the road, by the park, at a friend’s and in a shelter. He can’t stop thinking about what he saw and questioning if he could’ve done more.
No one he was with that day survived—not his roommates, none of the other passengers in the car, not even the dog with whom he had been sleeping before waking up to a literal nightmare.
Read Anita Hofschneider’s full piece at Grist.
This article first appeared in Life in a Warming World, a weekly TNR newsletter authored by contributing deputy editor Molly Taft. Sign up here.
