Yesterday, the groundbreaking climate trail, Held v. Montana, came to a close. This trial was the first of its kind to make it to court, and while the results of the lawsuit could take weeks to emerge, it represents a shift in the way Americans are fighting against polluters and their enablers: through the legal system.
However, it also represents a way those same enablers are fighting back.
The Montana lawmakers are one of many defendants on trial in a litany of recent climate cases.
Just to name a few, in February Montana itself took the city of Portland to the stand for prohibiting fossil fuel infrastructure, Delta Airlines is on trial for over its carbon neutrality claims, environmental groups moved to sue the Biden Administration over the controversial Willow oil drilling project in March, the board of directors at the oil giant Shell was personally sued over their ‘flawed’ climate strategy, and businesses like 3M and Dupont are currently on the hook, or rather the gavel, for PFAS contamination in water.
And who could forget how in April, the Supreme Court granted a big win against oil companies as communities across Colorado, Maryland, California, Hawaii, and Rhode Island sued oil ogres like ExxonMobil for losses and damages caused by climate change.
Last week, lawyers on each side of the Held v. Montana trial presented who they believe is responsible for the climate crisis, with the youth plaintiffs arguing that in Montana specifically, officials and agencies must be held accountable for their part in exacerbating the process through fossil fuel-friendly policies, thereby violating the plaintiff’s rights to clean air, clean water, and a clean world.
Back in March, Montana passed what may be the most aggressive anti-climate law in the nation’s history, barring state agencies from even considering climate change when permitting large projects that require environmental reviews, including coal mines and power plants.
The law protects the bottom line of coal, oil, and gas companies in the Treasure State, a nickname bestowed upon Montana for the vast wealth of minerals in its mountains. Coal still supplies about half of the electricity in Montana, with the majority of the rest of the country weaning itself off.
In 2022, coal only accounted for 20% of the U.S. power generation falling steadily in recent years, as renewables surpassed coal for the first time.
Katie Myers over at the climate solutions publication Grist wrote up a poignant piece about the trial, describing the 16 youths who say they are spending their childhoods watching the world burn thanks to fossil fuel giants and the politicians both failing to mitigate the problem and, in their view, making it worse through laws like the March legislation.
These kids include brothers who love to hunt and fish, seeing the forest disappear, a toddler struggling to breathe as wildfire smoke exacerbates his asthma, an Indigenous teen watching the climate crisis take a toll on her tribe’s traditions, and Rikki Held, a rancher’s daughter leading the movement, who has seen the extreme weather, like the climate-inflamed floods that crashed through Yellowstone last year, endanger and even kill the cattle her family relies on for their livelihood.
The suit was filed in March 2020 by the Oregon nonprofit advocacy organization, Our Children’s Trust, and named after Held because, at the time, she was the only plaintiff of age at 18 years old.
However, the name of the now 22-year-old, who graduated this spring from Colorado College with a degree in environmental science, is just one of hundreds of climate cases filed in the last few years alone.
The Sabin Center for Climate Change Law at Columbia Law School and the Arnold & Porter law firm assembled both a global and U.S. Climate Change Litigation database that was first created in 2007 and relaunched a decade later to update monthly with cases across the country related to climate change.
It currently includes over 1,600 cases with links to over 10,000 case documents and requires that not only the case is brought in front of a judicial body, but is centered around a material issue with the law or a fact relating to climate change law, policy, or science. The majority of these cases are from recent years.
According to Michael Burger, executive director of the Sabin Center, via NBC News the uptick in climate cases is natural. “One way that people respond when other systems fail, when politics fail, governments fail, corporate governance fails is they go to court to try and seek redress.”
The cases in the database range from government inaction on local air pollution like the Montana youth case or challenges to the development of fossil fuel infrastructure like how the city is suing Portland for “overbroadly” attempting to transition to clean energy and “illegitimately” lower emissions by prohibiting new fossil fuel-export infrastructure in the City.
In the Montana v. Portland case, Montana is backed by several trade groups and a Washington-based fuel distributor. While a similar case brought about by the Western States Petroleum Association ultimately led to Portland strengthening its climate rules, the two Montana lawsuits — one against the state for failure in climate mitigation policy and one by the state attempting to derail other mitigation policies — represent two sides of the same coin: climate lawsuits both good and bad are taking off, especially in America.
The Columbia Law School’s Global Database currently includes over 700 cases, excluding all those in the United States, and while the database is not exhaustive with key limitations like the media coverage in the U.S. and other countries, it makes clear that there the idea of climate lawsuits becoming increasingly American as they far outnumber cases in other countries.
It shows that, in 2023 there have already been 51 such cases filed in the U.S. with an average of about 150 filed every year since 2019.
The cases cross a vast spectrum of issues within the climate fight.
Currently, the Sierra Club is suing the city of Chico, California for failing to consider greenhouse gas emissions impacts and climate change impacts on water supply, as drought in the region worsens.
A lawsuit by the Robert F. Kennedy, Jr. nonprofit was brought against the Biden Administration alleging that they are inducing social media censorship around climate change allegations.
Lawsuits challenging controversial infrastructure like CO2 pipelines are currently on court dockets.
And companies like Nike are being sued over what plaintiffs call a “misrepresentation” of sustainability products, while Glad is being challenged over its reportedly “deceptively” labeled recyclable bags.
The list goes on and on and on, showing that the wave of recent litigation is bringing up questions about climate law that have never been asked before.
However, one thing seems to remain the same.
The first entry in the Sabin Center’s database is from 1986: the City of Los Angeles v. National Highway Traffic Safety Administration case.
This specific lawsuit, brought about by LA and New York challenged the Administration’s decision to not conduct an environmental impact statement when it approved fuel efficiency standards for new cars for the years 1987-1989 and attempted to sue the NHTSA for failing to consider climate change.
As Ralph Cavanagh, an attorney with the Natural Resources Defense Council working on the case put it at the time, there will be “catastrophic climate changes in the decades ahead unless significant reductions in fossil fuel consumption can be achieved, including those potentially associated with improved fuel efficient standards.”
And clearly, he was right, as fossil fuel consumption in the U.S. has risen significantly since the case, peaking in the early 2000s and finally falling to its lowest levels in 30 years in 2020, according to data from the U.S. Energy Information Administration.
While federal courts ruled in favor of the administration in 1990, the judges, which included future Supreme Court Justice Ruth Bader Ginsburg, did not challenge the case’s foundation of climate science: that the Earth was warming and that humans were the primary cause.
As the journal Nature put it in an article covering the Montana case, science is again “taking the stand.”
“This is what I expect will be the battle of the experts,” Burger, said via Nature, referring to the Montana youth case. The science behind climate change, showing that Montana’s rate of warming has exceeded that of the United States, is what makes Burger think that the kids may have a shot against their lawmakers.
“The decision in this case ultimately will be part of a larger set of decisions that can help shape the course of climate, governance, and the future," he said.
Still, because there is less and less debate over the science of climate change, it begs the question of how much cases against companies, fossil fuel producers, the federal government, and state lawmakers will achieve.
“Even though climate change is a global problem and we need global coordination and federal leadership, ultimately, a lot of action is driven at the state level,” Berger says.
“There are important, critical gains to be made in advocating for and achieving more ambitious state climate action.”
This is especially important when the state of Montana contends that whatever emissions it is responsible for are, in the grand scheme of things, inconsequential, because no specific climate harms can directly be traced back to them, ultimately putting this question of the stand: Who is responsible for mitigating climate change and who is making it worse?
However, as Burger put it in an op-ed about the Held v. Montana case, “[C]ourts have seen through the ‘drop in a bucket’ defense, in which governments argue that climate change is simply too big for anyone to be held responsible.”
“One way or another, Montana is preparing for a whole new kind of climate impact,” he wrote.
While fossil fuel companies have long argued that climate change has no place in court, this case could have an impact on the decisions made for what the Columbia database shows, will likely be over a hundred cases filed this year, and hundreds more in years to come.