As I write, the green valley where I live is burning. The air in my hometown is foul and yellow and coils like an acid snake in an old man’s throat. I have my rescue inhaler at hand just in case, and authorities tell me it would be better all around if I didn’t go out at all—work or play—until things get better. Last night, my phone woke me with a terrifying howl, and my screen screamed GO NOW. The message included instructions not to gather belongings because minutes or even seconds may make the difference between life and death. After a moment of panic, I realized the warning was not for our neighborhood.
Not this time.
But the GO NOW notice is coming for all of us sooner or later, whether we live in a lush paradise like Maui or the temperate forest area like Oregon’s Willamette Valley or a big East Coast city. Our planet is burning, and it is burning because highly civilized human beings are putting the torch to our homes, our forests, our livestock, and our future. A small group of people is fighting every effort to abate the climate crisis in order to protect their stake in the fossil fuel industry. These people are secure in the belief that no one can touch them or ever call them to account, that they are so powerful that government will act by turns as valet and bodyguard for their interests. And for decades, as the climate crisis accelerated, they have been proven right. Our political system, our courts, and our media have treated environmental deterioration as if it were an act of God instead of the work of humans who know exactly what they are doing.
On August 14, in a courtroom in Helena, Montana, a state judge poked a tiny hole in this skein of impunity. In a case brought by 16 young state residents, Montana District Judge Kathy Seeley ruled that the state’s pandering to the fossil fuel industry violated their rights to “live clean and healthy lives in Montana.” While the state will undoubtedly appeal to the Montana Supreme Court, this victory is a breakthrough for climate litigation.
The plaintiffs, aged 5 to 22, have been represented by Our Children’s Trust, an environmental non-profit in my hometown, Eugene, Oregon. OCT has brought climate lawsuits in most U.S. states and has a lawsuit against the federal government pending in federal court in Oregon. I have held back from writing about them for journalists’ reasons. They are my friends, whom I admire greatly. Their legal team is largely made up of graduates of the University of Oregon law school, where I have taught, on and off, since 1992. What they have done with their career is precisely what many young people enter law school hope to do but too often leave convinced it’s not worth doing. Often, I wish I had chosen the path they have taken.
The Montana plaintiffs are so clearly right that even, as an opinion journalist, I felt paradoxically uncomfortable expressing that fact.
So, discount what I have to say however much you want—at least until the GO NOW notice comes for you. The historian Howard Zinn famously said, “You can’t be neutral on a moving train.” Whether that’s true or not, surely you can’t be neutral on a burning planet. At any rate, as I struggle to breathe, I can’t. I love these plaintiffs, I love their lawyers, and I am overjoyed that they won.
The Montana case is the first major victory for OCT. The federal lawsuit, Juliana v. United States, in which another group of young plaintiffs seeks a judgment that Washington’s energy policies are unconstitutional by depriving the plaintiffs of the right to life, has been in litigation since 2015. The administrations of three presidents—Barack Obama, Donald Trump, and Joe Biden—have argued that the plaintiffs have no legal claim against the United States and no rights to a livable environment that the government is bound to respect. In one of its iterations, the case came before a panel of the West Coast-based Ninth Circuit, which ruled in effect that everything in the plaintiffs’ complaint was true but that their complaint lacked “redressability”—that there was nothing the court could do to help them. Tell it to Congress, the judges said comfortingly. This Pontius Pilate-style opinion sparked a dissent by Judge Josephine Staton, a California district judge sitting on the panel, who wrote that the majority’s reasoning was “as if an asteroid were barreling toward Earth and the government decided to shut down our only defenses. Seeking to quash this suit, the government bluntly insists that it has the absolute and unreviewable power to destroy the Nation.”
Remarkably, the case remains alive after eight years, as the plaintiffs have amended their complaint to include recent Supreme Court precedent about redressability. The Biden Justice Department continues the stonewalling of the past two administrations; this case, they demand, must never get a hearing. Our Supreme Court may likely reach down to erase any victory they win. Just last year, in West Virginia v. Environmental Protection Agency, the Trump-enlarged conservative majority struck down a modest plan to shift electricity generation away from coal-fired plants. This climate business, Chief Justice John Roberts sniffed, is nothing more than “the crisis of the day,” and, anyway, if it is so all-fired important, the federal government cannot respond to it unless Congress—and President Joe Manchin—agree.
So, there is no help to expect from the Court. But there’s no reason why the Biden administration should continue to stonewall. The government and OCT could settle. President Biden has repeatedly said that he intends to act on climate change. Action is what the Juliana plaintiffs want. I am hearing in my head the voice of Steven Hill, who played the Manhattan District Attorney in Law & Order: “Make a deal”—before a new administration sweeps in with a climate-change-is-a-hoax agenda.
As for state cases, it’s hard to say what effect the Helena victory will have. In some ways, Montana is the perfect place for a test case. Its constitution was adopted only 50 years ago when environmental awareness had begun to break through. Article IX provides that “the state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations” and requires the legislature to provide “adequate remedies for the protection of the environmental life support system.” There’s not much ambiguity about whether environmental rights exist in Montana—not much room for a court to wash its hands, Ninth Circuit-style.
For another thing, Montana, with 1.1 million people in an area larger than Japan, is a major contributor to the greenhouse gas emissions that are the chief cause of climate change. As Seeley notes in her opinion, in 2019, the state’s extractive industries produced fossil fuels that will add 70 million tons of the chief greenhouse gas, carbon dioxide, to the atmosphere—more than were added that year by Brazil, Japan, Mexico, Spain, or the United Kingdom.
Finally, Montana’s conservative legislators have been unusually frank about proclaiming that they really couldn’t give a hoot or holler about climate change if it interferes with drilling for oil and gas or digging for coal. In 2011, they amended the state’s Environmental Policy Act to explicitly forbid state regulators to “actual or potential impacts beyond Montana’s borders.” Last May, after a state judge held that regulators could consider greenhouse gas emissions that have effects within the state’s borders, the Republican legislature and governor took only six weeks to enact language providing that state environmental assessments “may not include an evaluation of greenhouse gas emissions and corresponding impacts to the climate in the state or beyond the state’s borders.”
The legislation is striking for its shamelessness. At least climate deniers pretend they are not doing any harm; the Montana legislature doesn’t bother with that charade; instead, it sticks its fingers in its ears like Billy Crystal in The Princess Bride and shouts, “I’m not listening!” and “Nobody’s hearing nothing!” But it’s also striking because it’s not unique. Across red America, legislative and executive puppets of the extractive lobby are passing restrictions designed to bind the economy more closely than ever to oil, gas, and coal—penalizing investment firms for considering climate effects in their financial decisions; reclassifying natural gas, a fossil fuel, as “clean energy”; and shutting down efforts by localities to reduce their carbon footprints.
Eventually—as in the case of cigarette-industry denial—this subsidized skepticism runs its course. After a summer in which dense smoke swathed the East, unprecedented heat baked the South, extreme rainfall flooded Montpelier, Vermont, and a tropical storm washed over Los Angeles for the first time in 84 years, it is likely harder to sell the “nothing to see here” line to voters, judges, or business owners. Other states, including some red ones, have taken action to make the climate situation better, not worse. For heaven’s sake, even Louisiana has allowed offshore wind power development for the first time.
And after the immolation of Maui, I imagine there may be a receptive response to Navahine v. Hawai’i Department of Transportation, a state-constitution challenge to Hawai’i’s lagging energy policies, when it is heard in a Honolulu courtroom in June of next year.
It is an old news adage that there are not always two sides to every story. What defense can there be for legislators, governors, and presidents who declare that some facts may not be spoken, regardless of the harm that ignoring them will do? Or for courts that say an environmental disaster threatening us all is just too darn important for government to tackle?
All our lives depend on halting the deliberate sacrifice of our climate—and doing it soon, because the GO NOW notice is coming for us all.
Author: Garrett Epps