Climate expert, Constitutional Convention delegate open testimony in Montana climate change trial

Attorneys give opening statements before three plaintiffs, other experts testify

By: - June 12, 2023 8:08 pm
Rikki Held sits on the stand as plaintiffs' attorneys question her in the Montana youth climate change trial on Monday, June 12, 2023.

Rikki Held sits on the stand as plaintiffs’ attorneys question her in the Montana youth climate change trial on Monday, June 12, 2023. (Photo by Blair Miller, Daily Montanan)

A Nobel Prize-winning climate scientist from Montana, the 1972 Constitutional Convention’s youngest member, and three of the youth plaintiffs who are suing Montana alleging the state is violating their constitutional rights to a clean and healthful environment were among the people who testified Monday at the opening day of what is expected to be a two-week trial.

The trial is being watched by many nationally and globally because it’s among the first to challenge the extent the government is responsible for reacting to climate change, and being brought by a group of youth.

Attorneys for the 16 plaintiffs and the state delivered their opening remarks in the Held vs. Montana lawsuit Monday morning in Lewis and Clark District Court by judge Kathy Seeley, who is presiding over the bench trial.

The plaintiffs from across the state argue that a provision in the Montana Environmental Policy Act, which was modified this legislative session to prohibit the state from looking at greenhouse gas emissions and climate change when considering environmental reviews for projects, violates their rights to a clean and healthful environment enshrined in the 1972 state constitution.

The state unsuccessfully asked the Supreme Court to halt the trial last week as it looks at the changes made to MEPA in the final weeks of the legislature after the state tried to get Seeley to dismiss the full case in early May over the legislative changes and repeal of the state energy policy.

But only the portion surrounding the energy policy was dismissed, and the state’s appeal to the high court was denied, leading to Monday’s opening of the trial in a courtroom packed full of the children and young adults who are plaintiffs, their parents and dozens of others.

Roger Sullivan, an attorney for the plaintiffs, opened by laying out the constitutional questions and discussing many expert witnesses the plaintiffs plan to call, which include several top Montana climate scientists, people with deep knowledge of MEPA and several of the plaintiffs themselves.

“The evidence will show that because of the now unstable climate system, caused by fossil fuel generated greenhouse gases … is neither clean nor healthful,” Sullivan said in his opening statement. “Because of this climate disruption, the physical and psychological harms from climate change that are experienced by youth plaintiffs are chronic and they worsen each year.”

He outlined how the scientific consensus is that the global carbon dioxide standard for a stable climate system would be 350 parts per million, where he said it stood in 1988, compared to around 424 parts per million currently.

Sullivan said that Montana generates as much greenhouse gas emissions as several other nations with populations scores of times larger, and that the lack of disclosure of how energy, mining, and other projects with environmental impacts would generate greenhouse gases is hampering the initial steps of fighting climate change.

Attorney Phil Gregory points to data about longer wildfire seasons in Montana at the Montana youth climate change trial on Monday, June 12, 2023.
Attorney Phil Gregory points to data about longer wildfire seasons in Montana at the Montana youth climate change trial on Monday, June 12, 2023. (Photo by Blair Miller, Daily Montanan)

Sullivan, and those who would testify as witnesses afterward, said that while carbon dioxide production that contributes to climate change is a global problem, Montana can lead the way in the U.S. to move away from fossil fuel consumption and kickstart changes by other states and nations. A ruling in their favor, Sullivan and the plaintiffs’ witnesses said, would lead the state down that path.

“Government decisions on fossil fuels informed by the harms caused by greenhouse gas emissions described and considered in the fossil fuels permit review process can result in constitutionally compliant decisions, leaving these young Montanans with the hope that in their lifetimes, the air will be clean, the water will flow throughout the summer, and they can once again feel secure in the blessings of this special place they call home,” he said.

Arguing on behalf of the state during opening arguments, Assistant Attorney General Russell spoke only for a few minutes, telling Seeley and the court they would hear lots of “emotions,” “assumptions, accusations, speculation, prognostication, and notably, fear about the future.”

“The substance of this case as it currently exists is far more boring than the claims that were made out to be,” he said.

Russell argued, as he and other state attorneys have during the past month, that the only remaining part of the suit, which was originally filed in 2020, that still exists is the MEPA limitation challenge, which Russell again said was “strictly procedural,” should not stand up in court.

“Evidence will show that even assuming the MEPA provision had or has any impact on Montana’s greenhouse gas emissions, and that its invalidation could somehow completely eliminate those emissions tomorrow, there would not be meaningful impact or appreciable effect on Montana’s climate,” Russell said.

He said the state’s witnesses would show the plaintiffs have a “misunderstanding” of MEPA and that Montana was “too minuscule” to influence greenhouse gas emissions because they are global.

“In other words, to reach the planet’s goals of 350 parts per mission, there’s absolutely nothing Montana does or could do to reach that,” Russell said.

During the rest of Monday’s hearing, the plaintiffs called five witnesses .

They included Rikki Held, the 22-year-old from Broadus who is the lead plaintiff, two other plaintiffs, as well as Mae Nan Ellingson, who, at 24, was the youngest member of the 1972 constitutional convention, and Steven Running, a former University of Montana professor of ecosystem and conservation science who was part of the Intergovernmental Panel on Climate Change which won a Nobel Peace Prize in 2007.

Mae Nan Ellingson, an original Constitutional Convention delegate from 1972, sits after testifying as a witness at the Held v. Montana trial on Monday, June 12, 2023.
Mae Nan Ellingson, an original Constitutional Convention delegate from 1972, sits after testifying as a witness at the Held v. Montana trial on Monday, June 12, 2023. (Photo by Blair Miller)

Ellingson, now in her 70s, discussed her initial move to Montana in the late 1960s and how beautiful she thought Montana was after going to Glacier National Park on her honeymoon. But she said after moving to Missoula, pollution from energy producers in and around the Missoula Valley often made it so she could not see Mount Sentinel from her house at times. She enrolled at the university and joined a group called Gals Against Smog and Pollution, kicking off her entry into environmental activism and politics.

She was brought in as an expert witness to testify to the beginnings of the “clean and healthful environment” language that ended up in the Constitution and discussed how she helped push for and craft the language.

Ellingson was one of five members who supervised and approved the publication of the proceedings from the convention and how she was trusted to help craft the document’s preamble, which says it aims “to improve the quality of life, equality of opportunity, and to secure the blessings of liberty for this and future generations.”

She said including the language involved long and contentious debates but were eventually agreed upon, which she said she and other delegates believe would lead the legislature to uphold.

“I’m proud of this constitution. I’m particularly proud of the right to a clean and healthful environment and our very strong bill of rights,” Ellingson told the court. “I support and encourage the young people of our state to be involved in our state, and I’m just honored. There are only nine of us 100 delegates remaining, so I’m honored I’m able to be here and share my thoughts about this important part of the constitution.”

Held, the lead plaintiff in the suit, told the court of her family’s long history ranching and running a hotel near and in Broadus, and how, as she got older, she became increasingly interested in climate change as she watched the Powder River both flood and dry up completely and saw wildfires ravage the area – leaving her family and other ranching families in southeast Montana struggling at times.

She said through her personal experiences on the ranch and working with the U.S. Geological Survey in college, she has seen firsthand the effects of a changing climate and the uncertainty it has left some ranchers when it comes to feeding their livestock and living on their longtime properties.

She said winning the lawsuit would establish a “model for the future” for the state and its people.

“I know that climate change is a global issue, but Montana needs to take responsibility for our part of that, and you can’t just blow it off and do nothing,” Held said. “So, this is just one step in the right direction, it’s going to be one step forward. You can’t let fear rule what you do. This case is about love for the people here in our state, my home.”

Kathryn “Grace” Gibson-Snyder prepares to take the stand as a witness in the Montana youth climate change lawsuit on Monday, June 12, 2023.
Kathryn “Grace” Gibson-Snyder prepares to take the stand as a witness in the Montana youth climate change lawsuit on Monday, June 12, 2023. (Photo by Blair Miller, Daily Montanan)

Kathryn “Grace” Gibson-Snyder, a 19-year-old from Missoula and a sixth-generation Montanan, talked about getting into environmental pushes in high school and how it led her to organize for an environmental group in town and push for restrictions on plastic straws in Missoula.

She also told the court how on numerous occasions while either playing high school soccer or hiking with friends and family, wildfire smoke forced event cancellations and left her struggling to breathe properly because of the poor air quality. She said she struggles thinking about the future if nothing is done to stem greenhouse gas emissions and global temperatures continue to rise.

Gibson-Snyder said she hopes to raise a family but questions that, saying she knows that her children could grow up not knowing the same places or experiences she got growing up.

“And knowing that if we don’t make any changes, they will be suffering from this, from the even more extreme physical impacts and all of the wildfires and droughts and floods and all of these things that will directly impact their health, I’m not sure I can morally or ethically have children,” she told the court.

Eva L. only went by her first name in court. She is a 17-year-old from Livingston who said climate change that has led to flooding in recent years on the Yellowstone and other rivers in the area and fish kills because of warm temperatures and parasites has left her with moments of dread growing up.

Her family decided to move to Livingston after living on the outskirts of town when a temporary bridge washed out, forcing the family to drive an extra half hour each way to town. The smoke permeating Montana’s skies in recent years has also made it difficult to be outside at times, she said.

She said she joined the lawsuit because since she couldn’t vote, and she wanted a way to take action and get her voice heard.

“(Winning) would ignite a sense of hope in me,” she told the court. “It would feel like the light at the end of the tunnel and give me a sense that we’re working in the right direction.”

The plaintiff’s most expert witness of the day was Running, the ecology and climate expert who worked at the University of Montana from the late ‘70s until 2017 and was among the early scientists working on climate change.

Dr. Steven Running prepares to take the stand as a witness in the Montana youth climate change trial on Monday, June 12, 2023.
Dr. Steven Running prepares to take the stand as a witness in the Montana youth climate change trial on Monday, June 12, 2023. (Photo by Blair Miller, Daily Montanan)

He is one of several climate experts the plaintiffs plan to call as witnesses at the trial. He started his career as a tree biologist but was recruited to work with NASA to take his work to a global scale by calculating carbon measurements across the earth and measuring drought.

Eventually, the work developed into satellite climate monitoring and data sets used worldwide, he said. Much of his testimony surrounded the scientific work on climate change he has done for decades, which leaned heavily on how the climate science community has determined that climate change is human caused and being exacerbated by the burning of fossil fuels – something he said there was no room for debate about.

“I think our climate science clearly has established that our climate is now unstable because we’ve imbalanced critical parts of the climate system,” he said.

On multiple occasions, he said that while the state’s argument that Montana could not solely change the carbon dioxide levels worldwide was true, climate change is certainly happening in Montana – sometimes worse than in other places – and that it would be pertinent to follow the science that says continuing to emit fossil fuels will only exacerbate the problem.

“It’s not a matter of where; it’s if,” he said.

He told attorneys for the state that humans have imbalanced the global carbon cycle by a factor of 1 million after digging up carbon across the globe and burning it during the past two centuries. The state objected several times to his citing published climate research as “hearsay,” which Seeley overruled.

“It’s pretty clear that all these extreme events are going to happen more frequently, and in greater magnitude, in ways that we can’t predict ahead of time, in many cases,” he said. “So, these could be very harsh surprises that we may be in for in coming decades if we don’t start to rebalance the climate system.”

More of the plaintiff’s witnesses, as well as the youth plaintiffs, are expected to testify Tuesday at the trial, which starts daily at 9 a.m. and is currently slated to go through the end of next week.

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Blair Miller
Blair Miller

Blair Miller is a reporter based in Helena who primarily covers government, climate and courts. He's been a journalist for more than 12 years, previously based in Denver, Albuquerque and mid-Missouri.