Montana’s expert witnesses in climate change trial billed state $95K

State called one of three expert witnesses to testify at Held v. Montana

By: - August 10, 2023 6:12 pm
Montana Assistant Attorney General Thane Johnson asks questions of state expert witness Terry Anderson on June 19, 2023, during the Held v. Montana trial.

Montana Assistant Attorney General Thane Johnson asks questions of state expert witness Terry Anderson on June 19, 2023, during the Held v. Montana trial. (Photo by Blair Miller, Daily Montanan)

The state of Montana was billed nearly $95,000 in total by the three expert witnesses the Attorney General’s Office utilized in the Held v. Montana climate change trial, two of whom the state never called to testify, according to records the Daily Montanan requested for paid invoices in the case.

The three expert witnesses were Terry Anderson, a self-identified “climate economist” and Hoover Institution fellow; neuropsychologist Debra Sheppard; and climatologist Judith Curry.

Anderson charged the state $27,125, according to invoices he billed the state of Montana. He testified at the trial, though some of the data he provided was deemed to be incorrect by attorneys for the plaintiffs.

But Sheppard, who billed the state $4,150 for work through Jan. 6, and Curry, who billed the state a total of $63,999 for her work, that of a research associate, and airline tickets, were never called to testify at the trial.

A spokesperson for the Attorney General’s Office told the Associated Press in the final days of the trial Curry was not put on the stand because of “strategy changes.”

While hiring expert witnesses for court cases and trials at the rates the three were paid is common practice, the costs of the state of Montana defending its laws – several of which have been temporarily or permanently enjoined – since the 2021 legislative session continue to mount and have been scrutinized by lawmakers and the public alike.

The legislature approved more than $2 million in the biennium for the Attorney General’s Office’s litigation costs to defend the state in cases and for outside lawsuits.

In the Held case, the state paid witnesses to support its argument that Montana laws ignoring greenhouse gas emissions from energy and mining projects do not violate rights to a clean and healthful environment as the youth plaintiffs allege.

How much each expert witness billed Montana

Curry billed the state through three separate invoices. She charged $400 an hour for 103 total hours of work for a total of $41,200. She also billed the state for 102 hours of work done by a research associate at $200 an hour for a total of $20,400.

Curry additionally billed the state $2,099 for four plane tickets to travel from Reno to Helena and back for both weeks of the trial. It is unclear if the airline ticket invoices were paid by the state, as Curry said in a blog post she wrote after the trial ended that she did not end up taking the flights. She declined to provide further information or comment for this story when reached by email.

Terry Anderson, an MSU professor and Hoover Institution senior fellow, looks at data he presented in the Held v. Montana as he tries to clear up discrepancies posed by the plaintiffs.
Terry Anderson, a Hoover Institution senior fellow, looks at data he presented in the Held v. Montana as he tries to clear up discrepancies posed by the plaintiffs. (Photo by Blair Miller, Daily Montanan)

Anderson, reached by email to ask whether the $27,125 in invoices made to the state were paid in full, said the inquiry was “totally irrelevant” and that the figure provided to him was “too high.” In subsequent emails, he failed to offer any alternative figure.

Anderson said on the stand during the trial he was being paid $500 an hour by the state and that he assumed he had already billed 25 hours, which would amount to $12,500.

The Daily Montanan requested public records related to amounts the state of Montana paid expert witnesses in the case, and the Attorney General’s Office provided 12 pages of invoices in response.

The records show Anderson sent the state four separate invoices for 54 ¼ total hours of billable work at $500/hour done between June 2022 and the end of the trial. The details of each hourly entry are redacted in the documents. One page shows a discrepancy in the number of hours listed and the total sum of hours on the invoice.

A $4,150 invoice dated Jan. 17 was the only one linked to Sheppard that was contained in the records. She did not respond to a request for comment for this story.

Spokespeople for the Attorney General’s Office did not respond to questions this week including an ask that they confirm whether the state paid invoices in full, address what money was used to pay the witnesses, and explain the reason for not calling Curry and Sheppard to the stand.

One expert witness critical of state attorneys

The 16 youth plaintiffs and their attorneys say that the state’s law that says it cannot consider greenhouse gas emissions and climate effects when performing environmental reviews on energy and mining projects violates their constitutional rights to a clean and healthful environment and stable climate system.

When the state decided not to call Curry or Sheppard to the stand – their only climate and mental health expert witnesses – Anderson, the director of the Department of Environmental Quality, and one of its division directors ended up being the lone people to take the stand to support the state’s arguments.

Curry, the president of the Climate Forecast Applications Network and former chair of the School of Earth and Atmospheric Sciences at the Georgia Institute of Technology, was the lone climate expert the Attorney General’s Office hired to support its side of the case and to rebut the testimony from the plaintiffs’ experts. 

Assistant Attorney General Michael D. Russell argues the state's position in a hearing on the Held v. Montana case on Friday, May 12, 2023.
Assistant Attorney General Michael D. Russell argues the state’s position in a hearing on the Held v. Montana case on Friday, May 12, 2023. (Photo by Blair Miller, Daily Montanan)

She said in testimony filed before the trial that plaintiffs’ concerns about climate change were exaggerated and reported her belief that Montana’s fossil fuel emissions only provided a tiny slice of global emissions and thus could not directly influence the state’s weather and climate. That claim was used throughout the trial by the state’s attorneys when cross-examining the plaintiffs and their expert witnesses.

In a blog post, Curry said she received a call from Montana’s legal team the Thursday night of the first week of the trial that the state was “letting [her] off the hook.”

In the post published on June 21, Curry said she was “relieved not to have participated in the trial” because of how the state’s attorneys handled Anderson’s testimony.

“I was deeply critical of how the cross-examination of the Plaintiffs’ climate witnesses was going, and very concerned about how my own direct testimony would be handled. I communicated my concerns to the lead MT lawyer numerous times over the first several days of the trial,” Curry wrote.

She called the state’s lawyers “totally unprepared” to cross examine the plaintiffs’ expert witnesses, adding that those expert witnesses misrepresented her written testimony, though that would be stricken from the record.

Plaintiffs’ expert witnesses largely worked pro bono

Mat dos Santos, the managing attorney for plaintiffs attorneys Our Children’s Trust, said its team worked thousands of hours on the case pro bono, meaning they were not paid by the plaintiffs. They said the expert witnesses also wrote reports and testified without being paid, though Our Children’s Trust did cover their out-of-pocket expenses, dos Santos said in an interview this week.

Should the plaintiffs prevail in the case, dos Santos said Our Children’s Trust will seek court fees and costs for the work they did and other expenditures.

“Because these cases are so incredibly expensive – they can easily run up the chain of a million dollars, or hundreds of thousands of dollars – we will for sure ask for that relief from the court if we win,” they said.

Judge Kathy Seeley’s decision in the case is expected to be handed down in the coming weeks. No matter the order, attorneys on both sides of the case have indicated it will likely be appealed to the Montana Supreme Court.

Editor’s note: This story has been updated to clarify when Curry wrote her blog post.

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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.

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