In a historic case, 16 kids are taking on the state of Montana for climate change. Can they win?

Children have often been at the center of major legal challenges and subsequent generational changes that have taken place in the United States. On Thursday, for example, the U.S. Supreme Court defied expectations by upholding the Indian Child Welfare Act, a federal law that aims to protect the rights of Native American children and preserve their cultural heritage when it comes to adoption.

The court ruled that members of Native tribes would continue to be preferred when adopting a Native child. The court ruled 7-2 in favor.

Brown vs. Board of Education (1954), perhaps the most famous case that affects children, was brought to the U.S. Supreme Court by 13 Black parents who argued that racial segregation in schools was unconstitutional. They won.

But it’s not often that children bring their constitutional case to a U.S. court. And that’s what’s happening in Montana. Sixteen children, supported by the Our Children’s Trust Organization and the Western Environmental Law Center, have accused the state of favoring the fossil fuel industry over the clean environment guaranteed by the state’s constitution. Only Pennsylvania and New York have similar amendments, known as green amendments, but more than a dozen other states are considering including something similar in their constitutions.

The civil trial comes during a rapid period of environmental change in the country. President Biden’s administration has consistently pushed a green agenda, culminating in passing the Inflation Reduction Act, a law that, among other things, pumps around $370 billion into transforming the country into a greener economy.

Montana faces climate challenges such as increasing temperatures, reduced snowpack and water availability, longer wildfire seasons, and impacts on agriculture and ecosystems. According to environmental advocates, these changes threaten the state’s economy, water resources, and wildlife habitats, highlighting the need for new strategies and sustainable practices to prevent further damaging ecological consequences.

The trial runs until June 24.

Maya van Rossum, a leading environmental advocate, riverkeeper, attorney, and expert on green amendments, is at the trial in Montana and spoke with Reckon about the case.

Reckon: Maya, can you simply tell us what this case is about?

Van Rossum: It’s really about two things. One, it’s about demonstrating that in the state of Montana, the people of the state have a constitutional right to a clean and healthy environment, which includes the right to a safe climate. Number two - by winning, this constitutional right of the people would oblige all government officials in the state to make sure that when they are taking actions and rendering decisions, they are not infringing upon that right to a safe climate. And here in Montana, that means making meaningful efforts to reduce climate-changing emissions from the extraction, production, transportation, and consumption of fossil fuels because they are a primary source of climate change.

R: You’re currently at this incredibly unique and historic trial. What’s the general mood and vibe inside the courtroom?

VR: Everybody who’s here seems united in support of these kids. People are very attentive and really hang on to every word of every witness.

The only real reactions we’ve seen are when the state attorneys behave inappropriately. At one point, the judge admonished one of the attorneys and said, “You need to calm down” because of his tone and combative attitude toward the expert witnesses.

But there have also been moments of levity when the state attorneys have tried to make a point and did not do it well. For example, when they challenged one of the expert witnesses speaking about ecological impacts on the climate, the state attorney objected and said they did not believe the witness was an expert on specific ecological impacts that he was testifying to. The witness leaned in and said, “I’m a co-author on the report we are talking about.”

Another time, the state asked the judge to take notice of a factual piece of information, which was that 70 million people lived on Earth. The judge looked at the paper and said, “I can’t get take judicial notice of this one because it’s just a typed-up piece of paper with no source, and I think you mean 7 billion people.

R: What brought you to Montana to see this trial?

VR: Montana is one of only three states with this kind of constitutional entitlement. It’s what I call a green amendment. Much of my and others’ work has been responsible for this kind of protection in Pennsylvania and New York, and amendments are being proposed in nearly 15 other states - where we’re trying to get the highest constitutional recognition and protection for the environment, including the climate.

But right now, Montana is one of three. So not only is this case about enforcing and securing a constitutional entitlement to a clean and healthy environment, but it’s demonstrating to the rest of our nation how powerful, important, and transformational this is from an environmental and climate protection perspective.

It’s important to recognize and protect the right to clean water, clean air, a stable climate, and healthy environments in the Bill of Rights section of our state and federal Constitution, where we recognize all those other fundamental freedoms we hold dear. I’ve come to see that in action.

R: Aside from what’s already reported in the media, what did you learn today about this case that maybe you previously weren’t aware of?

VR: There were a few important things that I had no idea about. For example, 80% of the glaciers in Glacier National Park have disappeared between 1850 and now. We also learned how dangerous heat stress is for unborn children and that it doesn’t just result in premature birth but heart disease, brain development, ADHD, autism, and lowered IQs. And we are seeing extreme heat in so many places. That was very compelling.

R: If you were arguing for the kids, what would your case be for them?

VR: Truthfully, I think it would be the exact case that’s being made that these young people do have a constitutional right and inalienable right to a clean, safe, and healthy environment, which includes a safe climate. It’s a very simple but powerful point.

R: What would your case be if you were arguing against the kids?

VR: I have no place or energy to argue against what is right, moral, and ethical. I would be too embarrassed to walk into the courtroom and try to make the state’s point, whether I’m making that point based on the issues of climate or trying to do it based on claims of legal interpretation, which is clearly where the state is headed.

R: In that case, what’s the state’s argument against these children?

VR: The state is trying to focus on the vagaries of legal language and how a certain law at issue is written. The long and short of it is that Montana is not unilaterally responsible for creating the climate crisis and the climate-changing emissions resulting in environmental harm around the world, the nation, and here in Montana. Therefore, the claim, Montana cannot unilaterally solve the climate crisis and prevent harm from happening to the youth plaintiffs.

R: Where are they going wrong in their argument?

VR: From my legal interpretation, the state is fundamentally misunderstanding or mischaracterizing how a constitutional green amendment of this kind works. A constitutional green amendment is about ensuring government officials ensure that their actions are not resulting or contribute to infringing a fundamental right. In this case, the right to a safe climate.

R: What will it mean to Montana, the country, and other states if the kids succeed?

VR: If this case succeeds, it means that every government official here in the state of Montana is going to have to take responsibility for the state’s contribution to the climate crisis and start making meaningful, impactful decisions that will reduce the state’s contributions to climate-changing emissions, very notably, in the context of reducing emissions from their production, the transportation and the consumption of fossil fuels.

So that’ll be a straightforward effect on government behavior here in Montana.

And at the same time, it will set a powerful precedent and inspiration for the rest of the nation to join the green amendment movement and make it an inalienable human right that all people get a clean, safe, and healthy environment.

R: Can you explain how other states will be able to do this in the future?

VR: They must first pass this constitutional green amendment in their state. That’s step number one. Step number two will enforce those rights when government misbehaves, and that’s what we’ve been doing in Pennsylvania, New York, and Montana. This will be the first time where it’s made clear that a safe climate is part of one of those entitlements.

R: Did you get any sense of environmental hope while listening to the expert witnesses or others who spoke in the court?

VR: There is always hope. One of the expert witnesses said that if we could reduce these climate-changing emissions and get them down to 350 parts per million, which is what scientists say is needed, that would make a huge difference. We’re up to over 420 parts per million. If we can reduce it, the glaciers in Montana could stabilize, stop shrinking, and actually start regrowing. And that is just like a really beautiful, hopeful recognition. Another scientist pointed out that it was only in the 1980s that we last saw the 350 parts per million figure. And that’s not that long ago, which means that it’s within our grasp to get there, is what he said.

The attorneys are doing a great job of making sensible legal points but also weaving in beautifully how much hope we should have. They discuss the stark, staggering implications of the climate crisis and end with strong, hopeful points.