Can climate be litigated?

By Brad Hayes


As public discourse about climate change and climate crisis escalate to the point that the Secretary General of the United Nations talks about “global boiling”, we hear more and more about lawsuits launched against organizations accused of creating or failing to stop greenhouse gas emissions (GHGs). As the story usually goes, by promoting GHGs, these agents have exacerbated climate change, damaged the environment, and the physical/mental health of plaintiffs so extremely that legal remedies are required.

Major oil companies were the initial targets – Shell was sued in the Netherlands by non-governmental organizations (NGOs) for violating human rights obligations and ExxonMobil was accused of failing to disclose climate change risks by the Attorney General of Massachusetts.

But now governments themselves have become targets, exemplified by the recent decision in Montana District Court, where an activist group successfully sued the State of Montana and its agencies regarding the constitutionality of the state’s energy systems. They alleged that state practices caused and contributed to climate change in violation of plaintiffs’ Montana constitutional rights. A trial was held June 12-20, 2023, and on August 14 a judgment was issued in favour of the plaintiffs.

Plenty of analyses has been written – energy analyst Irina Slav ridiculed the decision, calling it “The sunset of reason”, while climate crisis advocates supported it, saying “Courts are affirming climate science”.

In fact, you can find just about any opinion you want to find – and this is just the beginning, as Montana is going to appeal the decision to a higher court. That said, in reading the judgment, I find some very interesting points about strategies that people should understand in trying to figure out the significance of the decision.

Our Children’s Trust, the advocacy group organizing the lawsuit, selected the legal route for their complaints because they knew they could not rely on technical merit to make their case. A hearing in front of an impartial group of technically competent scientists and engineers would carry a high risk of failure in view of the technical complexities and uncertainties around the material effects of climate change. This is a well-known tactic in legal and regulatory circles – groups with weak technical cases want to be heard by a non-technical judge.

They want to include appeals to emotion, whereas groups with strong technical cases want to focus on quantifiable facts presented in a regulatory setting to people that appreciate the technical arguments. A district court judge is qualified only to pass judgment on legal issues, not on the technical facts or principles underlying the arguments. In this case, the judge should not rule or opine on the merits of whether climate change is happening or what the causes might be, but instead should choose what to believe based on testimony and documentation submitted.

The trial was relatively short – seven days, so probably about 40 hours in court. That is not much time to address critical constitutional issues, considering that most trials considering questions of substance are usually longer. Plaintiffs presented 24 witnesses and filed 168 exhibits, while defendants presented only three witnesses and four exhibits. The decision came down in two months – practically overnight by legal standards.

The “Finding of Facts” written by the judge, based on witness testimony, is a simplistic listing of climate crisis rhetoric. The judge accepted assertions of unquantified impacts individual plaintiffs claimed to have suffered because of climate change, including:

  • Feeling claustrophobic because smoke linked to climate change caused one boy to “seek refuge indoors”
  • Losing weeks of employment because of a particular forest fire
  • Impaired recreational activity on Montana rivers because of low stream levels
  • Depression arising from seeing the glaciers recede in Glacier National Park

Further along in the Finding of Facts, the judge writes: “It is technically and economically feasible for Montana to replace 80% of existing fossil fuel energy by 2030, and 100% by no later than 2050, but as early as 2035.”

To support this assertion, she accepted without reservation testimony by Mark Jacobson, an academic who in 2015 claimed that all energy (not just electricity) for the entire continental United States could be produced by wind, solar, and hydropower by 2050 to 2055. Despite the lack of progress toward this goal in the eight years since, and the rejection of this thesis by almost every regulator and power authority, the judge accepted the Jacobson viewpoint.

The defendants did not present dissenting expert testimony regarding uncertainties or alternatives around issues concerning anthropogenic influences on climate change, or around the practicalities of providing affordable and reliable energy for all citizens. And they clearly did not see value in arguing against the emotionally powerful but scientifically unsupported testimony of individual plaintiffs – for example, by pointing out that forest fires have always and will always happen, that it is impossible to link “climate change” to the fire that deprived one plaintiff of some wages, that rivers generally have an ever-shifting cycle of high-flow and low-flow years, and that glaciers have been receding since the last ice age over 15,000 years ago.

In his review of the case, Frances Menton, a practising lawyer writing as the Manhattan Contrarian, noted:

“Reports from the trial indicate that the state put on almost no defense. Expert witnesses that had been named by the defense on science issues (e.g., Judith Curry) were not called to testify. I have to think that the reason for this is that the Montana [Attorney General] has a read of the Montana Supreme Court that tells him that this decision will shortly get reversed.”

This assessment makes sense to me. Montana could have done a lot to refute the weak and largely baseless arguments advanced by the plaintiffs, but instead opted to roll over in a cursory proceeding. For the sake of the economic well-being and energy security of Montana citizens – and citizens of other jurisdictions where this case could be cited as a precedent – let’s hope that those tactics do not backfire.