Think Out Loud

Our Children’s Trust on historic win in Montana climate change case and federal challenge

By Allison Frost (OPB)
Aug. 16, 2023 12:32 a.m. Updated: Aug. 23, 2023 4:50 p.m.

Broadcast: Wednesday, Aug. 16

Youth plaintiffs in the Held v. Montana climate change lawsuit are pictured in this photo provided by Our Children's Trust.

Youth plaintiffs in the Held v. Montana climate change lawsuit are pictured in this photo provided by Our Children's Trust.

Courtesy Robin Loznak/Our Children's Trust


Our Children’s Trust got its first definitive win in court this week in one of the many climate change lawsuits it’s filed in state courts and federal jurisdictions all over the country. The group was challenging a law involving carbon emissions in Montana on the grounds that it violated environmental protections enshrined in the state’s own constitution. And while Montana Attorney General Austin Knudsen called the ruling “absurd” and promised to appeal, the case’s significance cannot be overstated. It’s the first OCT case to be allowed to go to trial, be litigated and have the judgment favor the plaintiffs.

The best known challenge to the country’s fossil fuel energy system is Juliana v. U.S., named for the lead plaintiff in Eugene, where the group is based. The case has been held up with legal maneuvering for eight years. A ruling in June cleared the way for the case to go finally go to trial, but the U.S. government is trying to prevent it from moving forward. Our Children’s Trust managing attorney Mat dos Santos joins us to share more about the recent win in Montana, the ongoing strategy in the federal challenge and other cases that are making their way through state court systems.

Note: This transcript was computer generated and edited by a volunteer.

Dave Miller: This is Think Out Loud on OPB. I’m Dave Miller. The legal nonprofit Our Children’s Trust was formed about a dozen years ago with one big goal: to bring suits on behalf of young people to force federal and state governments to address climate change. The group has brought suits in all 50 states, in addition to a high profile federal case in Oregon, but only one of those suits has gone to trial, it was in Montana. And this week its young plaintiffs won. Mat dos Santos is a managing attorney at Our Children’s Trust and joins us to talk about both this Montana case, and the other cases that are still going forward. Welcome back to Think Out Loud.

Mat dos Santos: Thanks for having me on.

Miller: Every state case and the federal cases you filed, they have their specific details about those state laws or constitutions. But can you remind us what the overall legal theory or strategy is behind all of your work? What unifies it?

dos Santos: Sure. Our Children’s Trust was founded in 2010 to bring cases on behalf of youth against their governments for their roles in promulgating the fossil fuel industry and the harms that come out of that industry, like climate change. All of our cases are based on constitutional principles and they’re all based on the best available science, which is frankly one of the things that really unifies all of our cases and makes them distinct.

Miller: But why governments? What is the broad argument that says that governments are an entity that can and should be sued?

dos Santos: I love this question because people always think about the fossil fuel industry, and of course there are ongoing suits against the fossil fuel industry, some of which are brought by youth right here locally.

But when you think about it, the government plays a fundamental role in all of the fossil fuel infrastructure. It says okay to every new project that gets put into the ground, gets developed here in Oregon or in other states. The government, in some ways, is primarily responsible for every fossil fuel project that comes on online.

Miller: So just to be clear, you’re not saying a state should say to its residents “you can’t burn fossil fuels,” what you’re saying is the states have to consider the impact of, say, drilling or fossil fuel projects on its citizenry?

dos Santos: Yeah, that’s exactly right. Governments are responsible for the big picture, and governments have to play a role in transitioning our communities from fossil fuels to sustainable energy like wind, water, and solar.

Miller: Why focus on young people for these cases? A 90 year old is impacted by climate change, on a given day, just as much as a nine month old.

dos Santos: So I agree that a 90 year old is impacted on any given day by climate change, and sometimes in really severe ways, like around severe heat. But young people are very unique in that their bodies and brains are still forming, and extreme heat, air pollution, a lot of the things that we see as impacts of climate change, young people are equally susceptible to them. And those harms that happen to their young developing bodies can then continue and have worse health outcomes for them throughout their entire lives. So when they’re 90, they would be even more susceptible to climate change than a 90 year old today.

Miller: So let’s turn to the Montana case. How is this the first state case to even go to trial? As I mentioned in my intro, we’re talking about 50 cases, your group has brought these cases in every state in the country. This is the only one that’s gone to trial.

dos Santos: Yeah. I often think about that myself too, “how is this possible?” It’s really remarkable. But one of the things that I like to think about is the arc of these cases. And really when you think about any big civil rights case, like same sex marriage or desegregation, those cases started 50 years before we finally had a federally recognized right, or 40 years in the case of same sex marriage. And so I think it just takes time. And in Montana, for better or for worse, you had a government that was denying all the impacts of climate change, really denying that humans cause climate change at all, and taking really egregious actions like prohibiting agencies from considering the impacts of climate change when they were permitting a new power plant. So the judge in this case, I think, rightly decided that this case needed to go to trial.

Miller: Well before we get to those specifics, what actually prevented other state cases from going to trial?

dos Santos: I think that there are some legal things that the various states relied on as defenses in these cases. Probably one of the ones that was most regularly relied on is this idea that this is too big of a question for a court to handle.

Miller: This shouldn’t be brought here, take this up at the federal level? This is not our business, broadly?

dos Santos: It’s even sort of a little bit different than that. They’re saying that we shouldn’t decide this, the legislature should, or the executive branch should. Which really, to me, is baffling. Because when you think of some of the biggest problems that society faces, the courts have stepped in and played a fundamental role in resolving them. The courts didn’t fix segregation problems in the South, that required efforts from all branches of government and the population. But they started the process by declaring the right. So we need courts to participate in this process, just as much as we need the legislature and the executive branch. And when courts hand their power over to the legislature or the executive branch, I think that’s a really big disservice to our democracy.

Miller: The Montana case centers on a provision in that state’s constitution which is not unique, but very unusual in the 50 state constitutions. What does it say?

dos Santos: So the provision that I think you’re talking about is both in Article Nine and Article Two of Montana’s constitution, and that’s the constitutional right to a clean and healthful environment. This constitutional provision was written when Montana rewrote their constitution in the early 1970s. And so at trial, we were able to call as a witness the author of that provision, to ask her, the youngest delegate to the Montana Constitution at that time, what she meant when she wrote those words. It was a remarkable moment in trial to hear her talk about how she as a young person was trying to protect Montana’s environment for future generations.

Miller: The language is actually pretty striking. I’m gonna read it here: “the state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations. The legislature shall provide for the administration and enforcement of this duty, and the legislature shall provide adequate remedies for the protection of the environmental life support system from degradation, and provide adequate remedies to prevent unreasonable depletion and degradation of natural resources.”

So that’s what is in the constitution of Montana since 1972. But Montana lawmakers earlier this year limited the ways in which greenhouse gas emissions can be considered during the approval process for energy and mining projects. What did they say just this year?

dos Santos: It actually started in 2011 when they amended some of their statutes to exclude any consideration of impact of something like a coal mine. They’re obviously gonna have impacts there locally, but then the air pollution that they emit will have impacts beyond the state of Montana. They limited the agencies who were reviewing those permits from considering any of the impacts beyond the immediate impacts.

Then in 2023 they further amended it to expressly exclude climate change from consideration when reviewing fossil fuel permits.

Miller: This is now known as the MEPA, or Montana Environmental Protection Act, limitation. What did your plaintiffs, what did you and the young people you represent, argue about these limitations?

dos Santos: Well, we argued that they were unconstitutional based on the provision that you just read. Also that they went further than that as constitutional violations, that they violated the youth plaintiffs rights to dignity, to health and safety, and to equal protection under the laws. And Judge Seeley and her magnificent 103 page very detailed order agreed with us across the board.

Miller: What kinds of counter arguments did the state of Montana put forward?

dos Santos: Early on in the case, the state seemed to be defending rather vigorously. They put up arguments like the one I said earlier, which was “this case shouldn’t be in court at all.” They also argued that while climate change might be happening, that it isn’t human caused. They argued that the plaintiffs weren’t being injured, or we couldn’t show that their harm was because of what the state was doing. And Judge Seeley soundly rejected all of those arguments after we put on a week of robust evidence coming from some of the world’s leading scientific experts, and had nearly all of the plaintiffs take the stand and testify about how they were being harmed.

Miller: The judge wrote this: “Montana’s greenhouse gas contributions are not de minimis” a legal term meaning minimal, “but are nationally and globally significant.” I was struck by this because I’m wondering how important this is to you legally. You’ve brought suit in all 50 states, and some have bigger fossil fuel impacts on others by virtue of population or what’s underground in those states. I thought your argument was that it doesn’t matter how big your footprint is, you still have the requirement, you have to take this into account for our collective future.

I guess what I’m wondering is, why should it matter if a state has a big footprint or a little one?


dos Santos: I think you’re right that, at its core, it doesn’t matter. And Judge Seeley also said that every additional ton of carbon dioxide that goes into that atmosphere harms the plaintiffs and has the potential for long lasting catastrophic harms to everyone. So she’s saying it doesn’t matter. But the state was really trying to say there’s nothing to see here, even if Montana changes it won’t matter, it won’t have a big enough impact. And what we were able to show, this brilliant expert. Peter Erickson talked about how, when you look at Montana, you can see just how big of an impact Montana has for such a small state and population.

Miller: Because of its fossil fuel holdings.

dos Santos: That’s right. And they have one of the largest coal reserves in the world.

Miller: A spokesman for the Montana attorney general says that they’re going to appeal this decision. But let’s fast forward to a possible future where an appeals court there or the state supreme court says this ruling stands. What would that actually mean in terms of the siting of future fossil fuel projects?

dos Santos: I think that world actually is happening now because there is no stay to this order. The judge could have issued a stay while there was any potential appeal and she did not. So it takes effect immediately. And what I think it means is that the state now has to do several things. It has to consider the impact of climate change, which it had previously excluded in that statute that was struck as unconstitutional. It also has to consider the harms to plaintiffs, harms to young people in Montana. And it has to decide when it permits or not a fossil fuel project, whether that project would violate their constitutional rights, and this right to a clean and healthful environment.

Miller: I’m slightly confused about this. Is striking down a law that forbids the state from taking emissions into account the same as requiring state agencies to take emissions into account?

dos Santos: Yeah, I can see why that would be confusing. And I think in this instance, it does require that they take it into account because of the way that the order is written, and that she said that that exclusion made it so you couldn’t consider climate change. And we had testimony from state actors who said if that exclusion hadn’t existed, they would have taken it into account. And they had prior to 2011.

Miller: The founder and legal director of your nonprofit Julia Olson said in a press release that this ruling is “a game changer that marks a turning point in this generation’s efforts to save the planet from the devastating effects of human caused climate chaos.” But as we talked about earlier, this is one specific ruling in one very specific state case that has its own constitution and its own set of state laws. So how can it have a broader impact?

dos Santos: As you can imagine, I completely agree with Julia that this is just a landmark event. I know it’s being looked at by legal minds across the world right now, including courts that are considering other cases that are somewhat similar in nature. And even if this particular case is only binding in Montana, courts look at each other’s decisions all the time. And again, just taking a moment to think about the history of our country and our big civil rights struggles, Thurgood Marshall took cases to state supreme courts in Texas before he took desegregation cases to the federal supreme court. So often state courts have huge ramifications on what federal courts do. And of course, what the United States does has huge global ramifications.

Miller: Is what you’re talking about as much about kind of non-legal momentum, societal shifts, as it is about a clear judicial precedent? Are you talking more about the arc of the social world as opposed to the legal world?

dos Santos: I think I am talking about both what I would think of as the arc of justice-

Miller: I think I stopped myself from saying that.

dos Santos: It’s okay, I’ll say it for you. I think we’re talking about a watershed moment for society at large. But we’re also talking about a really clearly articulated opinion by this smart judge who lays out all of the facts that the plaintiffs testify about, that the scientific evidence shows, and then makes a legal decision that I think is really irrefutable. And I think that courts will look at it as persuasive authority.

Miller: What about state based activists who might look at Montana’s constitution and say “hey, I’d like that too.” My understanding is that that language that I read earlier, or something like that, is only in three state constitutions total. Can you imagine a movement where language like that, that there’s an effort to inject that in state constitutions around the country?

dos Santos: Yeah, I truly hope that folks are motivated and mobilized by this decision to add what people call green amendments to their state constitutions where that’s possible. I think it’s another tool in the toolbox for combating climate change in the courts, as well as in the streets.

But beyond that, I think that lots of constitutions do have other provisions where we’re bringing suits in other states, including Hawaii and Virginia and Utah. And not all of them have this exact same language, but we believe that there’s other language in the constitution.

But fundamentally, and I think Judge Seeley is really clear about this in her Montana order. This idea that a stable climate needs to exist is underpinning all of our fundamental constitutional rights. How do you have life, liberty, safety, happiness, if you’re faced with devastating fires, with air you can’t breathe, with water that you can’t drink? For us it’s a fairly simple argument, which is that in order to understand any of our constitutions in our constitutional democracy in the United States, you have to understand this underpinning fundamental right.

Miller: Even if it doesn’t have some particular state constitution language like Montana that literally mentions the phrase “environmental life support system.”

dos Santos: Exactly.

Miller: You mentioned some of those other state cases that are still going forward, Hawaii among them, top of mind I think to a lot of people right now as we’re still learning more about the devastation on Maui. Where does that case stand right now?

dos Santos: We just got a scheduling order from the judge, and that case is scheduled to go to trial starting in late June of next year. So right now we’re in the middle of discovery, talking to the state agencies, gathering evidence of what we say is the harms that they are causing through not upholding their promises to Hawaiian youth. And that case is really interesting too because it’s slightly different. It’s gonna be the first case that looks at greenhouse gas emissions from the transportation sector as opposed to power generation, which is what we were really looking at in Montana.

Miller: Why make that switch? That’s a kind of a different strategy in a sense.

dos Santos: Both the energy and transportation sectors depending on what state you look at are the largest contributors to greenhouse gas emissions. And in Hawaii, it was really clear that the Hawaiian government laid out some promises to its people, both through statute and constitutional principles, that it wasn’t upholding, specifically to the transportation sector.

Miller: I want to turn to the federal case, the Juliana case that we have talked about a couple times over the years, but not for a little while. And I gotta say I thought it was dead. And then it turned out I was wrong. This is a suit that was filed in Oregon, a federal suit, eight years ago. So what is the latest on this case?

dos Santos: So this is just tremendously exciting. We filed a motion a couple of years ago after the ninth circuit decision that I think a lot of people kind of misunderstood as ending the case to amend our complaint, and just to address some of the things that the Ninth Circuit said could not be brought in the complaint. For reasons unbeknownst to me the decision around our motion to amend, didn’t get decided until just earlier this year. And now we’re back on course for trial. We could potentially go to trial as early as the end of this year or early next year in Juliana.

Miller: What would a trial mean?

dos Santos: A trial in Juliana would be incredible. It would allow us to lay forth all of the evidence of these 21 young plaintiffs and how they’ve been harmed by the US government. It would allow us to introduce all of the scientific evidence that we introduced in Montana, but at a much broader scale because we’d be talking about the United States contributions to climate change as a whole. And I think it’s essential for a case like this, because as a court is evaluating somebody’s constitutional rights, they need to look at the facts that underlie these injuries that we’re talking about in court.

Miller: Is it fair to say that simply getting to take part in a federal trial would be, for your organization, its own kind of win?

dos Santos: Absolutely. I think a trial in Juliana would mean a win in Juliana. It is very, very hard for the government, as we can see in Montana but I think it would still be equally as hard for the US government, to refute the ways that the government has knowingly furthered climate change over the last many decades. But really importantly, for the youth involved, it’s an opportunity to finally have their voices heard.

Miller: Youth, but some of them are in their mid twenties now?

dos Santos: Yeah, that’s true. They’re still youth to me.

Miller: Mat, thanks very much.

dos Santos: Thanks for having me on.

Miller: Mat dos Santos is the managing attorney at the Oregon-based legal nonprofit Our Children’s Trust.

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