The mining and fossil fuel industries of Montana have spent decades knowingly committing sins against the planet and humankind.
But a surprising state court ruling, last week in the Big Sky State, is giving people in the greater Pacific Northwest and beyond hope for eventual accountability.
Finding for sixteen young plaintiffs in Held v. Montana, Lewis and Clark County District Court Judge Kathy Seeley ruled: “Montana’s emissions and climate change have been proven to be a substantial factor in causing climate impacts to Montana’s environment and harm and injury.”
The ruling is the first big victory in a series of legal actions, backed by a legal outfit called Our Childrens Trust, arguing that polluters and government colluders are causing irreparable harm to the world we leave to future generations.
The lead plaintiff was a young woman who has watched dwindling water supplies on her family’s 7,000-acre ranch.
If you want to see what polluters have done to Montana, look around.
Just below the wing as your plane lands in Butte, Montana, is the mile-long Berkeley Pit, once a gigantic Anaconda Copper open pit mine. The pit is now filled with a toxic brew of water heavy with heavy metals. Thousands of snow geese landed on the “lake” in 2016: All died. The open pit mine, which closed on Earth Day in 1982, is one of the federal government’s largest Superfund sites.
Up at Libby in northwest Montana, the W.R. Grace Company operated a vermiculite mine from 1965 to 1990.
Grace knew that asbestos dust was getting into its workers lungs, making for “An Air that Kills” – the title of a book by Seattle Post-Intelligencer investigative journalists David McCumber and Andrew Schneider. The workers were never told. The death toll from lung diseases, at last count, stood at 694. One in ten Libby residents suffers from having breathed the asbestos dust.
Montana has populist traditions which its current Republican rulers are seeking to squelch. It’s not hard to understand. Anaconda refused to give bathroom breaks, forcing its workers to urinate in their trousers. At the dawn of American environmental awareness, in 1972, Montanans enacted a constitutional amendment, saying “the state and each person shall maintain and improve a clean environment in Montana for present and future generations.”
The amendment didn’t have much initial impact. It was used in a successful political battle to keep a gold mine out of mountains on the northeast border of Yellowstone National Park. The Clinton-Gore administration eventually bought out the mining company. The Greater Yellowstone Coalition is currently raising $6.1 million to buy out another mining claim.
But the State of Montana, under Democratic and Republican governors, has fought to keep in operation the four big coal-burning power units at Colstrip, southeast of Billings. Two of the units are slated for shutdown, and the project faces a $500 million bill to comply with the Clean Air Act.
In words of Ann Hedges of the Montana Environmental Information Center, “Montana is the only state in the nation that wants to acquire more coal.”
Then-Governor Brian Schweitzer, a Democrat, was a frequent visitor to Washington promoting coal export terminals proposed for Longview and Cherry Point, which is located north of Bellingham.
The Montana Legislature, in 2011, amended state law to limit the scope of environmental reviews of projects, forbidding consideration of “actual or potential impacts beyond Montana’s borders.”
More recently, the Republican-dominated legislature, this past May, explicitly prohibited state agencies from “an evaluation of greenhouse gas emissions and corresponding impacts to the climate in the state or beyond the state’s borders.
The ruling by Judge Seeley will be felt in one pending case. The Montana Supreme Court has before it the issue of whether state regulators must consider greenhouse gas emissions and climate effects of a $283 million, 175-megawatt petroleum gas power plant along the Yellowstone River near Billings.
The state attorney general’s office has been graceless in defeat and is vowing an appeal. Emily Flower, an aide to AG Austin Knudsen, said in a statement: “This ruling is absurd but not surprising from a judge who let plaintiffs put on a weeklong taxpayer-funded publicity stunt that was supposed to be a trial. Their same theory has been thrown out of federal court and courts in a dozen states.”
Still, this is the first time a judge has ruled on the merits of a case that the government has violated its obligations to young citizens.
“Plaintiffs have a fundamental constitutional right to a clean and healthful environment which includes climate as part of the environmental life support,” Seeley wrote in her opinion.
“More rulings like this will certainly come,” said Julia Olson, who argued the case for Our Childrens Trust.
Environmental provisions in other states’ constitutions and laws – Pennsylvania, Hawaii, Massachusetts and Illinois – are certain to be subject to legal tests.
A federal case to watch is Juliana v. United States. Young activists in Washington and Oregon have pressed the case that the federal government has not done its duty in giving them a healthy environment by promoting fossil fuel industries.
A prominent plaintiff is Aji Piper, who as a Seattle teenager began singing at protests directed at the proposed Gateway Pacific Coal terminal in Whatcom County. Piper’s lyrics carried far more bite than the soundbites of politicians who followed him to the dais.
Plaintiffs’ attorneys hope Juliana will go to trial next spring. But the Biden-Harris Department of Justice is seeking to have the case squelched.
