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Brian Lehrer: Brian Lehrer on WNYC, and now our climate story of the week, which we do every Tuesday on the show. In Montana, a group of 16 young environmentalists, ages 5 to 22, are suing the state for failing to uphold "a clean and healthful environment" for "present and future generations." Again, a clean and healthful environment for present and future generations. That language is in Montana's State Constitution. Last week, the plaintiffs testified in court and brought in expert witnesses to outline how the state's investment in the fossil fuel industry has violated, in their view, their constitutional rights. Yesterday, the state gave its arguments. The trial is called Held v. Montana, and it's the first constitutional-- of course, it's a state constitution, but there's a template here, the first constitution climate trial in US history.

Closing arguments are today, and activists in many other states are watching this to see if young people can bring lawsuits based on state constitutions that guarantee a clean and healthful environment for present and future generations as almost a form of generational discrimination. Let's hear what's going on in Montana. Joining us now to break down the trial so far and what can be expected in these closing arguments is Amanda Eggert, environmental reporter at the Montana Free Press. Hello from New York, Amanda. Welcome to WNYC. Thank you for doing this with us.

Amanda Eggert: Hello. Thank you so much for having me.

Brian Lehrer: I gave some basics there of what the allegations are from the youth-led climate activists. Do you want to flesh it out a little more?

Amanda Eggert: Sure, yes. Broadly speaking, the youth plaintiffs are arguing that the state has favored the fossil fuel industry when it comes to the energy landscape in Montana. They're arguing that, by allowing for the extraction of coal, the combustion of coal, and the withdrawal of oil and gas, that their constitutional rights are being harmed and that they're experiencing physical and mental, and even economic impacts as a result of the state's permissive approach to the fossil fuel industry.

Brian Lehrer: The Republican-led state government, from what I've read, has resisted having this lawsuit go to trial, or various versions of it, for something like a decade. Can you take us through the path that got us there a little bit?

Amanda Eggert: Sure. There are two plaintiffs. Their names are Badge and Lander Busse, who were part of the initial filing in 2011. In 2011, it went straight to the Montana Supreme Court, seeking relief and seeking a different climate policy framework for the state. The Montana Supreme Court essentially said, "We want to establish a record before we'll weigh in, so this properly belongs in the District Court." In 2020, the 16 youth plaintiffs took another swing at the climate litigation here and filed a case in the Lewis and Clark County Courthouse that is overseen by Judge Kathy Seeley.

Brian Lehrer: Your colleague Micah Drew with the Montana Free Press profiled Rikki Held, the Held in Held v. Montana. She is one of the 16 young people who filed the lawsuit in 2020. I gather that since she was the only plaintiff of age at the time, it's her last name that's attached to the landmark case officially. Here she is testifying last week about how climate change has impacted her family's livelihood.

Rikki Held: Neighbors lost cattle in the fire, and then we lost a few cattle just because they were so stressed trying to find water and also, with the drought, trying to find grass.

Brian Lehrer: Not great sound quality there, but she was saying, referring to a fire, "Neighbors lost cattle in the fire, then we lost a few because they were so stressed trying to find water and, with the drought, trying to find grass." Amanda, what was the context for that statement?

Amanda Eggert: Real quickly, I'll just note that Micah Drew is actually with the Flathead Beacon and Montana Free Press is partnering with the Flathead Beacon on this coverage.

Brian Lehrer: Thank you.

Amanda Eggert: Micah has been doing great work. Sorry. The context for Rikki's statement, Montana is--

Brian Lehrer: Is there a particular fire-- Go ahead.

Amanda Eggert: Montana is experiencing longer, more intense wildfire seasons as a result of climate change. We also had a really intense drought that, thankfully, we've largely pulled out of now. Those are two of the impacts that climate scientists say we can expect more of as a result of climate change, longer wildfire seasons that tend to be more destructive, and also, they're calling for an increase in the frequency of drought.

Brian Lehrer: Listeners, anybody involved in any youth lawsuit alleging damages to their future based on government policy that enables fossil fuels to keep fueling the climate crisis? We know Montana is at the cutting edge here right now with this trial taking place and closing arguments today, the first of its kind in the country to actually get into court and be heard by a judge in a trial setting, but this is waiting in the wings in many states. Any listeners in Montana or any listeners anywhere involved with something like this or just with a question about this on our climate story of the week? (212)-433-WNYC, (212)-433-9692. Are you looking at this in national context, Amanda?

Amanda Eggert: Absolutely. This is a huge case. It's really been stunning to see. Frankly, I've gotten calls from journalists in Italy who are interested about this, and I've gotten calls from journalists certainly and media outlets in other parts of the US as well, so lots of eyes on this case right now. It is a big case. I will also note that some of your listeners might be familiar with the Juliana v. United States case, and that's the federal equivalent to this Montana state case. That was first filed in 2015. It went up and down the court system, multiple levels, District Court, Ninth Circuit Court of Appeals, at one point, the Supreme Court weighed in. That was stalled for a couple of years, but the plaintiffs asked to change the kind of relief they're seeking.

That was about two years ago that they asked, and then, just within the last couple of weeks, the judge has said that they can amend their complaint and change the kind of relief that they're seeking. That case is now potentially back on a path to trial after being stalled for a while. That's certainly a notable development.

Brian Lehrer: To what degree is this explicitly generational? Obviously, the fact that whoever organized these 5-year-old-to-22-year-olds, the 16 of them who are technically the plaintiffs in this Montana case, are trying to drive home a message that climate change is going to be a threat to the future generations and the present young generation more than it is to older people who are alive today. Is there a legal case behind that? Do they make a legal argument that they're somehow, I don't know what? Generation discrimination or something like that in the way that we're pursuing fossil fuels still?

Amanda Eggert: They do. They argue that the harms are more pronounced for them because they essentially have a longer window or a longer timeframe into the future that they'll be dealing with climate change impacts, which are expected, of course, to get more extreme as the decades wear on. I think it's also interesting here that the constitutional right at issue is for a clean and healthful environment for present and future generations. I think that bolsters the plaintiffs' claims a little bit. I should also say that Montana also has a unique constitutional provision that gives minors, those under the age of 18, basically the same rights as adults. I understand that that's also quite unique to have that in a state constitution.

Brian Lehrer: I think we have a caller who's part of a group that filed an amicus brief in this case, and it's Nydia in Manhattan. You're on WNYC. Hello, Nydia.

Nydia: Hello. Thank you for taking my call. I'm with the Granny Peace Brigade. A number of years ago, when they were just starting the case, Julia Olson was looking to talk with groups who might support the case, and we filed an amicus brief. Thank you for having--

Brian Lehrer: You may be getting confused by the radio playing on the ten-second delay in the background there, but this is a real multi-generational coalition then. If the Granny's Peace Parade filed an amicus brief in support of these young people who are saying they're basically the subjects of environmental age discrimination.

Nydia: Absolutely. 'm 90 years old. We're all a bunch of old ladies, but we have seen the changes firsthand and these children need the time to enjoy the world that we have all had. So thank you, Brian. My love to Julia Olson, the children, and the work that they are pioneering. Thank you.

Brian Lehrer: Nydia, thank you. Thank you very much for calling in. How about that, Amanda? Have you seen any kind of multi-generational coalition, maybe link arms on the way into the courtroom or anything like that, your 16-year-olds with your 90-year-olds?

Amanda Eggert: Oh, I think attendance at the trial was really interesting. Every day when the plaintiffs walk into the courthouse, there are people cheering them on. Oftentimes they have signs, they're clapping, they're hollering, and I think a lot of the people who have been attending the proceedings in person are older and really committed to the climate cause I would say.

Brian Lehrer: Fred in Maplewood, you're on WNYC with sub-legal analysis it looks like. Fred, hi there. Thanks for calling in.

Fred: Thank you Brian for taking the call. Yes, I live in Maplewood. I'm a New York lawyer and I specialize in litigation. I'm very much an environmentalist and an activist. I just want to comment that I think the heavy lift in this case is one that relates to causation. We know that climate change is caused by events all over the globe and they may be able to prove by the preponderance of the evidence that Montana is contributing to that climate change, but to say that Montana's contributions caused the plaintiff's cattle to die rather than something, for example, that happened in China is a difficult theory to push legally in court. I wonder if your guest has a comment on whether the state has made that argument and how effective it's being presented.

Brian Lehrer: Thank you for that good focus legal question. Amanda, any idea?

Amanda Eggert: Well, the state is definitely making the argument that Montana's emissions on a global scale are "minuscule," and they've also tried to challenge the plaintiff standing to bring the lawsuit arguing that there is no kind of redress that the judge could authorize that would lead to a lessening of their specific harms. They're saying even if Montana completely changed its approach to energy regulating, these plaintiffs would still likely experience the same kinds of harms that they've reported. Yes, that definitely is part of the defense's response to the plaintiffs' filings I would say, and arguments in court as well.

Brian Lehrer: Is it clear that that's what the plaintiffs need to prove that Montana's specific contributions to global warming are responsible for damage to cattle from the fires or to future presumed lifestyle, quality of life, deficiencies based on overall global warming, that they have to prove that the state of Montana is sufficiently causing those as opposed to the whole world's use of fossil fuels?

Amanda Eggert: That's a really good question, Brian, and I haven't heard Judge Seeley weigh in on that question specifically. What I can say is that the plaintiff's attorneys have really hit home on this idea that, "Every ton of CO2 emitted into the atmosphere matters and it doesn't really matter where it's emitted, because our atmosphere has changed, it's going to come back around and affect conditions all over the globe." As to how Judge Seeley is taking that argument, I'm really not sure, but I'm very curious about that as well.

Brian Lehrer: Yes, and certainly in terms of harm, you paraphrased an expert witness, a psychiatrist, and author Lise Van Susteren who testified on Friday is saying that children born today-- So that's a very general group. Children born today are projected to experience seven times the number of extreme weather events compared to adults and other ways that climate change and psychological child development are connected. Here's another clip from the trial itself.

Again, this is not going to be great sound quality, but listeners, you may be able to make it out, and then I'll read you the text afterwards, but we do have audio from the courtroom. This is on psychological impacts that some of the young people who are the plaintiffs, say they are dealing with. This is 20-year-old Claire Vlases who's from Bozeman, Montana.

Claire Vlases: It's smokey. The world is burning. I can't go outside unless I want my lungs to feel like they're on fire and my nose to be full of smoke. That sounds like a dystopian horror film, but it's not a movie, it's real life.

Brian Lehrer: If you couldn't make it out what she said was, and New Yorkers, you're going to relate to this from like a week ago, she said, "It's smokey. The world is burning. I can't go outside unless I want my lungs to feel like they're on fire and my nose to be full of smoke. That sounds like a dystopian horror film, but it's not a movie, it's real life." Amanda, I don't know if you in Montana followed the news from New York last week, but that's exactly what people were saying here as the wildfires burning in Canada right now. The smoke from those came down here in a way that was unprecedented and everybody was talking about climate change and our lungs burning and feeling like we were in some kind of dystopian movie right here in New York City.

Amanda Eggert: Yes, I did see some of that. The photos from New York City the last couple of weeks, they've been pretty incredible.

Brian Lehrer: This is WNYC-FM, HDNAM, New York, WNJT-FM 88.1 Trenton, WNJP 88.5 Sussex, WNJY 89.3 Netcong, and WNJO 90.3 Toms River. We are a New York York and New Jersey Public Radio, and live streaming at wnyc.org. Just a few minutes left in our climate story of the week as we talk about the first of its kind trial involving young people in this case 16 plaintiffs ages five to 22 suing over the prospect of environmental destruction based on a state constitution. It's happening in Montana where the state constitution includes language guaranteeing a clean and healthful environment for present and future generations. Our guest is Amanda Eggert, environmental reporter at the Montana Free Press. Before we run out of time, the language in this constitution and many constitutions really on many topics is very broad.

A clean and healthful environment, well, that's very broad. For present and future generations, that's obviously very broad and people who oppose clauses like those going into constitutions or into laws at all always say, it's going to happen when we put something that general in there, it's going to be a lawsuit generating machine because groups are going to bring suit over and over and over again to say, "This particular policy violates the promise to a clean and healthful environment. This particular policy violates the promise to a clean and healthful environment," and then judges and juries are going to have to sort out what specific policy that causes how much pollution rises to the level of violating the constitution, so I guess the legal question here is, is there any precedent or are they totally breaking new ground by trying to make this case based on that clause?

Amanda Eggert: There is some relevant case law for that constitutional language. I should say that the right to a clean and healthful environment is frequently cited in legal filings from groups like the Sierra Club and the Montana Environmental Information Center and others that are really active in environmental issues in Montana, but the judges don't typically rule on the constitutional questions presented by that language. It's only happened a few times in the more than 50 years since that was introduced or since that constitution was adopted in Montana.

Brian Lehrer: Who will decide? Is it just the judge or is there a jury?

Amanda Eggert: This was just a bench trial, so this is on Judge Kathy Seeley's docket. Yes, she'll decide and I should also say that there's basically no question that it'll be appealed either way. Regardless who she rules in favor of the other group will likely almost immediately appeal the decision.

Brian Lehrer: So no resolution likely to come in the next few days, but certainly a big step one way or another as closing arguments are today in this first-of-its-kind generational lawsuit regarding climate change happening in Montana. Amanda Eggert is the environmental reporter at the Montana Free Press, and that's our climate story of the week which we do every Tuesday here on the Brian Lehrer Show. Amanda, thank you so much for giving us your time today.

Amanda Eggert: Thanks so much for having me on. This was a really good time, a really interesting discussion.

Brian Lehrer: Thanks.

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