By David Wojick
Much ado is being made from the supposed win of a kid’s climate lawsuit in Montana. The alarmists call it a victory, the skeptics a tragedy, but it is neither. What was won is almost funny, while the big ask was in fact denied. The climate kids won a little, but lost a lot.
On the win side the judge merely ruled that the Montana law forbidding consideration of GHG emissions in permitting was unconstitutional. How it is considered is up to the agency or legislature. This need not slow down or stop any project.
The Montana constitution says there is a right to a healthful environment. Alarmism says emissions are harmful which all Courts to date have bought, including this one. So given the possible harm, one cannot simply ignore emissions which the law said to do. Hence the decision to kill the law.
I had no idea there was actually a law forbidding agencies from even talking about emissions. That kind of gag order strikes me as preposterous. Killing it merely takes us back to business as usual. For example an agency could simply say that the emissions associated with a project are too small to have a discernible impact.
This decision is in no way a victory for alarmism. There might be one pesky problem, however. The Court Order says that all actions taken under the unconstitutional law are themselves unconstitutional. Presumably this applies to every permit granted since the law went into effect. It might be interesting to see how Montana handles this, if at all.
Nor is this decision a precedent for other States, except those with similarly strange gag laws, which I doubt are many, if any. So by and large it is a very small win that goes nowhere. Works for me.
What is not reported is what was rejected. The kids asked the Court to require Montana to make and implement an emissions reduction plan, all under Court supervision. The Court properly rejected that monster request.
The reason given for the rejection is correct and becoming the standard. This is that emission reduction is a legislative decision, not a judicial one. As far as I know every failed kids climate suit has been thrown out on similar grounds.
This is the big loss that is not being reported. In realistic terms this suit went nowhere important.
Even the small win, killing the GHG gag law, is based on these two features of the Montana constitution:
Its A2 (Inalienable rights) §3 specifically includes “the right to a clean and healthful environment.”
Its A9 (Environment and natural resources) §1 states “The state shall maintain and improve a clean and healthful environment for present and future generations.”
These are very big hooks that the kids easily hung their suit on. Mind you I do see how the folks in Montana get an inalienable right to be free of large hail, damaging wind, lightning and drought, or grasshoppers and ticks, but I am not a student of their constitution.
That the judge opted for alarmism is no surprise and certainly not big news. If there is any Court that has rejected AGW I would love to hear about it. At the federal level all of the legal challenges to EPA’s ill conceived Endangerment Finding have been rejected.
Apparently Montana did not fight the claims of alarmism. Leading skeptical scientist Judy Curry was scheduled to be an expert witness, even undergoing 8 hours of adversarial deposition. Then the defense decided not to go that way. That interesting story is told here:
To sum up the kid’s lawsuit won a small victory over a strange law based on a wacky constitutional provision. They lost the big one, asking the Court to mandate and enforce emission reductions. Not much to see here.
David Wojick, Ph.D. is an independent analyst working at the intersection of science, technology and policy. For origins see http://www.stemed.info/engineer_tackles_confusion.html
For over 100 prior articles for CFACT see
http://www.cfact.org/author/david-wojick-ph-d/
Available for confidential research and consulting.
What are the emissions from Montana fireplaces, construction of any kind, truck hauling, school buses, schools, hospitals, and state government offices? This is in addition to the state and local revenues generated by these taxable activities for the provision of services–that produce emissions.
Not to forget, diesel-powered trains hauling supplies across, to and from (this includes an export called coal) Montana.
Last I checked you could get terminated in Florida for talking about climate change while at work for the State even if your job was climate and environment. Its caused some interesting problems at the top level of government too.
We’re actually the most emissions/effluent sensitive state in the nation both environmentally and industrially with one of the broadest range of chemical and biochemical industries as well as natural and agricultural biological range on Earth down here. The main problem we face is incompetence not malfeasance.
I utterly agree that some law banning even the consideration of emissions from being a part of determining placement and permits is one of the dumbest things I’ve ever heard of.
The bill discussed addressed: “ The version that passed the Legislature April 28 prohibits the state from analyzing the effects of greenhouse gas emissions and “corresponding impacts to the climate” — both within and outside the state’s borders — in its permitting decisions.” was passed this spring and was not a part of the original Held V Montana lawsuit. It must have been added at the last second for the judge to rule it unconstitutional. It was envisioned as a block to the lawfare that is used to disrupt many Montana projects. The discouraging part of the trial for me was the assumption of AGW and CAGW that was never challenged and the use of the term “Climate Event” by every prosecution witness with no definition.
Interesting because without that law the kids would have lost everything.
Like I said in the comments in prior articles it was conservative virtue signaling. I live in MT, am a libertarian and agree with efforts to slash the regulatory state by Montana R’s, who had a veto proof majority (the guvnah is a decent one, also R). R legislators here and in Red states like WYO and NoDak like to express their outrage at Blue State nuttiness by passing iffy laws they think their voters agree with. Though I tend to agree with their underlying principles at times it can be counter productive when not well thought out like this case. The only big project in the works now is a natgas peaker plant in the midst of the years long agency permitting/legal song and dance and this ruling means diddly. The proverbial “sound and fury” as the author surmises.
Even if the state’s loss was a foregone conclusion, the public interest would have been better served if a full defense had been mounted, one which addressed each and every point of the lawsuit.
The countering information would then have been on the official public record for further use in any future public policy debates over the merits of proposed anti-carbon regulatory actions.
Curry discusses the lengthy prep for then last minute abandonment of the skeptical defense at length as she was there. Maybe the Judge brokered a deal, or let them know it would not fly. Or the Governor pulled the plug for political reasons.
We may never know.
I don’t think this was the right venue for a full climate rebuttal such as Curry helped prepare. The reason is the wording of Montana state constitution A9§1 ‘present and future generations.’ That covers an awful lot of future territory.
you can easily show there has been no climate harm the past 40 years. You might be able to extrapolate to the next 40. But to future generations after that?
A9§1(2) provides for legislative administration ….
Appears as a timeline/malleable constitutional provision … given strictly to the legislature to manage.
(We won’t know what’s in it until we adopt it … or some such pelosi crap. ‘cept this time the shoe is on the other foot)
Before moving into the nuclear industry, I spent a year in Montana in the mid-1970’s working environmental compliance support for the coal mining industry.
It was recognized at that time that the 1972 amendment to the Montana constitution was intended to support and encourage environmental litigation mischief in the courts.
In the fifty years since the 1972 amendment was adopted, litigation mischief has had some bit of success in slowing what might otherwise have been a fairly aggressive expansion of the fossil fuel extraction industry in Montana.
In saying the Montana AG should have offered a comphrehensive set of counter-arguments to the plaintiff’s claims, I’m not looking to control what future generations decide to do in regard to the alleged dangers of climate change.
I live in the here and now. My outlook window extends no more than ten years into the future.
Future generations can well take care of themselves without my help. In the here and now, it would have been useful to have a complete set of counter-arguments on the public record for easy reference by those who are opposed to the mindless pursuit of an anti-carbon agenda.
The prevailing environmental attitude during the early ’70’s
in MT as I recall was formed in large part to the state being
run as a resource colony by the Anaconda Company and other
mine and resource extraction operations. The
worst air pollution in the entire country the year that the EPA
was formed was in tiny little ol Garrison MT. I know a number
of folks that were there and remember how it was very well. It
was horrific..
https://fluoridealert.org/news/the-town-that-refused-to-die/
The list of environmental damages in Montana is quite long
and the people have suffered immensely. Seriously. W.R Grace
in Libby killed literally thousands of people, and the upper level
management knew fully well what they were doing. The “Con’Con” as
it was called in Helena was based on the opposition to this
pollution and corporate abuse. And that is what is behind much of
the enviro climate movement today.
It seems that the pendulum has swung back to the
other side and has gone too far from this. It is said that the
pendulum is not in the center for very long.
“the right to a clean and healthful environment”
appears to have nothing to do with climate crisis claims
CO2 emission is entirely consistent with this right.
CO2 is a harmless gas with no health impacts. It is completely clean.
We breathe it out quite naturally.
Plants depend on it. It is the “stuff of life”
You and I may think CO2 is harmless but EPA says it is harmful and the Court agrees with them. Killing that law follows directly. There is really nothing new here.
EPA said CO2 was harmful because IPCC said so. The flaw is not Mass v EPA (sue and settle), correctly decided by SCOTUS as EPA MAY decide harmful within 4 corners of CAA. It is in the CAA definition of an air pollutant as that which pollutes, with no definition of ‘pollutes’.
The permanent fix is to win House and Senate in 2024, then have Trump 47 amend CAA pollution definition to exclude CO2. SO2 bad, particulates bad, CO2 not bad. A T47 legacy as enduring as T45 SCOTUS.
Per the Montana Constitution it is is all about a clean & healthful environment IN Montana. Not in Massachusetts, or other regions, or the world.
Administration of the ‘clean & healthful’ duties is delegated to the Montana legislature. Question is: ‘does “administration”, in the context of the Montana constitution include policy directive?’
The question then becomes whether this small win for alarmists will give weight to other lawfare being brought in US states and other countries?
Don’t think so. Most other venues do not have an obvious hook like Montana’s state constitution. Have sent Charles this pm a revised ‘Climate lawfare’ post (original per his request, revisions per his request to avoid terse ‘inside baseball’ stuff. So 1.25 pages went to 2.5 pages).
The actual decision may not mean much but, don’t dismiss the symbolism. Symbols can have a powerful affect.
The right to a clean and healthful environment is a weird thing to put in a constitution. A constitution is best thought of as rules that grant and restrict government powers. Nebulous happy-happy, joy-joy phrases like “clean and healthful environment” are the kinds of mantras that hippies chanted on communes. The problem is that it’s not clearly defined and open to interpretation as we’ve just witnessed. Keep your constitutions clear, concise, and focused on what government can and can’t do.
the writing is on the wall people.
the coming generations will not listen to you. or vote fr your agenda.
No one pays attention to graffiti anymore, least of all Peter and the Wolf graffiti
So you are saying coming generations are going to be dumber than previous generations?
The coming generations will do what all humans have done: Preserve and better their standards of living and those of their children. The moment when any ideology insists that they live poorer and meaner lives the majority will reject that ideology. It appears we are rapidly approaching that condition in respect to the climate change scam.
We’re not there yet but all the signs point to a pretty bad economic outcome of current governmental climate change policies. Without a fairly significant improvement in the U.S. economy over the next 12 months The Big Guy 10% Joe “Biden Brand” Brandon’s reelection chances are apparently slim. But your mileage may vary and I can’t predict beyond my next bowel movement.
David, you said, “Mind you I do see how the folks in Montana get an inalienable right to be free of …, but I am not a student of their constitution.”
Did you mean, “… I do not see how …?”
The Montana Constitution does NOT state: “The state shall maintain and improve a clean and healthful environment for present and future generations.”, as stated in this posting. The Montana Constitution, Article lX (Section 1), in it’s entirety, is as follows:
Section 1. Protection and improvement.
(1) The state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations.
(2) The legislature shall provide for the administration and enforcement of this duty.
(3) 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.
The legislature is to provide for the administration & enforcement that ensures “the state and each person shall … (do stuff ) … in Montana for present and future generations.”
The legislature, through it’s administrative discretion, is to manage this stuff. The stuff that the legislature requires, “in Montana”, will be binding on both the State and Each Person.
That is exactly what the legislature did. They looked at the trade-offs relating to livelihood of the people in the state and the potential impact of CO2 (and other GHG’s) on the environment and implicitly said ‘It is a waste of time, capital, & resources to review permits with respect to a parameter that presents a known incidental and negligible impact within our State … we are not doing that’.
(If they are forced to ‘do that’, that which strictly assess and regulates CO2 across the board with respect ‘Each Person’ and ‘the State’, they will be left with a lonely hope in the bottom of the jar. But they don’t have the Pandora excuse of curiosity, simply bored useful idiots looking for fame).
Whaat!?? Montana doesn’t have to come and clean up my room??
Hate that, I thought we won?! – Climate Kids
Don, it is unclear where the Constitutional wording deviates into your interpretation of it’s meaning. You might want to employ an editor.
Too late now.
The paragraph that references ‘stuff’ is my beginning & is not part of the constitution 🙂
But i do see what u mean
Thanks for the posting, though.
A “clean and healthful environment for present and future generations” would include abundant plants and trees. What enviro-activist advocates for the opposite, plants and trees starved of nutrition? CO2 provides a major part of that nutrition. If these kids had any basic knowledge of science, they would demand Montana industries to put out more CO2.
Just remove all fossil fuels from Montana – 24 hours later, they’ll be screaming for them back