Lessons in Advocacy From Held v. Montana

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BY LAUREN E. SANCKEN

On Aug. 14, 2023, in Held v. Montana, Judge Kathy Seeley ruled in favor of 16 youth plaintiffs in the first ever¹1 Matthew Grabianski, “What Held v. Montana Immediately Offers for Constitutional Environmental Rights,” Geo. Envtl. L. Rev. Online 1 (2023); Matthew Brown and Amy Beth Hanson, “Youth environmentalists bring Montana climate case to trial after 12 years, seeking to set precedent,” Associated Press, June 10, 2023, https://apnews.com/article/youth-climate-trial-montana-18e301a701fcf4badc904984455406fc. constitutional climate change lawsuit to go to trial in the United States.²2 Held v. Montana, No. CDV-2020-307 (1st Dist. Ct. Mont., Aug. 14, 2023), available at https://climatecasechart.com/wp-content/uploads/case-documents/2023/20230814_docket-CDV-2020-307_order.pdf. Historically, constitutional climate cases have been dismissed before trial on grounds that plaintiffs lack standing or the political question doctrine applies. Locally, a majority of the Washington Supreme Court recently denied review of Aji P. v. Washington,³3 16 Wn. App. 2d 177, 480 P.3d 438, review denied, 198 Wn.2d 1025 (2021). a youth climate case, upholding the Washington Court of Appeals dismissal of the case on grounds that the court could not provide a remedy to plaintiff’s climate harms. In dissent, Chief Justice González and Associate Justice Whitener wrote: “The court should not avoid its constitutional obligations that protect not only the rights of these youths but all future generations who will suffer from the consequences of climate change.”

The default posture of most judicial bodies in the United States deciding these cases has been judicial restraint. But Montana was different.

The First Judicial District Court of Montana ruled that the state had violated the plaintiffs’ constitutional rights to “a clean and healthful environment” as well as rights to seeking safety, health, and happiness and individual dignity, guaranteed by Montana’s constitution and granted the youth plaintiffs’ request for declaratory relief. The court specifically declared as unconstitutional and enjoined Montana’s environmental laws, because they prohibited its state agencies from considering climate change or greenhouse gas emissions when issuing permits for fossil fuel activities and removed “the only preventative, equitable relief available to the public and MEPA litigants.”⁴4 Id. The court found that plaintiffs had established all the elements of standing, and that “[e]very additional ton of GHG [greenhouse gas] emissions exacerbates Plaintiffs’ injuries and risks locking in irreversible climate injuries.”⁵5 Id. at 87.

This column focuses on how effective advocacy by plaintiffs’ counsel surmounted the usual obstacles and resulted in a ruling in the plaintiffs’ favor.

1. Seeking a Narrow Remedy Can Have a Big Impact.

The issue before the court in Held was narrowly presented. The plaintiffs asked the court to enjoin the state’s environmental laws which, they argued, violated Montana’s constitution by barring state agencies from considering greenhouse gas emissions and climate impacts in issuing permits. Montana’s constitution grants an enforceable right to a “clean and healthful environment” by making explicit that “[t]he state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations.”⁶6 Mont. Const. art. IX, § 1(1). The remedy in Held was to declare the environmental laws unconstitutional, not to declare all state actions that contribute to climate change unconstitutional, or to mandate that the Legislature act to reduce emissions. Therefore “the decision illustrates the value of targeted challenges to specific laws that seek a remedy squarely within a court’s remedial authority.”⁷7 Sam Bookman, “Held v. Montana: A Win for Young Climate Advocates and What It Means for Future Litigation,” Harvard Law School Environmental & Energy Law Program (Aug. 30, 2023), available at https://eelp.law.harvard.edu/2023/08/held-v-montana/.

2. Using Trauma-Informed Lawyering Principles Can Amplify Your Client’s Story.

In addition to presenting a narrowly tailored legal argument, the attorneys who represented the plaintiffs in Held effectively tailored their entire approach by applying principles of trauma-informed lawyering to paint a vivid picture of the many climate harms experienced by youth plaintiffs. Trauma-informed advocacy has four main characteristics: “(1) identifying trauma, (2) adjusting the attorney-client relationship, (3) adapting litigation strategies, and (4) preventing vicarious trauma.”⁸8 Sarah Katz and Deeya Haldar, “The Pedagogy of Trauma-Informed Lawyering,” 22 Clinical L. Rev. 359 (2016). And “[t]he hallmarks of trauma-informed practice are when the practitioner puts the realities of the client’s trauma experiences at the forefront in engaging with the client, and adjusts the practice approach informed by the individual client’s trauma experience.”⁹9 Id.

The complaint in Held described the climate impacts felt by each youth plaintiff, including the negative health exposures to heavy wildfire smoke, flooding, and heat, as well as the environmental, cultural, and economic impacts of a changing climate. It described the sense of despair, anxiety, and suffering experienced by each youth plaintiff. Based on those facts, as well as expert testimony about the negative pediatric impacts of climate change, the court in Held directly tied the harms of climate change to human health and used this connection to find that the youth plaintiffs had standing—a doctrine that has long been an insurmountable obstacle for climate-change plaintiffs. By implementing principles of trauma-informed advocacy, lawyers can help tell their clients’ stories persuasively, and in a way that might provide a pathway toward their healing.

3. Scientific Evidence Can Be Presented as Judicially Manageable.

In response to climate-change litigation, many government entities have argued that there are no judicially manageable standards to decide when a government’s action (or inaction) has infringed a plaintiff’s fundamental rights. Held, however, is a breakthrough in showing how scientific evidence, presented effectively, can supply courts with judicially manageable standards in fundamental rights cases. The plaintiffs presented an extensive overview of climate science as well as expert testimony from scientists, medical professionals, and environmental policy-makers to show evidence of climate impacts, both globally and locally in Montana.¹⁰10 See Pls.’ Proposed Findings of Fact and Conclusions of Law, Held v. Montana, No. CDV-2020-307 (1st Dist. Ct. Mont., July 5, 2023), available at https://climatecasechart.com/wp-content/uploads/case-documents/2023/20230705_docket-CDV-2020-307_findings-of-fact-and-conclusions-of-law.pdf. The court found the experts well-qualified and used the evidence they presented about climate change to determine that Montana’s environmental statutes violated plaintiffs’ constitutional rights. Specifically, the court found that greenhouse gases, particularly carbon dioxide, were increasing in concentration rapidly and that “Montana is heating faster than the global average because higher latitudes are heating more quickly.”¹¹11 Id. at 21. The court went on to validate that the most critical metric for determining the amount of global heating and climate change occurring is Earth’s energy imbalance (EEI), and the current imbalance is due to “anthropogenic changes in the environment, not natural variability.”¹²12 Id. at 23.

The court then applied those findings to the state’s permitting scheme and determined that the state:

can alleviate the harmful environmental effects of Montana’s fossil fuel activities through the lawful exercise of their authority if they are allowed to consider GHG emissions and climate change during MEPA review, which would provide the clear information needed to conform their decision-making to the best science and their constitutional duties and constraints, and give them the necessary information to deny permits for fossil fuel activities when inconsistent with protecting Plaintiffs’ constitutional rights.¹³13 Id. at 88-89.

While Held is a single case centered on a state-based environmental claim, it demonstrates how an effective, trauma-informed approach to advocacy can move a court to decide constitutional climate issues when presented narrowly and manage complex scientific evidence to remedy infringements of fundamental rights.

NOTES

1.    Matthew Grabianski, “What Held v. Montana Immediately Offers for Constitutional Environmental Rights,” Geo. Envtl. L. Rev. Online 1 (2023); Matthew Brown and Amy Beth Hanson, “Youth environmentalists bring Montana climate case to trial after 12 years, seeking to set precedent,” Associated Press, June 10, 2023, https://apnews.com/article/youth-climate-trial-montana-18e301a701fcf4badc904984455406fc.

2.    Held v. Montana, No. CDV-2020-307 (1st Dist. Ct. Mont., Aug. 14, 2023), available at https://climatecasechart.com/wp-content/uploads/case-documents/2023/20230814_docket-CDV-2020-307_order.pdf.

3.    16 Wn. App. 2d 177, 480 P.3d 438, review denied, 198 Wn.2d 1025 (2021).

4.    Id.

5.    Id. at 87.

6.    Mont. Const. art. IX, § 1(1).

7.    Sam Bookman, “Held v. Montana: A Win for Young Climate Advocates and What It Means for Future Litigation,” Harvard Law School Environmental & Energy Law Program (Aug. 30, 2023), available at https://eelp.law.harvard.edu/2023/08/held-v-montana/.

8.    Sarah Katz and Deeya Haldar, “The Pedagogy of Trauma-Informed Lawyering,” 22 Clinical L. Rev. 359 (2016).

9.    Id.

10.  See Pls.’ Proposed Findings of Fact and Conclusions of Law, Held v. Montana, No. CDV-2020-307 (1st Dist. Ct. Mont., July 5, 2023), available at https://climatecasechart.com/wp-content/uploads/case-documents/2023/20230705_docket-CDV-2020-307_findings-of-fact-and-conclusions-of-law.pdf.

11.  Id. at 21.

12.  Id. at 23.

13.  Id. at 88-89.