What Do We Do When Lawyers Play Being Scientists and Politicians and Affirm Corruption and Insanity?

I get much of my business through lawyers and thoroughly enjoy working with them, but lawyers are prone to the fatal conceit; the false idea that being smart in one thing makes them smart in all things. No better example of this is the decision of the Montana Supreme Court to affirm a lower court decision in a lawsuit brought by a bunch of mush-for-brains kids arguing the state had to consider global warming in granting oil and gas permits.

Here is how one news outlet reported it:

The Montana Supreme Court prepares to hear oral arguments in the Held v. Montana case on July 10, 2024.

The Montana Supreme Court on Wednesday upheld a district court ruling in the nation’s first constitutional climate change trial, affirming that the youth plaintiffs have a “fundamental constitutional right to a clean and healthful environment” while revoking two Montana statutes.

The 70-page decision, authored by Chief Justice Mike McGrath, comes 16 months after Lewis and Clark District Court Judge Kathy Seeley ruled in the landmark Held v. Montana lawsuit, explicitly stating that the state’s greenhouse gas emissions are “proven to be a substantial factor in causing climate impacts to Montana’s environment, and harm and injury to the youth plaintiffs.” Seeley’s decision also rolled back two laws enacted by the 2023 legislature that changed the Montana Environmental Policy Act.

The state immediately appealed the decision to the Montana Supreme Court, which heard oral arguments in the appeal in July. The court found in a 6-to-1 decision that Montana’s constitutional guarantee of a “clean and healthful environment” includes a stable climate system, “which is clearly within the object and true principles of the Framers inclusion of the right.”

“Plaintiffs showed at trial — without dispute — that climate change is harming Montana’s environmental life support system now and with increasing severity for the foreseeable future,” the order states. “Plaintiffs showed that climate change does impact the clear, unpolluted air of the Bob Marshall wilderness; it does impact the availability of clear water and clear air in the Bull Mountains; and it does exacerbate the wildfire stench in Missoula, along with the rest of the State.”

The six-justice majority found the law which limited analysis of greenhouse gas emissions during environmental reviews violates the Montana Constitution’s “right to a clean and healthful environment,” and enjoined the state from acting on it.

When I read something like this my first thoughts always run to the background of the deciders and the rationale they used.

Looking at the first matter, it turns out the author of the 6-1 decision, Mike McGrath, was a Democrat politician before being elected to Montana’s Supreme Court. He once ran for governor. He is also retiring as of this year. How convenient.

The other justices who voted with McGrath included Beth Baker, Laurie McKinnon, Ingrid Gustafson, Jim Shea, and Dirk Sandefur. All but McKinnon were Democrats before joining the Supreme Court. McKibben’s prior political affiliation, if any, is unknown.

The sole justice to vote against the majority was Jim Rice, a Republican and previous political opponent of Mike McGrath in the 2000 race fort Attorney General.

So, the makeup of deciders was decidely Democrat. That explains a lot and it is a sad fact of life is that Democrats regularly get elected to court positions in Republican states because those elections are theoretically non-partisan, and, therefore, mostly uninteresting to voters who simply don’t pay attention. Advertisements tend to focus on non-issues and Republicans stick to the rules, while Democrat candidates routinely skirt them, so it’s no surprise Democrats get elected more often, which is the case in Pennsylvania, for sure.

Given this background, the ruling in this case is no surprise. The full decision is accessible here and is about as bad as it gets. You don’t need to go further than the first two paragraphs to see just how bad (emphasis added and citations deleted):

The world is experiencing a fast rise in temperature that is unprecedented in the geologic record, with the average global temperature increasing by 2.2°F in the last 120 years. Montana is heating faster than the global average and the rate of warming is increasing. Overwhelming scientific evidence and consensus shows that this warming is the direct result of greenhouse gas (GHG) emissions that trap heat from the sun in the atmosphere, primarily from carbon dioxide (CO2) released from human extraction and burning of fossil fuels such as coal, oil, and natural gas. These emissions accumulate in the atmosphere and may persist for hundreds of years—causing atmospheric CO2 levels to increase from 280 parts per million (ppm) in pre-industrial times to above 424 ppm today.

These emissions result in extreme weather events that are increasing in frequency and severity, including droughts, heatwaves, forest fires, and flooding. These extreme weather events will only be exacerbated as the atmospheric concentration of GHGs continues to rise. Projections indicate that under a business-as-usual emissions scenario, Montana will see almost ten additional degrees of warming by 2100 compared to temperatures in 2000. By 2050, Montana will have 11–30 additional days per year with temperatures exceeding 90 degrees and a similar loss of days below freezing. Montana has already seen (and will increasingly see) adverse impacts to its economy, including to recreation, agriculture, and tourism caused by a variety of factors including decreased snowpack and water levels in summer and fall, extreme spring flooding events, accelerating forest mortality, and increased drought, wildfire, water temperatures, and heat waves.

This all sheer nonsense, of course. It is merely the narrative of climate extremists. But, there was a dissent filed by Jim Rice (starting on page 52), who noted the following:

The Court emphasizes the breadth of the Constitution’s environmental protections, but that, of itself, does not create a case or controversy. Many constitutional provisions are considered to be “broad.” All of the environmental cases relied upon by the Court involved a government action that operated upon, and thus directly impacted, the subject plaintiffs, who brought an action in each of those cases to challenge the particular government action affecting them. Here, as further analyzed below, there is no such operative government action—no project, no application, no decision, no permit, no enforcement of a statute—which directly impacted the Plaintiffs. Rather, the only government action raised here is an enactment of a statute that could operate to affect Plaintiffs if applied in an actual case. The District Court struck down these statutes as unconstitutional, even though the statutes had never operated upon the Plaintiffs, and then struggled to define what this result meant, because there was no actual pending dispute to which its ruling could attach. Consequently, instead of a “decree of conclusive character,” the District Court entered a floating judgment of generic unconstitutionality.

Well, that’s a decent argument, but Rice gave the game away at the outset by agreeing with the totally phony climate extremist narrative.

Oddly enough it was a member of the majority, Justice Dirk Sandefur, who best articulated the opposition. He only voted with the majority for one resaon articulated at the end of separate offered in full below:

For the following reasons only, I concur at bottom with the Court’s ultimate issue holdings in this case.

I first concur with the Majority on the easy question of whether Mont. Const. art. II, § 3 (right to “clean and healthful environment”), generically includes the right to a stable climate system that sustains human lives and liberties. However, the harder and more complex question unaddressed by the Majority, and the conspicuously absent particularized causation evidence in this case, is how that fundamental Montana constitutional right possibly can or should apply to restrictive MDEQ MEPA-compliance review of the gubernatorial energy policies originally at issue below, not to mention particular projects that otherwise comply with all applicable air quality review and permitting standards and requirements of the controlling federal Clean Air Act and subordinate Montana Air Quality Act regulatory scheme, in the face of the very real and uniquely complex global warming problem plaguing the entire planet, not just the slice of sky over Montana.

In regard to the indiscriminately universal global warming problem, it is undisputed and indisputable that even the complete elimination of all fossil fuel related human activities in the State of Montana will not, and simply cannot, appreciably mitigate or reduce the only generalized injuries claimed by Plaintiffs, and which are common to all Montanans and inhabitants of planet Earth, as consequences of global warming. To that point, the undisputed, but inconvenient, record facts in this case are:

1. atmospheric carbon dioxide (CO2) loading resulting from fossil fuel burning is the most significant source of the human-caused greenhouse gas (GHG) emissions attributed by scientists as the most significant cause of the accelerated global warming currently occurring on this planet;

2. as of 2019, however, fossil fuel related human activities in Montana contributed only “about 32 million tons” of additional atmospheric CO2 emissions into the global climate system;

3. the 32 million tons of annual atmospheric CO2 loading attributable to fossil fuel related human activities in Montana is less than 1% of the total annual worldwide atmospheric CO2 loading; and thus

4. even complete elimination of the total annual atmospheric CO2 loading attributable to fossil fuel related human activities in Montana will not and simply cannot appreciably mitigate or reduce, much less avoid, the only generalized injuries experienced by Plaintiffs as a consequence of global warming.

The overly simplistic focus of Plaintiffs and the Majority of this Court on the undisputed and indisputable fact that global warming “is harming Montana’s environmental life support system now and with increasing severity for the foreseeable future” is no more than a political and public policy statement of the obvious. As such, it further serves as a smokescreen diverting attention away from those inconvenient facts of record and the other similarly indisputable fact: accelerated global warming caused by fossil fuel burning and other human sources of greenhouse gases is a highly complex global problem, any solution or meaningful mitigation to or of which lies exclusively in the domain of federal and international public policy choices and cooperation, rather than in a flashy headline-grabbing rights-based legal case in Montana.

Second, I generally agree with the State that the complete lack of particularized causation evidence in this case calls into serious question the threshold jurisprudential standing of the Plaintiffs to assert the broad-scope legal claims for relief asserted and litigated in the district court below. I further disagree with and reject the Majority’s strained and thinly-veiled attempt to distinguish the pertinent principle recognized in Bitterrooters for Planning, Inc. v. Mont. Dep’t of Env’t Quality (holding in pertinent essence that MEPA did not require MDEQ review of adverse environmental impacts resulting from causes-in-fact beyond the authority of MDEQ to regulate under existing state or federal and environmental protection laws), based on patently inaccurate or inconsequential distinctions. However, I nonetheless agree with the Majority at bottom that Plaintiffs had minimally sufficient standing under our liberal jurisprudential standing requirements to assert the claims at issue, and that the recent legislative attempts at issue to pare-back the generally required scope of MEPA review are unconstitutional in violation of the Mont. Const. art. II, § 3, right to a “clean and healthful environment.”

I finally wholeheartedly concur with the Majority holding that the District Court did not abuse its discretion in denying the State’s patently ridiculous and overly-intrusive request for court-ordered psychological evaluations of a selected eight Plaintiffs in this case. For the foregoing reasons only, I thus concur at bottom with the Court’s ultimate issue holdings in this case.

I don’t agree with everything Sandefur says, nor his ultimate vote with the majority, but he offers a big dose of common sense and practically, which is other missing from both the majority opinion and the dissent. It is that we can argue about global warming but we have to keep things in perspective. We can’t be ridiculous and that’s where the majority went. The big lesson of this case is that vague Constitutional amendments that exist in both Montana and Pennsylvania are an open door to the tyranny of special interests if not held in check by courts and when courts sell out and affirm corruotion and insanity we are in deep trouble.

#Pennsylvania #Montana #Climate #Lawsuit #Kids

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