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.