“Moments of Crushing Guilt”


A bench trial began on Monday in Helena before Judge Kathy Seeley of the Montana First Judicial District Court.

In Held v. State of Montana, the question now is whether a statute barring state agencies from considering impacts to the climate system infringes on the inalienable rights established in the state constitution to “a clean and healthful environment” and for “adequate remedies to prevent unreasonable depletion and degradation of natural resources.”

The state and each person shall maintain and improve a clean and healthful environment . . . for present and future generations, [t]he legislature shall provide for the administration and enforcement of this duty, and [it] shall provide adequate remedies for the protection of the environmental life support system from degradation. . . .

Constitution of Montana Article IX

I watched the proceedings online; you can too over the next few days by following the link here.

Originally, in Held, the 16 “youth Plaintiffs” sought more, indeed much more, including a Court order compelling the State (Complaint of 03/13/2023) to develop and oversee “a remedial plan or policies to effectuate reductions of GHG emissions in Montana.” However, by its Order of Aug. 4, 2021, the Court determined that such injunctive relief “would require the court to make or evaluate complex policy decisions entrusted to the discretion of other governmental branches” in violation of the political question doctrine.

Still, the Court allowed the case to proceed to determine whether it should issue “declaratory relief.” In particular, the Court decided to determine the constitutionality, after trial, of a “climate exception,” as Plaintiffs termed it, imposed by the Legislature upon Montana’s Environmental Policy Act (MEPA). Indeed, this “MEPA Limitation,” as the Court prefers to call it, is breathtaking in its sweep. Per an amendment signed into law on May 10, 2023, state agency environmental reviews “may not include an evaluation of greenhouse gas emissions and corresponding impacts to the climate in the state or beyond the state’s borders.”

The Montana climate exception, indeed, is breathtakingly sweeping.

Plaintiffs in the case range in age from 5 to 22 years old. They are represented by attorneys with Our Children’s Trust, the Western Environmental Law Center, and the Montana-based McGarvey Law firm. In a pretrial order, the Montana court tasked Plaintiffs, and their counsel, with demonstrating that the asserted injuries are real, and that “a favorable judgment will influence the State’s conduct and alleviate Plaintiffs’ injuries or prevent further injury.” Now, at trial, the Plaintiffs are trying to do just that. I found the testimony of one of them, Grace, to be especially moving, even unnerving. Perhaps the judge did too.

Grace is a 19-year-old sixth-generation Montanan from Missoula. On the witness stand, she explained that while in high school she had worked on community environmental initiatives, including those aimed at recycling and plastics-reduction. Now, as a college student, she hoped to further develop her skills to combat the climate and environmental crises. As she continued, it became clear that, even at her tender age, Grace feels the weight of the world. Indeed, she recounted, in open court, some of her personal concerns, including whether, from a moral perspective, given the planet’s marked deterioration, she could even bear to bring her own children into it.

It became clear that, even at her tender age, Grace feels the weight of the world.

The young witness also observed that she likes to explore the natural world with her friends and family, illustrating her point with photos she had taken while hiking – including one of a rapidly melting snowfield in nearby Glacier National Park. Grace added that she really does like to have fun, that is, to enjoy life, but that her joy gets interrupted by the recurring thought that she is not doing enough to arrest the climate crisis. She referred to these interruptions as “moments of crushing guilt.”

One can search for equally damning indictments of our collective determination to hide our heads in the sand. For instance, in recent days, numerous young children, elderly, and persons with preexisting respiratory conditions along a great swath of the eastern seaboard and Ohio Valley, have found it difficult or painful even to draw a full breath as smoke stemming from Quebec and Alberta wildfires descend upon and pervade their airshed. Nonetheless it additionally stings to learn that at least some young people endure crushing guilt when considering if they are doing enough to reverse an enveloping crisis that is none of their making.

It additionally stings to learn that young people must endure moments of crushing guilt for not doing enough to reverse an enveloping crisis that is not of their making.

It will be interesting to see what Judge Seeley decides to do with the mountain of evidence with which she is being presented.

In this regard, she likely will not be much helped by the State Defendant. In Montana’s pretrial motion for summary judgment, for instance, its attorneys committed error upon error, both of law and logic, which the Judge in her denial then picked apart one by one. And on Tuesday, commencing his cross examination of an expert witness, the state attorney maintained “I love me some egg” before asserting – in patent error – that farmers have no alternative to the use of diesel tractors.

“I love me some egg,” the state attorney blubbered.

It is unclear to me whether such lawyering can possibly help Judge Seeley decide the critical questions before her. On its face, the “MEPA Limitation” simply does not appear to be narrowly tailored to serve any compelling state interest. Indeed, the provision seems flatly to conflict with the Montana Constitution’s command to “protect the environmental life support system,” and “maintain and improve a clean and healthful environment . . . for present and future generations.”

Clearly, considering her prior rulings, Judge Seeley thinks that a judicial determination on the constitutionality of the “MEPA Limitation” might, in some provable way, alleviate Plaintiffs’ injuries. Perhaps she has in mind a twist on the “presumption of regularity,” namely that government officials will normally comply with, rather than ignore, an authoritative determination by the Court. Perhaps, as well, Judge Seeley is considering whether such declaratory relief in itself can alleviate at least some of the desperation with which informed young people now appraise their future prospects.