McClaughry: The bizarre Montana climate case

by John McClaughry

The Wall Street Journal reports that “The press is cheering a group of Montana children who prevailed this week in state court with a radical new legal theory on climate change.”

“The Montana state constitution prescribes a right to a “clean and healthful environment… An outfit called Our Children’s Trust brought a suit from 16 Montana youth who allege they are harmed by climate change and the state’s energy policies.”

“State district Judge Kathy Seeley bought the argument, striking down as unconstitutional measures that preclude the state from considering greenhouse-gas emissions as part of project approvals. The decision is more spiritual experience than legal analysis. ‘Plaintiffs’ injuries will grow increasingly severe and irreversible without science-based actions to address climate change,’ the judge wrote.”

“’Wildfire smoke and heat “adversely impact” a teenager named Grace’s “ability to play competitive soccer,’ the suit said. …A plaintiff named Georgi lamented that her ‘ability to compete and participate in Nordic skiing has been directly impacted by climate disruption,’ the complaint notes. Another plaintiff claimed, ‘bouts of depression’ about the climate and feeling ‘heartbroken and desperate.’ These young people ought to sue the adults who have misled them about climate apocalypse.”

“The plaintiff claims are so dubious that they shouldn’t survive on appeal, which Montana plans to file. But the climate left will take this strategy on the road and try to persuade ideologically sympathetic judges like Ms. Seeley to do what legislatures won’t.”

Categories: Commentary

14 replies »

  1. I guess this proves your never too young to be indoctrinated. I would guess it started in middle school where minds absorb what’s claimed as the truth and just continues from there!

    • Let us not forget that many of the younger educators of those middle school students were subjected to the same theories during their own education.

  2. “Just like the arms and legs, the largest portion of a child’s lungs will grow long after he or she is born. Eighty percent of their tiny air sacs develop after birth. Those sacs, called the alveoli, are where the life-sustaining transfer of oxygen to the blood takes place. The lungs and their alveoli aren’t fully grown until children become adults. In addition, the body’s defenses that help adults fight off infections are still developing in young bodies. Children have more respiratory infections than adults, which also seems to increase their susceptibility to air pollution.
    Several studies have found air pollution linked to harm to children while they are still in the womb. A large study in California found that higher particle pollution levels increased the risk of preterm birth. Pregnant women exposed to even low levels of particle pollution had higher risk for preterm birth in a Boston study. Preterm births occurred more frequently when particle pollution spiked, as an Australian study found, even when they controlled for other risk factors.
    The Southern California Children’s Health study looked at the long-term effects of air pollution on children and teenagers. Tracking 1,759 children who were between ages 10 and 18 from 1993 to 2001, researchers found that those who grew up in more polluted areas face the increased risk of having reduced lung growth, which may never recover to their full capacity. The average drop in lung function was similar to the impact of growing up in a home with parents who smoked.

    Community health studies are pointing to less obvious, but serious effects from year-round exposure to ozone, especially for children. Scientists followed 500 Yale University students and determined that living just four years in a region with high levels of ozone and related co-pollutants was associated with diminished lung function and frequent reports of respiratory symptoms. Another earlier report from the Children’s Health study of 3,300 schoolchildren in Southern California found reduced lung function in girls with asthma and boys who spent more time outdoors in areas with high levels of ozone.” AMERICAN LUNG ASSOC.
    “ideologically sympathetic judges” ??> How about judges who can read and accept science, researc and facts?.

  3. Still awaiting moderation? Why? No science allowed here? Disgusted nurse who actually cares about babies, children, the unborn.

    • Why are you hostile. I don’t understand. Maybe no one has had time to read and respond. I think your commentary is interesting. To follow your line of thought. I would like to add the issue of very young children with developing brains being forced to wear masks all day at school for an excessive period of time, such as over a year. I read an interesting paper written by a neurologist. Her research showed that any amount of extra carbon dioxide in a child’s lungs can cause developmental issues in the brain. These issues are not immediately detectable and present as the child ages. So do you support children wearing masks?

      All I can say about pollution and air quality is that on a whole the air quality in America is far improved due to excellent environmental controls and emission policies enacted in the 70 s. The receipt fires are not necessary caused by climate change. For example, the most recent string of fires in Canada were caused by arsonists, not climate. You also have the intentional mismanagement of forests, which exasperates risk and intensity of fires. This mismanagement includes grasslands too, which are allowed to grow unchecked which are a fire threat, especially when electrical lines are grounded from high wind and the electric company doesn’t turn off the power, like in Maui.

      Do you know that school children are being indoctrinated into fearing climate change. They have received a pitical education in service of the United Nations Sustainable Development Goals courtesy of the NEA and NEAF.

  4. 34 years ago, the Montana Supreme Court held the environmental constitutional provision upon which the lawsuit was based to be a fundamental right. Despite that fundamental right, the state legislature enacted a pair of laws which specifically barred courts from being able to vacate, void, or delay permits or authorizations for proposed projects for reasons related to climate change.
    The Montana District Court in the case Held v. Montana determined the burden was on the state to show that the statutes which appeared to be in abrogation of plaintiffs’ right to seek relief met the strict scrutiny test, and that the state failed to meet that burden. The climate left Mr. McClaughry? Why is it always about left and right? Is that the only thing you can bring to the discussion?

    • In fairness, Mr. McClaughry cited the word ‘left’, as an entity, but once.

      The case in question has only a plaintiff and a defendant. It’s the nature of our adversarial system of law. The prosecution and the defense. The judge and the jury. It’s binary. Even when a class action is taking place, there are two sides.

      And given that Mr. McClaughry is simply trying to communicate a point, that one side’s logic is contrived, or at least somewhat less than entirely rational, characterizing that side as being on ‘the left’ or on ‘the right’ is a common language vernacular.

      So, I ask you: what’s your point? How, for example, can the Montana constitution proclaim a right to a clean and healthful environment, when no one really knows the extent to which one must go to have that right? Do we have the right to be perfect in everything we do? Who decides what’s perfect and what isn’t? Or is the mere pursuit of perfection sufficient?

      Suffice it to say: I think Mr. McClaughry’s point is that the nature and definition of the climate change crisis is changing yet again. And understandably so. Greenhouse gases (i.e., CO2) and water vapor are no longer the evil culprits of our demise. Recently, more than 1600 International scientists [including several Nobel laureates and 321 scientists in the United States] have jointly signed a declaration dismissing the existence of a climate crisis and insisting that carbon dioxide is beneficial to Earth, contrary to the popular alarmist narrative.

      ‘Left’ or ‘Right’: “Whoever fights monsters should see to it that in the process they do not become a monster. For when you gaze long enough into an abyss, the abyss will gaze back into you.” Friedrich Nietzsche

  5. I think the issue, in my mind at least, is that however you feel about what it means that a citizen has a “right” to a clean and healthy environment, the issue with the laws in question was simply that they forbade considering certain climate/environmental concerns when approving certain projects, other laws, etc. The issue isn’t that they MUST put environmental concerns first, it is that you can’t have a law that explicitly says those concerns may not be considered, so long as the constitution states you have a right to a clean environment.

    • The issue (to have a clean and healthy environment) isn’t ‘a right’ – in so much as that there is a right to free speech, the freedom to exercise a religion, the freedom to be secure in our homes, and the freedom to defend oneself.

      Our Constitution is based on allowing individuals to do whatever they choose to do – so long as they don’t harm someone else in the process.

      The Founders clearly recognized that a given ‘harm’ can be obvious or subtle. In other words, ‘harm’ is unique to a specific set of circumstances at a specific point in time. Government’s roll isn’t to determine whether or not a ‘harm’ has been inflicted on someone by another, but rather to establish a judicial system (i.e., the courts with its adversarial process) to mitigate each claim on its own merits – which can be infinitely unique.

      The problem arises with the concept of equity (i.e., equal outcomes), as opposed to equality (i.e., equal access to equal protection). One size doesn’t fit all. Never has. Never will.

      For example, if I have the ‘right’ to a ‘healthy’ environment, and I choose to eat a lot of ice cream and few fruits and vegetables, can I make a reasonable claim of harm because the ‘environment’ made ice cream available to me? Or, perhaps, that the ice cream maker practiced false advertising of ice cream’s health benefits?

      As you can see, the nature of one complaint can be infinitely different from another. And again, I differ to Milton Friedman for systemic clarity with regard to our transactions and government’s role in the process.

      “The key insight of Adam Smith’s Wealth of Nations is misleadingly simple: if an exchange between two parties is voluntary, it will not take place unless both believe they will benefit from it. Most economic fallacies derive from the neglect of this simple insight, from the tendency to assume that there is a fixed pie, that one party can gain only at the expense of another.”

      “Government has three primary functions. It should provide for military defense of the nation. It should enforce contracts between individuals. It should protect citizens from crimes against themselves or their property.”

      “When government — in pursuit of good intentions tries to rearrange the economy, legislate morality, or help special interests, the costs come in inefficiency, lack of motivation, and loss of freedom. Government should be a referee, not an active player.”

      The problem with our elected officials, and those of us who elect them, is that we don’t draw a distinction between our personal responsibilities and the so-called ‘greater good’. The greater good is, more often than not, a wolf in sheep’s clothing. The road to hell is paved with good intentions. Etc., etc..

      “Half the harm that is done in this world is due to people who want to feel important. They don’t mean to do harm; but the harm does not interest them. Or they do not see it, or they justify it because they are absorbed in the endless struggle to think well of themselves.” – – T. S. Eliot

  6. The law is a nice feel-good notion, like a lot of the pablum and sloppy legislation that comes out of Montpelier for the last 50 years. Taken to it’s logical conclusion, this law could be used to prevent the government from issuing a building permit for even a single-family home, since every construction project has some negative environmental impacts that go beyond the property lines.

    • Exactly.
      Perhaps Mr. McClaughry intended this as a warning or harbinger of a new lawfare angle for Vermont’s climate evangelists. The GWSA genie is uncorked from it’s bottle and ramping up for full implementation, a lawfare action such as this could shut down development here in Vermont for years as it filters thru the courts. yes, we have ACT 250 and it’s variants to “police” all manner of development, with the GWSA bolstering the regulation- however- interpreted with a radical environmental view- the same suit could spell disaster for all of Vermont’s residents.

  7. The argument seems to boil down to “Is it a right to breathe ‘clean air’?”. Secondarily, the Montana constitution dates to only 1972, which was the peak of the anti-war, flower power, hippie, and back-to-the-land sentiment, only the first and last of which are enjoying somewhat of a recent renaissance.

    And in 1972, the country’s air was at its worst, with smog, factory pollutants, and who knows what from open burning and incinerators going into the air. Rivers were known to catch fire. No doubt, that needed to be cleaned up, and it has been to a great extent. So yes, *everyone* wants “cleaner” air. Who wouldn’t?

    But the plaintiffs in this case don’t look at the progress that has been made. Having lived through the 60s and 70s and growing up in a city, I know we’ve gotten 95% better since 1972.

    So the question is, when is “good enough” good enough? As the old adage goes, if you ask a mathematician and a physicist how many days one would accumulate going from Burlington to Montpelier if you have to stop every time you get halfway from your starting point and have to start anew the next day. Of course, the mathematician says “You can never get there going halfway each time”, and technically he’s correct. The physicist replies “Maybe so, but for all practical purposes I can get close enough that it doesn’t matter”.

    And the “mathematician-types” in our real-life world won’t ever be satisfied. Never. If they had nothing to complain about, they’d invent something (and they are).

    But our “physicists”? To us, we’re close enough, at least for now, and we HAVE come a long way. Let’s celebrate how far we’ve come rather than making speciously claims about what our “rights” are and trying to re-define the word.