In Montana, A Landmark Legal Challenge Over Climate Change

Story originally published in The New Lede

For 20-year-old college student Olivia Vesovich, climate change is not a future concern. It’s a current and near-daily crisis.

“Climate change has impacted my ability to breathe,” Vesovich testified from the witness stand of a Montana courtroom last week.

The college student, who suffers from asthma, is one of more than a dozen young people who have undertaken a landmark legal challenge against the state of Montana over the state’s support for industries that contribute to harmful climate change and related impacts on human health.

Smoky conditions stemming from wildfires that have been raging through the western US have direct and frightening consequences, Vesovich told a packed courtroom in Helena.

“It feels like it’s suffocating me if I’m outside for too long,” Vesovich said.

Personal stories such as Vesovich’s were spotlighted over the last week in the case of Held v. Montana, which was filed by sixteen children and young adults who contend that Montana officials are turning a blind eye to climate pollution when issuing permits for fossil fuel projects, including expansion of coal mining.

The case is the first-ever constitutional climate trial in the country, pitting youth inheriting climate problems against the government leaders they blame for the dire legacy.

The plaintiffs are seeking a court declaration that the state is violating Montana’s constitution, which explicitly grants the right to a clean and healthful environment. The lawsuit targets two provisions of Montana’s energy policy, one that promotes the use of fossil fuels, and another that prevents state officials from taking into account how different projects contribute to climate change.

State officials maintain climate change is a global problem and they are bound by current state laws. The Montana Department of Environmental Quality has asserted that it cannot deny permits if proposed projects comply with applicable permitting requirements, regardless of the environmental impacts and especially the climate impacts, which agencies are barred from evaluating. Changes should come through legislative means, they say.

Testimony concluded this week, and a ruling is expected in the next few weeks by Judge Kathy Seeley.

Toxic smoke

The toxic smoke associated with wildfires was a common concern among the plaintiffs. Wildfire smoke contains PM 2.5, defined as particulate matter that measures 2.5 microns in diameter or smaller. When people breathe them in, the particles can impact not just the lungs, but also other organs, including the heart and brain.

The particulate matter in wildfire smoke is known to have a range of health effects that include myocardial infarctions, heart failure, and strokes, as well as respiratory problems such as asthma. Wildfires could lead to “hundreds to thousands of hospital admissions and emergency department visits, and hundreds of thousands of cases of asthma exacerbation,” according to a new study issued this month.

Climate change is contributing to an increased risk of wildfire, as are other factors, and the amount of US land burned by wildfires is about four times what it was forty years ago, researchers say.

The physical ailments come with mental anxiety and anguish, psychiatrist Dr. Lise Van Susteren testified.

“Our children are at deep risk from the impacts of climate disruption,” she told the court.

Van Susteren cited an American Psychological Association 2017 report that warned that climate impacts “may have long-term and even permanent effects, such as changing the developmental potential and trajectory of a child.”

“Being surrounded by wildfire smoke can have mental health impacts,” Van Susteren said in her testimony. “It tells you the world is not a safe place, you can’t go outside and breathe; it really spawns an enormous amount of anxiety, and can make you feel the world is spinning out of control.”

The Intergovernmental Panel on Climate Change’s Sixth Assessment Working Group II report published last year acknowledged that climate impacts are associated with increased risks for mental health and that children are uniquely vulnerable.

Climate anxiety

Climate anxiety is becoming especially common among young people as they realize that floods, fires, and other climate-related disasters are forecast to become more common. According to a 2021 global study on climate anxiety among young people ages 16 to 25, more than half of those surveyed said they felt that humanity is doomed, and four out of every ten respondents reported concern about having children of their own.

According to the 2021 study on climate anxiety, which Van Susteren co-authored, the vast majority of young people surveyed feel betrayed by government. “Two-thirds of those 10,000 kids [surveyed] lay the blame firmly at the feet of government,” she told the court. Professionals in her field call this institutional betrayal, she explained.

“Instead of protecting them, they’re increasing the dangers” she said of Montana’s government.

Young people are concerned not just about their own health, but also for any future children, according to testimony at trial. Due to children’s unique and developing physiology, they are more vulnerable to extreme heat and to air pollution such as wildfire smoke. The climate crisis stemming largely from fossil fuels exacerbates these impacts, scientists say.

Dr. Lori Byron, a Montana-based pediatrician, testified that concern about bringing future children into the world is quite common among her young patients. As well, she said, exposure to extreme heat can complicate pregnancies, increasing the likelihood of preterm births and increasing the risk of developmental disorders in the child.

The court’s ruling will have a “determinative” effect on the youth plaintiffs’ mental health, Van Sustern said. “It’s a night and day impact. Either things are going to get worse and they will increasingly sense the feeling of hopelessness, or instead, here we are bringing to them the possibility that the necessary changes are going to be made.”
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Similar lawsuits are pending in four other states, and a federal suit is also pending, the Guardian reported.