Montana Supreme Court: Climate science is NOT settled

To: Editor, Flathead Beacon, by Quentin M. Rhoades, Esq.

I read with great interest your recent Guest Commentary of Jim Manley regarding his Climate Change lawsuit. (July 28, 2011.) Mr. Manley portrays himself and his team of attorneys working on the case as simple country lawyers who are generously protecting future generations, at no charge mind-you, from hayseeds and industry hacks in the Montana Legislature. The reason for my attention to the Mr. Manley’s column is that I served as an attorney in the Climate Change case, representing the Big Fork based Climate Physics LLC, the Western Montana Fish and Game Association, and 106 other intervenors, including over 30 Montana Representatives and Senators, as well as other elected officials, ordinary citizens and their children.

Mr. Manley is wrong on several points. First, he and his fellow trial lawyers who filed the suit are some of the most seasoned plaintiff’s attorneys in Montana, having won literally scores of rich contingency fee verdicts and settlements. Mr. Manley himself recently achieved the most valuable insurance bad-faith jury verdict in Montana history. Simple country lawyer he is not. Rather, his is a sophisticated legal mind that you underestimate at your peril.

Second, Mr. Manley claims “there is no real scientific controversy” about Climate Change. Not so. In the briefs submitted to the Supreme Court on intervention, we included a virtual mountain of science to the direct contrary of Mr. Manley’s arguments, including the opinions of over 1,000 climate scientists refuting the theory of human-caused Climate Change. In view of this evidence, the Montana Supreme Court ruled that there is no consensus, and dismissed the case on its factual substance. It ruled that in the face of the bona fide scientific dispute over the facts Mr. Manley and his colleagues allege, the case must be submitted to a trial court for evidentiary findings before legal arguments can considered by the Supreme Court.

Finally, the Supreme Court’s dismissal was not, as Mr. Manley implies, based on missteps of procedure made in the presentation of the case. Rest assured, Mr. Manley and his colleagues are far too cagey for procedural blunders. Truth is, the Montana Supreme Court became the first court in America to rule on the Climate Change litigation instigated by the Oregon environmentalist organization calling itself “Our Children’s Trust.” And the Court held: there is no scientific consensus that is sufficiently well-settled to allow a court to decide the case purely as a matter of law. This establishes once and for all, at least as far as Montana law is concerned, the science is decidedly not settled.

So next time someone tells you that only barefoot bitter-clingers and greedy industry polluters reject the notion of a scientific consensus on human-caused global warming, tell they can add the Montana Supreme Court to their list of “deniers.”

Sincerely,

Quentin M. Rhoades, Esq.

Sullivan, Tabaracci & Rhoades, P.C.
(406)721-9700
qmr@montanalawyer.com
www.montanalawyer.com

______________________________________

Guest Commentary: Jim Manley to Flathead Beacon

Addressing Climate Change is Neither Frivolous nor Criminal

By Jim Manley , 07-28-11,

In his July 6 Beacon commentary, Dave Skinner accused a number of attorneys and their clients of “criminal frivolity” regarding a petition filed in the Montana Supreme Court. The author doesn’t appear to be well-informed on the petition, science or basic tenets of our constitutional system of government.

It is an odd “crime.” Six busy Montana attorneys agreed to represent these plaintiffs without charge. Contrary to Mr. Skinner’s suggestion, none of us are even environmental attorneys. We are all parents and grandparents who happen to be attorneys. The plaintiffs did not seek any money. The attorneys made no money. So what is the crime? “Fraudulently working for free?”

The “children” plaintiffs, all from Montana, included a Harvard planet science student, an MSU agronomy student, and a UM pre-med student. Is it possible these students know more about the science than Mr. Skinner, and are legitimately concerned about their government’s failure to address this serious threat to their future?

It was expected, when this legal action began, that virulent deniers would personally attack our clients and us, rather than address the science. Virtually every legitimate scientific organization in the world has concluded that man-caused global warming is a serious problem that must be addressed:

  • U.N. Intergovernmental Panel on Climate Change
  • NASA (Goddard Institute for Space Studies)
  • National Academy of Sciences
  • National Research Council
  • American Association for the Advancement of Science
  • American Meteorological Society
  • World Meteorological Society
  • American Geophysical Union
  • American Institute of Physics
  • American Chemical Society
  • U. S. Environmental Protection Agency

There is no real scientific controversy about this.

Maybe Mr. Skinner knows more than all the scientists, but some of us believe we owe it to our grandchildren to listen to the scientists. As one physicist said, “The thing about science is, it’s still true even if you don’t believe it.”

The petition sought a declaratory ruling that our Montana Constitution and common law say that the government holds the atmosphere in trust for this and future generations (as our Supreme Court already held with regard to water and land). If the constitution provides that – then the current politically driven legislature is not legally allowed to ignore it. The Supreme Court denied the petition on procedural grounds, ruling that the case will have to be started in a district court (which will result in a delay of perhaps years).

Perhaps Mr. Skinner’s confusion regarding “frivolity” and “crime” stems from not understanding the limits of political-trend rule in our constitutional system. Mr. Skinner’s inflated rhetoric alleges we are “good totalitarian elitists” trying to “subvert the political processes of a free country …” It is true that the “processes” of the current political, legislative branch have effectively stopped the governor and state agencies (executive branch) from continuing the remedial work the governor began, to address this threat to our children’s future. But if our constitution provides that every Montanan is entitled to a “clean and healthful environment” (as it does: Article II, Sec. 3) and provides the government has a trust duty to protect “all surface, underground, flood and atmospheric waters within its boundaries” (as it does: Article IX, Sec. 3), then the current legislature is not at liberty to prevent the Montana government from honoring these constitutional rights and duties. We do not have “freedom” to violate the constitutional rights of others, even those too young to afford lobbyists or junk science propagandists. A basic tenet of our system of government is that there are limits to the excesses of the majority rule of the moment. The limits are set out in the constitution.

Our children deserve to inherit a livable planet, like we did. That won’t be possible if our government continues to ignore its moral obligation to future generations, by letting fossil fuel corporations dump gigatons of pollution into the atmosphere every year, as they now do.

Jim Manley is a Polson attorney, one of the six Montana attorneys representing the plaintiffs in the recent Montana Supreme Court petition in Barhaugh, et al v. State of Montana, Sup. Ct. Case No. OP-0258.

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