“This establishes once and for all, at least as far as Montana law is concerned, climate science is decidedly not settled.” – Attorney Quentin Rhoades
Barhaugh v. Montana: Petition for Original Jurisdiction
The Petition is based on its claims (highlighted) that human carbon emissions cause bad things to happen. They quote flaming alarmists for their evidence. They try to prove a theory is true, which contradicts the scientific method. They assume if bad things happen then human carbon emissions are the cause, whereas logic says an effect cannot prove its cause.
Dr. Ed Berry retains attorney Quentin Rhoades
Since we had only one week for our attorney to file our Motion to Intervene, there was no time to ask for money. So, I guaranteed to pay all Rhoades’ discounted legal fees of about $7000 but had to pay only $5000 because these 15 donors paid $2090 to accomplish this win in the Montana Supreme Court:
- James Hyatt
- Steven Scheye
- Chauvin Emmons
- William Dallin II
- Frederick Hammel
- John Mauzey
- Joe Beardsley
- Mae Woo
- Mark & Pam Agather
- Max & Linda Agather
- George & Lovella Torp
- Keith & Jolene Regier
- Chris Rosenau
Motion to Intervene
The Motion to Intervene contains these sentences about climate:
- The facts of the petition are presented as if a record has been made in a trial court, after complete pretrial proceedings and discovery, establishing an absence of any contested evidence. Of course, no such proceedings have been had, and there is no “consensus” that human activity is effecting the world’s historically-ever-changing climate.
- If the Court declares the State has a duty to stop carbon gas emissions to protect the world’s atmosphere, there will be devastating results for the State’s economy.
- The reduction in economic activity due to carbon restrictions will also impair State tax revenue.
- If the Court grants the Petition and holds that carbon gases must be regulated sufficiently to “mitigate human caused climate change,” then Intervenors’ interests in values other than the global climate will suffer.
Intervenor’s Answer to Petition
This answer to the petition presents climate facts that dispute the Petitioners’ climate claims, and concludes:
- In sum, there can be no public trust if the public trustee –the government –is utterly powerless as a practical matter to effectively protect the corpus of the trust. In this case, the corpus is the global atmosphere. Even if it were undisputed that global climate change is human-caused, Petitioners fail to allege –let alone prove –that any measure Montana could possibly take would reduce total global carbon gas emissions sufficiently to have any measurable impact on the direction or rate of climate change. If they cannot prove a connection between eliminating of Montana’s minute carbon emissions, and a reduction in the pace of global climate change, then public trust doctrine cannot, even under their own flawed legal theory, apply.
Intervenor’s Exhibit C on Climate
Exhibit C shows:
- This new 2010 Climate Depot Special Report features the skeptical voices of over 1,000 international scientists, including many current and former UN IPCC scientists, who have now turned against the UN IPCC. The more than 300 additional scientists added to this report since March 2009 (21 months ago), represent an average of nearly four skeptical scientists a week speaking out publicly. The well over 1,000 dissenting scientists are almost 20 times the number of UN scientists(52) who authored the media-hyped IPCC 2007Summary for Policymakers.
Intervenor’s Exhibit D on Climate
Exhibit D concludes:
- This NIPCC report falsifies the principal IPCC conclusion that the reported warming (since 1979) is very likely caused by the human emission of greenhouse gases.
- In other words, increasing carbon dioxide is not responsible for current warming.
- Policies adopted and called for in the name of ‘fighting global warming’ are unnecessary.
State of Montana Summary Response
Attorney General Bullock noted the court would need to determine that the Petitioners’ claims about climate science are true before it could rule in favor of the Petitioners:
- This disputed record is just one example of the factual determinations this Court would need to make to rule for Petitioners.
- In addition, it would need to address, among other issues, the current state of climate change science; the role of Montana in the global problem of climate change; how emissions created in Montana ultimately affect Montana’s climate; whether the benefits of energy production must be balanced against the potential harm of climate change; and the concrete limits, if any, of the alleged “affirmative duty.”
Order – Final Disposition
The Final Deposition contains these sentences about climate:
- As the State points out, the petition incorporates factual claims such as that the State
“has been prevented by the Legislature from taking any action to regulate [greenhouse gas]
- The State posits that the relief requested by Petitioners would require numerous other factual determinations, such as the role of Montana in the global problem of climate change and how emissions created in Montana ultimately affect Montana’s climate.
- This Court is ill-equipped to resolve the factual assertions presented by Petitioners. We further conclude that Petitioners have not established urgency or emergency factors that would preclude litigation in a trial court followed by the normal appeal process.
The Petition is based upon its assumption that all its climate claims are true. The Intervenors presented evidence that contradicted the Petition’s climate claims. This evidence affected AG Bullock’s reply to the Court because he could not go on record disputing the Intervenors’ evidence.
The Montana Supreme Court would have ruled in favor of the Petition but for the evidence presented by the Intervenors. The court could not determine whether the Petitioners or the Intervenors were correct about climate because, in the court’s view, there is no scientific consensus that is suffiently well-settled to decide the case as a matter of law. Therefore, the rejected the Petition.
Attorney Quentin Rhoades wrote the Montana Supreme Court ruled against the Petitioners because:
- “There is no scientific consensus that is sufficiently well-settled to allow a court to decide the case purely as a matter of law.”
The alarmists’ case for human-caused climate change failed in the Montana Supreme Court. Climate alarmists have not returned to present their case in a Montana court, and now, their 2011 claims of imminent climate disaster have obviously failed, so they have lost their credibility.
Attorneys for Petitioners
Thomas J. Beers
BEERS LAW OFFICES
P.O. Box 7968
Missoula, MT 59807-7968
Telephone: (406) 728-4888
Facsimile: (406) 728-8445
L. Randall Bishop
JARUSSI & BISHOP
P.O. Box 3353
Billings, MT 59103-3353
Telephone: (406) 245-7555
Facsimile: (406) 245-0840
James A. Manley
MANLEY LAW FIRM
201 4th Ave. E.
Polson, MT 59860
Telephone: (406) 883-6285
Facsimile: (406) 883-2861
BEST LAW OFFICES, P.c.
P.O. Box 2114
Great Falls, MT 59403
Telephone: (406) 452-2933
Facsimile: (406) 452-9920
Amy Poehling Eddy
BOTTOML Y EDDY & SANDLER
1230 Whitefish Stage Rd., Suite 100
Kalispell, MT 59901
Telephone: (406) 752-3303
Facsimile: (406) 755-6398
Gregory S. Munro
3343 Hollis Street
Missoula, MT 59801
Telephone: (406) 207-8267
Facsimile: (406) 243-2576
Attorney for Intervenors
In a precedent-making decision, the Montana Supreme Court dismissed the Petition for Original Jurisdiction by Our Children’s Trust saying unsettled factual issues related to limiting emissions of greenhouse gasses (GHGs) must first be addressed in a lower court.
The Montana Supreme Court wrote it was “persuaded” by the Attorney General’s arguments that the Petition’s evidence for human-caused global warming is in legally substantial doubt.
The Montana Supreme Court rejected the claim made by Our Children’s Trust in its May 4, 2011, Petition, that a “scientific consensus exists that increasing emissions of greenhouse gases (GHG) are affecting the Earth’s climate.”
This ruling forces those who file future GHG emissions lawsuits to first prove the scientific credibility of their global warming claims by means of legally competent evidence.
Dr. Ed Berry, CEO of Climate Physics LLC, said “The Montana Supreme Court’s decision was influenced by the Motion to Intervene which included 118 Intervenors, 13 minor children, 15 state representatives, 7 state senators, and 8 elected state officials.”
Rhoades: Bullock agreed climate science is not settled
by Quentin Rhoades, Attorney for the Intervenors 07-15-2011
Montana Attorney General Steve Bullock’s response to the Atmospheric Trust Litigation (ATL) makes an interesting story.
As detailed in our motion to intervene, Bullock crowed about his “commitment to the environment” while on the stump, bragging, for example, that he is a TerraPass member, and promising to invoke the Clean and Healthful Environment clause of the Montana Constitution to crack down on industry.
Thus we argued to the Supreme Court that he was not qualified to resist the ATL petition. He could not defend the action without breaking campaign promises.
In response, he insisted he was well-qualified and sought to prove his bona-fides by arguing that the science on man-caused global warming is not settled. His denial of a scientific consensus disqualifies him in the eyes of the Left as a legitimate candidate for Governor – especially since he convinced the Court to so rule.
Thus, the Montana Supreme Court became the first court in America to rule on the ATL litigation.
And not only is it the highest court of a sovereign state, but it ruled that there is no scientific consensus that is sufficiently well-settled to allow for them to decide the case purely as a matter of law.
Once Bullock’s core constituents learn of his arguments against the ATL petition — and of the significance of the Montana Supreme Court’s ruling — they will be apoplectic. (As an aside, we were particularly gratified by this ruling because — unlike Bullock – it was our petition that provided the court with actual evidence contesting the facts alleged in the ATL petition to be undisputed.)
On the other hand, Bullocks strategy was heavily damaging to our efforts to get this thrown-out of the courts entirely. Instead of arguing the case was not justiciable, he took the preposterous stance that it should be remanded to a trial court for fact-finding. He also expressly objected to our motion to intervene, and to the Republican Leaders’ request to file an amicus brief.
In other words, he fought all efforts to have the issue returned to the political branches for decision, and he fought the public’s and the Republicans’ efforts to even participate. There’s no way anyone in industry or from any conservative school of thought can find anything redeemable in this stupid approach.
So, for all the talent he supposedly possesses, Bullock’s entire response to the ATL litigation was a political and legal cock-up. I bet he’s gotten a real earful from the lawyers who filed the petition, and their allies, and I doubt many from our side have offered him much in the way of praise. No wonder he’s delayed his announcement for Governor.
Addressing Climate Change is Neither Frivolous nor Criminal
Guest Commentary: Jim Manley to Flathead Beacon
By Jim Manley , 07-28-2011
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.
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 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. A 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 the Supreme Court can consider legal arguments.
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, climate 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 them they can add the Montana Supreme Court to their list of “deniers.”
Quentin M. Rhoades, Esq.
Law does not determine truth in science
Legal arguments cannot determine whether a scientific theory is true or false. Only the scientific method can make this decision.
In her article in Montana Lawyer, District 11 Court Judge Amy Eddy shows she did not learn from her experience. She repeats the Petition’s climate claims even though the Intervenors introduced evidence that shows the Petition’s climate claims were false.
According to the Great Falls Tribune, the Court said the case raised too many questions about Montana’s contribution to global warming, so the Court could not resolve the factual assertions and rejected the plaintiff’s claim that the matter was too urgent to wait for action by a lower court.
The Story behind the story
In 2011, the Montana Supreme Court rejected the Global Warming petition by Our Children’s Trust.
According to attorney Quentin Rhoades, whom I hired to defeat the petition, “This establishes once and for all, at least as far as Montana law is concerned, that climate science is decidedly not settled.”
Therefore, it is illegal for Montana schools, colleges, universities, and government agencies to teach, promote, or make decisions on the groupthink belief that our carbon emissions threaten the planet.
When they lost, the attorneys for Our Children’s Trust vowed to take their case to a Montana court because they claimed in 2011 that human emissions will affect life on earth in only a few years if we don’t stop our carbon emissions.
Why did they not file a lawsuit to prove their climate belief is true? Because they know that they cannot win such a lawsuit.