Climate Law

How a few saved Montana from the Climate Change Scam

by Ed Berry, PhD, President, Climate Physics LLC 

With the help of about 120 dedicated Montanans and Climate Physics LLC, Montana’s Climate Change Freedom Day occurred on June 15, 2011. Here’s the story of how it happened.

As you read my story, I hope you will press the Donate button and help reimburse Climate Physics for the legal fees and costs of its Motion to Intervene and to give Climate Physics the monetary base to defeat future scientifically-unfounded actions.

The phone call.

On Thursday, May 19, at 1:42 pm, Gary Marbut called me. I answered and he asked,

“Why are you breathing so heavily?”

I said, “I was in the middle of a 400 meter run when I stopped to answer your call.”

He said,

“An environmental group Our Children’s Trust from Oregon filed a Petition for Original Jurisdiction in the Montana Supreme Court on May 4. Our supreme court allowed until Monday, June 6, for public response. The Petition is about climate change.”

Finally getting my breath, I said,

“I know how to beat them on the science but June 6 gives us only 2 weeks to organize a whole legal response … and we don’t even have a lawyer.”

We asked each other,

“Can we trust or Democratic Attorney General to take a firm stand against the Petition?”

Sure, like having a fox guard your hen house. My friend and I agreed someone must take a stand to protect Montana. We could not risk a loss on this. This loss would be very costly to Montana’s citizens.

He said, “I will help you find a good lawyer.”

During the next week, I asked the Montana Farm Bureau and other organizations if they planned to file an Intervention. I called lawyers. In every case, I found no organization or lawyer willing to stand up for Montana against the Petition. They all seemed lost when it came to rebutting the Petition’s scientific claims. In short, all were unwilling to take a stand.

My friend finds a lawyer.

On Thursday, May 26, with one week to go, my friend called, saying,

“I found a good attorney who will handle our case. He is Quentin Rhoades. He has done other work like this and he is willing and available to take this job.”

I called Quentin, who said,

“I will be your attorney. I will work at my best discount rate and begin work immediately. But I need a client willing to sign our legal agreement.”

We had no time to lose, so I told Quentin,

“I will sign as client so we can get moving.” [See PDF.]

I guaranteed to pay his fee. After we win, I would then ask others to help pay my costs. I trust the good people of Montana to support a worthy cause.

We needed to file our Motion to Intervene by the following  Friday, June 3, in order to be sure we would meet the Monday, June 6, deadline and to give our AG time to read our Motion before he filed his statement.

We had one week to construct our whole defense against a petition that was developed over many months by a full team of expert lawyers. One week!

An email message said we did not need to Intervene.

On May 27, we received an email about a conversation with an attorney in the office of the attorney general. The message said the AG will oppose the Petition on the grounds it does not meet the requirements of the law. Therefore, the email suggested we need not file a Motion to Intervene.

I asked Quentin, “What do you think about this message?”

He responded, “Do you trust Steve Bullock? I don’t.”

I agreed. While the email message might be true, but doing nothing would be like letting your chess opponent put your king in check.

Quentin and I worked full-time and overtime for the next week to prepare our Intervention. Quentin’s group, Sullivan, Tabaracci & Rhoades, of Missoula, organized our List of Intervenors.

Help from our legislators

Senator Jason Priest (R) SD 30, Red Lodge, MT, and Representative Krayton Kerns (R) HD 58, Laurel, MT, really went to bat to organize Intervenors from our state legislature. Their work was crucial. Since the Petition faulted our legislature, the petitioners would be in a weak position to argue that our legislative Intervenors did not have “standing” to intervene.

Quentin filed our Intervention on Friday afternoon, June 3, as planned. Our Motion to Intervene included 118 Intervenors, with 13 minor children, 15 state representatives, 7 state senators, and 8 elected state officials.

Now we waited for the AG filing and the court decision.

Here are the fundamental claims the Petition made, as quotes. If you are a climate scientist, like me, then you know why these claims are absurd because they do not prove human CO2 causes climate change:

  1. A “scientific consensus exists that increasing emissions of greenhouse gases (GHG) are affecting the Earth’s climate.”
  2. The State of Montana has the affirmative duty to protect and preserve the atmospheric trust, including establishing and enforcing limitations on the levels of greenhouse gas (GHG) emissions as necessary to mitigate human caused climate change.
  3. Petitioners have standing … because their personal and economic well-being is directly and uniquely dependent upon timber, wilderness, water and weather; and is threatened with injury by wild fire, loss of water resources, changes in precipitation patterns, extreme weather events, flood, beetle kill and other consequences of climate change.
  4. The Montana Department of Environmental Quality (MDEQ) has expressly admitted climate change poses a statewide imminent and growing threat to the lives and livelihood of the citizens of Montana:
  5. While climate change is the ultimate global issue – with every human being and every region on earth both contributing to the problem and being impacted by it to one degree or another – it does manifest itself in particular ways in specific locales like Montana. During the past century, the average temperature in Helena increased 1.3°F and precipitation has decreased by up to 20 percent in many parts of the state.
  6. Over the next century, Montana’s climate may change even more. In this region and state, concerns have been expressed by scientists and conservationists over a range of potential impacts, including:
    1. glaciers melting and disappearing in Glacier National Park and elsewhere in the Rocky Mountains;
    2. a potential decline in the northern Rockies snow pack and stressed water supplies both for human use and cold water fish;
    3. survival of ski areas receiving more rain and less snow, drying of prairie potholes in eastern Montana and a concomitant decline in duck production; an increase in the frequency and intensity of wildfires as forest habitats dry out, and perhaps a conversion of existing forests to shrub and grasslands; loss of wildlife habitat;
    4. possible effects on human health from extreme heat waves and expanding diseases like Western equine encephalitis, West Nile virus, and malaria;
    5. possible impacts on the availability of water for irrigated and dry land crop production alike.
  1. 7. Richard Opper, Director of the MDEQ, provided a compelling description of the effects of climate change across Montana:

The changes taking place in our beautiful Glacier National Park … are becoming symbolic of what lies ahead. When Glacier was designated a national park 100 years ago, 150 glaciers glittered along its mountaintops. Only 27 remain today and they all may be gone by the year 2022, should current weather patterns continue. Perhaps more serious than the visual impact of melting glaciers are the deeper environmental and economic problems associated with a changing climate.

  1. 8. Considering the scientific evidence cited by the Respondent (e.g., the State of Montana as run by Governor Schweitzer), there is not enough time to effectively arrest the effect of human-caused climate change unless immediate action is taken.
  2. 9. MDEQ acknowledges that “[t]he stakes associated with projected changes in climate are high, ” and “[i]t is imperative that we all begin to do what we can to address this crucial issue for our own sake and the sake of the generations of Montanans to come.” Climatological “tipping points” lie directly ahead and drive the urgency of taking action:
  3. 10. The farther we look into the future, the worse that the costs of inaction will become. The longer we do nothing, the greater the risks of an irreversible climate catastrophe, such as a massive rise in sea levels, that could make the world unable to support anything like the current levels of population and economic activity. The costs and risks of inaction are overwhelmingly worse than the moderate and manageable costs of an immediate effort t6 reduce carbon emissions.
  4. 11. The State admits “scientific consensus [exists] that increasing emissions of greenhouse gases (GHG) are affecting the Earth’s climate.”
  5. 12. Further, the State acknowledges “[s]cientists know with virtual certainty” human activities are affecting the composition of the atmosphere by releasing large quantities of C02 into the atmosphere by burning fossil fuels, deforestation, land uses, and industrial processes. The resulting measurable increase of carbon dioxide and other greenhouse gases is linked to rising global temperatures.
  6. 13. The adverse consequences of unregulated GHG emissions are so threatening that in 2005 Governor Schweitzer appointed the Climate Change Action Committee (CCAC) to prepare a Climate Change Action Plan to address the ”profound consequences that global warming could have on the economy, environment, and quality of life in Montana.”
  7. 14. The subsequent Action Plan determined that “a 14% increase in GHG emissions from 1990 to 2005 moved Montana from a net carbon sink to a net carbon emitter.” It determined Montana also has a higher rate of GHG emissions per capita – nearly double the national average.
  8. 15. The Action Plan recommended a number of measures for Montana to “reduce its emissions of GHGs to 1990 levels by the year 2020. Some of the recommendations can be implemented immediately, and some will require the support of the Montana State Legislature.”
  9. 16. This record establishes beyond dispute that the legislative and executive branches consider the State’s response to the climate crisis-which the State fully recognizes exists-to be a matter of political discretion, not legal obligation.
  10. 17. Petitioners respectfully submit that it therefore falls to the judicial branch, and uniquely to this Court, to exercise original jurisdiction to decide the scope of the duty imposed by Montana’s constitution and statutes to preserve and protect the atmospheric trust for present and future generations, and whether that duty allows continued inaction by the political branches.

Based upon the above invalid assumptions, the Petitioners concluded:

Accordingly, Petitioners pray this Court take original jurisdiction of this proceeding and enter judgment declaring:

(1) The State holds the atmosphere in trust for the present and future citizens of the state of Montana; and

(2) The State of Montana has the affirmative duty to protect and preserve the atmospheric trust, including establishing and enforcing limitations on the levels of greenhouse gas (GHG) emissions as necessary to mitigate human-caused climate change.

Here’s the problem with the Petition’s so-called scientific claims:

MDEQ and Governor Schweitzer’s CCAC are political organizations, not scientific organizations. In fact, there is not a known climate scientist among them.

MDEQ Director Richard Opper, not a climate scientist, is parroting the disproven, over-repeated, environmentalist claims about climate change cause and effect.

The Petition is attempting to use these political statements of MDEQ and CCAC as scientific authority. The Petition ignores mountains of scientific evidence disputing their claims.

The Petition has not described any hypothesis capable of making valid predictions. In short, the Petition makes claims without any evidence. This is pseudo-science.

Here’s why the Petition’s logic is so bad:

The Petition’s argument for human-caused global warming is structured like this:

  1. If humans cause global warming, then some glaciers may get smaller.
  2. Some glaciers have gotten smaller.
  3. Therefore, humans have caused global warming.

The Petition’s argument has the same logical structure as the following:

  1. If you own a gun, then you can kill Jose Smith.
  2. Jose Smith was killed.
  3. Therefore, you killed Jose Smith.

Or to put it another way, as I often do in my lectures, here is the essence of the Petition’s logic:

  1. If Bill Gates owns Fort Knox, then Bill Gates is rich.
  2. Bill Gates is rich.
  3. Therefore, Bill Gates owns Fort Knox.

The arguments above are examples of the well-known logical fallacy called “Affirming the Consequent.” For experienced lawyers to make such an illogical argument is almost incomprehensible.

In summary, the Petition’s claims are scientific nonsense.

Here’s why we needed to Intervene:

No court in Montana or America has ever subjected the Petition’s claims to legal review. Otherwise, the Petition would have merely cited such a court decision. In this case, the petitioners were looking for an easy way to establish a precedent without having to prove their claims. Neat. Or should I say, “Nice try”?

Had no Intervenor objected to the Petition’s claims, then our supreme court likely would have accepted the claims as fact. Such acceptance would have established the precedent in Montana that the claims were correct. Such an precedent would have been extremely difficult and costly to overturn. Therefore, it was absolutely urgent that we took a stand for scientific truth by Intervening in the Petition’s claims.

Here’s how we rebutted the Petition’s foundational claims:

We do not need to go into an elaborate scientific argument. We only need to show evidence that many qualified climate scientists disagree with the Petition’s claims. We do this by referencing two comprehensive scientific reports. Our Motion to Intervene included:

  1. A 321-page “Climate Depot Special Report” compiled by Marc Morano
  2. The Heartland Institute’sNature, Not Human Activity, Rules the Climate” edited by S. Fred Singer.

The full legal exhibits may be viewed on (See 1000 Scientists Dissent and Climate Change Reconsidered.)

Statement by our Attorney General

On June 7, we received a copy of Attorney General Bullock’s statement. He took our side against the Petition. It concluded:

In addition, [the Petition] 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.”

Here, the relief Petitioners seek is a declaration of a general “duty” that will not have direct or immediate effect on the State or on greenhouse gas emissions. Petitioners presumably seek to use such a declaration as legal precedent in future suits or petitions for rule-making, in which case this Court will again consider these issues on appeal. Whatever concrete action Petitioners seek at the end of the extensive administrative, legislative, or judicial proceedings that they contemplate, it is not imminent or urgent.

The Petition said that we must address climate change. The attorney general is saying we must address the Petition’s claims about climate change. Who introduced the argument that the Petition’s claims need addressing? Only our Motion to Intervene.

The Montana Supreme Court Decision

On June 15, we received the Supreme Court’s decision. They dismissed the Petition, saying,

Petitioners further contend that this trust imposes on the State the affirmative duty to protect and preserve the atmosphere, including establishing and enforcing limitations on the levels of greenhouse gas emissions as necessary to mitigate human-caused climate change.

The petition incorporates factual claims such as that the State “has been prevented by the Legislature from taking any action to regulate [greenhouse gas] emissions[.]” 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.

The State further points out that in relation to urgency and emergency factors making the normal appeal process inadequate, this action is part of a nationwide effort known as the Atmospheric Trust Litigation. The State notes that Montana apparently is the only jurisdiction in which the litigation has been filed as an original proceeding in the state’s highest court. See

We conclude this case does not involve purely legal questions. 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 said that we must address climate change. The Montana Supreme Court is saying we must address the Petition’s claims about climate change. Who introduced the argument that the Petition’s claims need addressing? Only our Motion to Intervene.

A professional view of the effect of our Intervention

Rep. Krayton Kerns emailed me,

“Had you not stepped up with the motion to intervene the AG’s response would have been tepid at best.  Once your position was filed he had no choice but to maneuver to the right of your motion, because to pansy-up then would have destroyed any future political ambitions.”


Thanks to many who stood together to defend Montanans against Our Children’s Trust, Montana became the first state in America to rule that the science of climate change is NOT settled. The court further required that environmental claims about climate change must be resolved in a lower court before a ruling or law can be made based upon the environmental claims.

Perhaps Our Children’s Trust will file a lawsuit in a lower court, most likely in Helena where they can hand pick a liberal judge. When they do, Climate Physics will organize the defense. It is surprising they have taken so long to act on what they claimed was an environmental emergency.

A final request.

Please support Climate Physics LLC  and the team that saved Montana from the environmental absurdity and economic disaster of the Climate Change Petition. Help give Climate Physics the monetary foundation to stand up to future environmental attacks. Donate to Climate Physics today by pressing the Donate button on this page.


  1. Thank you Dr Ed and The Climate Physics Institute. Without your quick response and dedication, we would have been routed once again by the outrages claims of special interests. You and your organization are heroes. I for one will be sending a donation. Anyone who reads this should dig as deep as you can in your pocket to help our watch dogs on this issue continue the good work.

  2. I always get a sad laugh at how you use the word 'environmentalist' as if it were a dirty word. Generations from now, people (assuming there are any) will look back at those who allowed the initial destruction of our environment simply as being naive, but they will find evil in those who fought for the final destruction.

  3. Back in 1970 ,America was the greatest industrial nation on the face of the earth, yes there were problems, called Acid rain. Most industries were learning how to clean up their emission. Maurice Strong and one of the Rothschild went before the United Nations and they launch the environmental movement, this was in 1971.
    Also in 1971, President Nixon announced over television that he was changing the economy of the United States from an industrial to a service economy. President Nixon also open the trade door with China. In the same year Mr. Nixon had Congress passed the Environmental Protection Act. The same year Nixon took us off the gold standard, the dollar was no longer tied to gold.The rest of the industrial world complained about the removal of gold from our dollar , so Mr. Nixon promise them we would start to buy their products. In order for America to buy their products , we had to close down all industries that produces air pollution using the EPA. Question ; If America know longer has factories the pollute , then were is all this CO2 coming from. One more thing , in 1970 the average family own one vehicle, this all started to change in 1972, to a point were how everyone owns a vehicle.

  4. Thank you Ed and others for taking care of this issue. We are blessed to have your expertise here in the Flathead and in Montana. I am also thankful that you have guts enough to take a stand against political (and scientifically inaccurate) correctness.
    Have a Merry Christmas

  5. Thank You Ed.

    I am glad you led this to a positive conclusion. Thank You for standing up for scientist, law and science. I will be making a contribution to cover your cost.

    Have a bless holiday and new year.

    To Stan Rose: Environmentalist have become religious zeolites and "useful idiots"; as a result they are destrying our country and are therfore "four letter words" or filth.

  6. To Stan Rose:

    I must assume that by "those who fought for its destruction", you mean those who fought to stay alive and live freely. Mere survival as a species, let alone the production of things that make our existence tolerable, requires the co-production of those things that, to paraphrase, "initially destroy our environment." Aside from the untenable hypothesis that activity of rational humans, in itself, can permanently and even measurably affect climate, I should remind that there is no value to be gained by making it impossible for humans to survive, because there is no such thing as "value" without humans to conceive it.
    You may try to tell me that what humans do as freely living and interacting beings threatens their survival anyway. I will concede that you are entitled to your fanciful hypotheses, and even that they have a some probability of validity. But I will tell you with 100% certainty that man will not survive (would not have survived) without using and transforming the world around him. Maybe I'm just smart this way, but it seems obvious to me that one has to go with the odds. If a person makes choices according to what could happen versus what surely will, the best outcome is complete insolvency.
    Use of the term "environmentalist" with a pejorative connotation (or as you say, as a "dirty word") is a self-inflicted wound. I, for example, can't help it if a person whom I would prefer to describe as an "idle dreamer" or a "public nuisance" arrogates another, more lofty-sounding term to himself.
    If you only get a "sad laugh" out of the comments of those with whom you take issue, I can expect that you will feel utter despair from mine. You could prevent or alleviate such tribulation, however, by reading a simple economics book. Not a political sermon that consists of a string of slogans, but a logical economics text that starts from the most basic fact of reality (scarcity) and basic theorems (human action, marginal utility, division of labor, etc.). If you are not aware of these concepts, there would be no point in further argument, because there is nothing for me to learn from you.

    And lest you be offended by my derision of your doctrines or thought process, please know that I am offended by a group of "advocates" who are generally unwilling (or unable) to abide by simple cost-benefit analysis.

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