Climate Law

There is no Global Warming in Montana

by Dr. Ed Berry

On May 4, 2011, attorneys Thomas Beers, Elizabeth Best, Randall Bishop, Amy Poehling Eddy, James Manley, and Gregory Munro, filed a “Petition for Original Jurisdiction” in the Montana Supreme Court. The Petition argued:

“Petitioners respectfully petition this Court, …, to take original jurisdiction of this proceeding and enter judgment declaring (1) that the State of Montana holds the atmosphere in trust for the present and future citizens of the state of Montana, and (2) that 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.”

The goal of this Petition was to overstep the authority of the Montana legislature and have the Montana Supreme Court order Montana to significantly reduce Montana’s carbon dioxide emissions.

This, of course, would have shut down Montana’s economy as fast as an invasion by a foreign country. The Petition wrote:

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.

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.

The problem with the Petition was it forgot to get its scientific facts correct.

Fortunately for the State of Montana, this Petition failed. It failed fundamentally because it got its scientific “facts” wrong. It claimed (wrongly) the science was settled on the claim that our carbon dioxide emissions are dangerous to our planet.

It assumed our carbon dioxide emissions were a significant danger to the planet. Its evidence was only the stated beliefs of environmental wackos, It ignored the voluminous evidence to the contrary from experienced atmospheric scientists.

On June 4, led a Motion to Intervene with 118 Intervenors, which included the following Montana legislators:

  1. Representative Krayton Kerns
  2. Representative Tom Burnett
  3. Representative Mike Cuff
  4. Representative Champ Edmunds
  5. Representative Alan Hale
  6. Representative James Knox
  7. Representative Mike Miller
  8. Representative Jerry O’Neil
  9. Representative Lee Randall
  10. Representative Keith Regier
  11. Representative Joe Read
  12. Representative Matt Rosendale
  13. Representative Dan Salomon
  14. Representative Dan Skattum
  15. Representative Cary Smith
  16. Senator Jason Priest
  17. Senator Joe Balyeat
  18. Senator Greg Hinkle
  19. Senator Verdell Jackson
  20. Senator Bruce Tutvedt
  21. Senator Chas Vincent
  22. Senator Ed Walker

(… where I have bolded the 4 Intervenors who also sit on the 2013 Senate Energy and Technology Committee that will hear SB 180 on Tuesday, February 5.) included only three documents as evidence that the Petitioners failed to produce sufficient evidence to support their claims about climate change. These exhibits were:

  1. Exhibit B: Challenging the Economics of Montana’s Climate Change Action Plan. A Peer Review by Benjamin Powell, Montana Policy Institute.
  2. Exhibit C: 1000+ International Scientists Dissent Over Man-Made Global Warming Claims. A Climate Depot Special Report.
  3. Exhibit D: Nature, Not Human Activity, Rules the Climate. Edited by S. Fred Singer, Published by The Heartland Institute

On June 14, Attorney General Steve Bullock, now governor of Montana, issued his position which substantially agreed with the Climate Physics Intervenor position.

On June 15, the Montana Supreme Court issued its Final Order, which said:

“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.”

On July 30, 2011, Quentin Rhoades, attorney for the Climate Physics Intervenors, replied to a public letter by Jim Manley, an attorney for the Petitioners, as follows:

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.

Lawyers are supposed to be objective, like scientists, and base their conclusions on facts, not unsupported beliefs. But the lawyers who promoted this Petition relied solely upon their “religious” environmental beliefs. When such beliefs are confronted with scientific data, the beliefs will fail.

Further, the Petition said its reason for going directly to the Montana Supreme Court, rather than to a lower court, was the urgency of reducing the world’s carbon dioxide emissions. It claimed stopping Montana’s carbon dioxide emissions was an “Urgent and emergency” circumstance that made “the normal litigation and appeal process inadequate.”

The Montana Supreme Court did not buy this “urgency” argument because Montana is the only state were Our Children’s Trust filed in a state supreme court. In other words, fat lotta good shutting down Montana would do if the rest of the world keep rolling out its carbon dioxide emissions.

The urgency claim is now absurd since Petitioners have made no effort to follow up with an lawsuit in a Montana Court to enforce their climate change beliefs. The promoters of the mythological climate claims have not returned to attempt to prove their case.

Will they ever return? I don’t know. Can they win? Not a chance in hell so long as the trial is fair.

In Conclusion

Montana legislators should realize they are operating under a new climate change regime. Because of this Montana Supreme Court decision, no one can legitimately make the claim that our carbon dioxide emissions are bad for our climate or for the environment.

Therefore, in the State of Montana, wind energy is not justified. All of EPA’s rules based on climate fiction are not justified. All claims and enforcement by government agencies based upon the belief that human carbon dioxide emissions are dangerous, are not justified. There is no need to stop any energy development in Montana based upon the false belief about carbon dioxide emissions.

Note that even now governor Steve Bullock, sided with when he wrote his opinion when he was Attorney General.

It’s time for Republicans to take a stand against climate fiction. From now on, any Republican who votes for a bill that will assist wind energy will be doing so with no scientific basis or legal basis.

Any Republican who supports climate mythology will be politically to the left of Governor Steve Bullock.

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