Held v Montana – Day 6

GAFTG Founder Maya van Rossum is in Montana giving live coverage of the trial from her perspective as a national expert on constitutional environmental rights. Read her breakdown of the most poignant moments in the courtroom from the trial:

Day 6, the next to last day of the case – as it turns out – was a bit surprising.

This was the first day of the State’s case to defend themselves. By the end of the day it was clear that this was all they had.

We learned last week that the State was pulling one of its “experts”, Dr. Curry. Plaintiff’s experts had been challenging the expert reports to come of Dr. Curry and Dr. Anderson. The testimony challenging the two experts made it clear that both State witnesses had done a less than a stellar job in helping to advance the State’s case.  So it was a surprise, but no surprise, when the state announced the pull back of one of its experts from the case.

We heard from 3 witnesses.

Chris Dorrington

Chris Dorrington, the Director of the Montana Department of Environmental Quality (DEQ) took the stand first. Mr. Dorrington testified to the process for reviewing and issuing environmental permits in the state. His testimony was not surprising.

Well the beginning of his testimony actually was surprising. He began by saying “I don’t understand why DEQ is a defendant in this case.”

My only thought was REALLY?  You are the permitting agency charged with protecting the state’s and natural resources!

From there Director Dorrington suggested he was entirely hamstrung by the Montana legislature, unable to consider the climate changing impacts of the decisions and actions his agency undertook.  This same line of powerlessness was taken by the next witness, Sonja Nowakowski, the Administrator of Air, Energy and Mining at the DEQ.

Both witnesses suggested that because the state legislature had not empowered the DEQ explicitly to consider the climate changing ramifications of their actions and decisions that they had no power to consider them. The fact that the constitution recognized the inalienable right of the plaintiffs to a clean and healthful environment did not change their perception or interpretation of their legal or constitutional obligations.

Let me interject here – there is plenty of case law in all 3 Green Amendment states (Pennsylvania, New York and Montana) to make clear that compliance with state legislation and regulation does not necessarily equate to compliance with the state constitution. The constitutional obligation guides interpretation, application and compliance with the constitution, it is not the other way around.

Sonja Nowakowski

For most of the day, the two state agency witnesses asserted they were powerless to comply with the constitutional obligation to protect the environmental rights of the people of Montana.

The day ended with the state calling up one of the two experts they had secured expert reports from. Dr. Terry Anderson was asked only a few questions: What is the global level of greenhouse gas emissions in the year 2020 and the year 2022? What are the levels of greenhouse gas emissions from Montana for the same two years?  What is the percentage of Montana’s emissions as compared to the whole world?  How much land is in federal control? And how much is in tribal control?  That was it!  A few numbers and percentages.

Dr. Terry Anderson


And still, the attorneys for the youth plaintiffs were able to mount a powerful cross examination challenging the figures put forth by the witness and his credibility as an expert. Time and time again the plaintiff attorneys were able to prove that the state’s expert, Dr. Anderson, had failed to put forth accurate data and information.

When the line of questioning advanced by the plaintiffs attorneys was questioned by that sate the judge asked: are you going to show me his numbers are wrong?

The response? “100%. Absolutely. We are going to show that all of the numbers this expert has put forth are 100% wrong.”

The youth plaintiff attorneys effectively drew into question the testimony of Dr. Anderson, based on the questionable figures presented.

It is notable, that the plaintiff attorneys secured a notable admission. Dr. Anderson admitted he was being paid $500 an hour as compared to the plaintiff experts who were paid $0 for their expert analysis and testimony.

The day ended early with the youth plaintiff attorneys needing additional time to look up the data claims of Dr. Anderson.

The case will reconvene Tuesday morning with this final piece of data and testimony before both parties rest their case.

A surprising and quick close to a powerful trial.