Another Missed Opportunity
Guest post by Roger Roots, J.D., Ph.D.
Helena, Montana, June 20 – During the recent “climate kids” trial in Montana’s capitol city, the States’ defense lawyers failed to vigorously cross-examine any of the plaintiffs’ “science” experts, and did not even present any countervailing science information, despite having one of the world’s foremost authorities at the ready.
Dr. Judith Curry, former science chair at Georgia Tech University, recently recounted that the State’s lawyers removed her from their witness list mid-trial rather than use her to rebut the plaintiffs’ doomsday-science claims. Dr. Curry is widely known as one of the most prominent skeptical scientists in the contemporary climate-change debate. Dr. Curry reported that the State’s lawyers seemed to lack basic knowledge of the scientific controversies surrounding CO2 and climate change, and that they seemed unprepared to tackle the science claims of the plaintiffs.
Sixteen young people are suing the State of Montana and various State agencies with claims that the State’s energy policies favor fossil fuels, which is certain to cause future droughts, wildfires, agricultural collapse and premature death. For days, lawyers for these 16 plaintiffs presented witnesses who spoke of the bleak future, ecological collapse, and fiery landscape that awaits the sympathetic youths unless the State of Montana rapidly transitions to net zero.
Hundreds of similar frivolous lawsuits seeking to stop the alleged threat of manmade global warming have been filed nationwide in recent years. Virtually all of these lawsuits have been dismissed for lack of standing, jurisdiction or justiciability. But the Montana case, Held v. Montana, has been allowed to go to trial. Judge Kathy Seeley presides over the bench trial. (No jury is allowed, as the plaintiffs seek a declaratory judgment that Montana’s policies violate the State’s Constitutional guarantee of a “clean and healthful environment.”)
For most observers, the outcome seems almost predetermined. Judge Seeley has arguably telegraphed her assessment by denying the State’s many motions to dismiss. (Inside info for outsiders: Montana is a red state with a Republican governor and legislature; but its judiciary is decidedly liberal; maybe even hard-leftist.) It is obvious to almost everyone that the State intends to appeal Judge Seeley’s rulings to a higher court. The State mostly cross-examined witnesses about the impossibility of implementing net-zero policies; or about the minuscule role played by Montana in CO2 production.
But this should not excuse the State’s lawyers for their utter failure to challenge the plaintiffs’ easily-challengeable “science” claims. For example the plaintiffs put on several professors who emphasized a 2017 “Montana Climate Assessment” (something of a corollary to the U.S. Climate Assessment published periodically). The Montana Assessment suspiciously begins its temperature analysis in the year 1950 and excludes the voluminous temp data before that.
Montana State University Professor Cathy Whitlock, a principle author of the 2017 document, testified in the Held trial for hours, spinning a narrative of accelerating global warming due to fossil fuels. But Montana’s highest recorded temperatures—like America’s—came in the 1930s, and Whitlock’s claims could have been significantly undermined if she had been cross-examined with such basic facts.
Professor Whitlock was also allowed to testify without challenge that wildfires have increased due to CO2 in the atmosphere. Of course any 100-year chart would destroy this claim—both as it relates to Montana as well as in the United States generally. So the plaintiffs deceptively substituted maps of Montana with red-shaded blotches to illustrate this supposed (but nonexistent) increased fire activity. Similarly, Professor Whitlock claimed Montana’s farmers and ranchers are suffering from increased “uncertainty” due to CO2-caused global warming. But both Whitlock and the plaintiffs’ lawyers must know that Montana farm and ranch productivity and yields have steadily increased in recent decades.
The State’s lawyers passed up an opportunity to destroy the plaintiffs’ witnesses along these lines. Dr. Curry could have easily debunked the plaintiffs’ wildfire claims if she had testified.
The plaintiffs’ scientists also gave questionable testimony regarding mountain snowpack. Professor Whitlock testified that snowpack is decreasing in Montana’s mountains due to increased CO2 in the atmosphere. To say the least, this is contested. North American average snow cover has increased over the past 50 years; not decreased. In fact, this past year’s snowcover in the Northern Hemisphere has set records at times, and is currently (as of June 2023) at its highest ever recorded.
Another plaintiffs’ expert was Dr. Steven Running, an ecology professor at the University of Montana. Running is one of thousands of scientists who claim to have won the 2007 “Nobel Prize” for their supposed contributions to global warming science. (This was, of course, the 2007 Nobel Peace Prize awarded to Al Gore and the Intergovernmental Panel on Climate Change (IPCC) for their messaging. It was a political (er, “peace”) prize rather than a scientific award, and at least one other professor (Michael Mann) has been ordered to stop calling himself a Nobel laureate in court for this reason.
But Montana’s lawyers let Dr. Running’s testimony stand without much challenge. Similarly, the State’s lawyers allowed blatantly inaccurate testimony to go without strenuous cross-examination from retired U.S. Geological Survey scientist Daniel Fagre. Fagre is the very scientist whose predictions during the late 2000s led the National Park Service to erect signs and a large diorama saying that all of Glacier National Park’s glaciers would disappear by 2020 (some said 2030). Of all the scientists in the U.S. government, surely Fagre must be one of the easiest to discredit on cross-examination. Yet the defense lawyers barely questioned him.
Fagre testified in the Held trial that glacier melt was rapidly accelerating due to manmade climate change. Fagre claimed that these supposed changes are 100% caused by manmade CO2 and that natural phenomena contribute nothing whatsoever. Is any of this warming due to natural variability? asked the plaintiffs’ attorney. “Not at this point, no,” answered Fagre.
The defense lawyers even allowed Fagre to present his “repeat photography project” pictures of steadily-melting glaciers in Glacier Park, without calendar dates. Thus, Fagre presented old black-and-white photos of given glaciers in, say 1907—showing the glaciers looking immense—juxtaposed against pictures of the same glaciers—much diminished—taken a century later. This is mostly a trick, because glaciers melt steadily each summer. A picture taken in June will always show a glacier much larger than the same glacier will appear in late August of any year. Yet the State of Montana’s attorneys failed to challenge or even question Fagre’s sleight of hand.
Trial in Held v. Montana might be compared to the Salem Witch Trials, in which “spectral evidence” was presented without challenge. Perhaps the State intends to overturn any adverse ruling on appeal on procedural, rather than factual grounds. Montana State Attorney General Austin Knudsen has described the trial as a “waste of time.” Or perhaps the State’s attorneys don’t know enough to challenge assertions of impending catastrophic-global-warming-by-fossil-fuels. Or maybe the State’s attorneys don’t feel confident enough to launch a frontal assault on the supposedly settled “science.” Or perhaps the State’s lawyers believe they are acting out of political expedience, wagering that a full-throated challenge of manmad-global-warming claims might alienate constituents; or might invite attacks by newspaper reporters; or something.
But the State’s failure to defend fossil fuels allows the most extreme advocates of net-zero theology to essentially control the debate. For two weeks the Helena courthouse and parking lot were transformed into a carnival of signs, rallies, high-fives, and photo ops. The courtroom audience was packed to overflowing with supporters of the plaintiffs. They laughed, giggled and flashed thumbs-up hand signals when their witnesses scored rhetorical points. A community theater across the street from the courthouse displayed a live feed of the trial where observers could drink beer and cheer as they watched the trial on screen. Already the plaintiffs are claiming victory, and pronouncing that the State offered no defense because there was no defense for fossil fuels.
Judge Seeley has indicated she will render her verdict in the next few weeks.
The carnival-like atmosphere outside the courthouse in Helena, Montana.
Daniel Fagre, one of the star witnesses for the plaintiffs, had previously predicted that the glaciers in Glacier National Park would be gone by 2020. (Most observers believe there has been little or no net melting of GNP’s glaciers in at least a decade.)
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