By Evan Kern | Staff Editor

March 29, 2024

—

The evidence of climate change is all around us. Microplastics, which are small particles of plastic broken down by the ocean,[1] were found in human placentas, breast milk, and blood for the first time between 2020 and 2022.[2] The year 2023 was the hottest in recorded history.[3] In June of 2023, the East Coast of the United States was suffocated by a thick fog of wildfire smoke.[4] In August, residents of Lahaina, Hawaii fled into the ocean to escape the deadliest wildfire in recent American history.[5] The nation’s largest insurance companies no longer cover homes in Florida,[6] or California.[7]

The Intergovernmental Panel on Climate Change (“IPCC”) found in its latest report that humans have indisputably caused climate change—mainly through greenhouse gas emissions.[8] The report stressed that these emissions threaten “human well-being and planetary health.”[9] The IPCC emphasized that humanity currently has a “rapidly closing window of opportunity to secure a livable and sustainable future for all.”[10]

Despite the unequivocal evidence of global warming described above, climate denialism remains rampant. Climate change denial exists where individuals reject the facts of climate change;[11] such as whether climate change is caused by human activity, whether the projected impacts of climate change are a significant concern, and whether climate change even exists at all.[12]

Former President Donald Trump called climate change “nonexistent” and “mythical,”[13] and significantly rolled back environmental policy while in office.[14] Although Trump has made some statements acknowledging the climate crisis,[15] he ultimately withdrew the U.S. from the Paris Climate Agreement,[16] which is an international climate treaty adopted by United Nations member-states.[17]

Senate Minority Leader Mitch McConnell, who once admitted to believing in human-caused climate change,[18] more recently described environmentalist policies as “climate nonsense.”[19] Unfortunately, for many like McConnell, climate activism has been discretely associated with “woke initiatives.”[20]

This harsh political rhetoric is both driven by, and fuels, rising misinformation about climate on social media in a vicious feedback loop.[21] One study found that almost fifteen percent of Americans deny the existence of climate change.[22] The same study noted how powerful and influential figures, such as Former President Trump, have utilized social media to spread climate misinformation.[23]

Contrary to within the political arena and on social media, it seems, however, that the higher standard of evidence found in the courtroom is an effective deterrent to this climate denialism. Litigants under oath can be subject to perjury for any factual statements they make during trial.[24] Furthermore, attorneys risk Rule 11 sanctions if they make factually unsupported claims.[25]

Recently, Held v. State of Montana made history as the first climate case ever to proceed to trial.[26] In Held, sixteen youth plaintiffs sued Montana over a state law which they believed was contributing to climate change,[27] in violation of their rights under the state’s constitution.[28]

Prior to trial, the state engaged in some climate denialism of its own. In their complaint, the plaintiffs alleged that “the threats posed by fossil fuels and the climate crisis are existential. Science is unequivocal that dangerous climate change is upon us and is occurring due to human activities primarily from the extraction and burning of fossil fuels.”[29] The state of Montana denied this allegation in its answer to the complaint.[30] But, shortly before trial—once it was clear the case would actually proceed to a courtroom—the state had a change of heart and stipulated to many of the plaintiffs’ climate-related factual claims.[31] Montana’s counsel then avoided discussing the facts of climate change at trial; objecting to testimony from climate experts as moot due to the stipulation.[32]

Not only did the plaintiffs in Held overcome this denialism by proceeding to trial, but they also factually proved their claims, and won.[33] Held will remain relevant not only as the first climate trial,[34] but also as a demonstration of the power of evidentiary standards in combatting climate denialism. When Montana realized it would be proceeding to trial, rather than producing evidence to support its climate denial, the state elected to shut up rather than put up.

—

[1] What are Microplastics?, NOAA, https://oceanservice.noaa.gov/facts/microplastics.html (last updated Dec. 14, 2023).

[2] Damian Carrington, Microplastics Found in Human Breast Milk for the First Time, Guardian, https://www.theguardian.com/environment/2022/oct/07/microplastics-human-breast-milk-first-time (Oct. 7, 2022).

[3] 2023 Was the World’s Warmest Year on Record, By Far, NOAA, https://www.noaa.gov/news/2023-was-worlds-warmest-year-on-record-by-far (Jan. 12, 2024).

[4] Tyler Clifford, US East Coast Blanketed in Veil of Smoke from Canadian Fires, Reuters, https://www.reuters.com/business/environment/us-states-under-air-quality-alerts-canadian-smoke-drifts-south-2023-06-07/ (Jun. 8, 2023).

[5] Melissa Chan, They Fled the Maui Wildfires by Jumping into the Ocean. Then They Needed to Survive the Sea., NBC NEWS, https://www.nbcnews.com/news/us-news/fled-maui-wildfires-jumping-ocean-needed-survive-sea-rcna100226 (Aug. 18, 2023).

[6] Ed Leefeldt, Why Is Homeowners Insurance In Florida Such A Disaster?, Forbes: ADVISOR, https://www.forbes.com/advisor/homeowners-insurance/why-is-homeowners-insurance-in-florida-such-a-disaster/ (last updated Aug. 28, 2023).

[7] Michael R. Blood, California Insurance Market Rattled by Withdrawal of Major Companies, AP, https://apnews.com/article/california-wildfire-insurance-e31bef0ed7eeddcde096a5b8f2c1768f (Jun. 5, 2023).

[8] IPCC, Climate Change 2023 Synthesis Report Summary for Policymakers 4 (Hoesung Lee et al. eds., 2023).

[9] Id. at 24.

[10] Id.

[11] Jeremiah Bohr, The Structure and Culture of Climate Change Denial, Footnotes: Mag. Am. Sociological Ass., Summer 2021, https://www.asanet.org/footnotes-article/structure-and-culture-climate-change-denial/.

[12] Id.

[13] Helier Cheung, What Does Trump Actually Believe on Climate Change?, BBC, https://www.bbc.com/news/world-us-canada-51213003 (Jan. 23, 2020).

[14] Id.

[15] Id.

[16] President Trump Announces U.S. Withdrawal From the Paris Climate Accord, The White House: Archives, https://trumpwhitehouse.archives.gov/articles/president-trump-announces-u-s-withdrawal-paris-climate-accord/ (Jun. 1, 2017).

[17] The Paris Agreement, UNFCCC, https://unfccc.int/process-and-meetings/the-paris-agreement.

[18] Jordain Carney, McConnell: ‘I do’ Believe in Human-Caused Climate Change, HILL, https://thehill.com/homenews/senate/435904-mcconnell-i-do-believe-in-human-caused-climate-change/ (Mar. 26, 2019)

[19] Julia Mueller, Buttigieg Pushes Back on McConnell Criticism of ‘Woke Initiatives’, HILL, https://thehill.com/homenews/administration/3877254-buttigieg-pushes-back-on-mcconnell-criticism-of-woke-initiatives/ (Feb. 28, 2023).

[20] Id.

[21] Rachel Ramirez, What is ‘New Denial?’ An Alarming Wave of Climate Misinformation is Spreading on YouTube, Watchdog Says, CNN, https://www.cnn.com/2024/01/16/climate/climate-denial-misinformation-youtube/index.html (last updated Jan. 17, 2024).

[22] Nayiri Mullinix, Nearly 15% of Americans Deny Climate Change is Real, AI Study Finds, U. Mich.: MICHIGAN NEWS, https://news.umich.edu/nearly-15-of-americans-deny-climate-change-is-real-ai-study-finds/ (Feb. 14, 2024).

[23] Id.

[24] 18 U.S.C. § 1621.

[25] Fed. R. Civ. P. 11(c).

[26] Matthew Grabianski, What Held v. Montana Immediately Offers for Constitutional Environmental Rights, Geo. Env’t L. Rev.: Blog (Nov. 16, 2023), https://www.law.georgetown.edu/environmental-law-review/blog/what-held-v-montana-immediately-offers-for-constitutional-environmental-rights/

[27] See generally Complaint, Held v. Montana, No. CDV-2020-307 (1st Dist. Ct. Mont. Mar. 13, 2020) (hereinafter “Complaint”).

[28] Mont. Const. art. II, § 3

[29] Complaint, supra note 27, at 3.

[30] Trial Tr. vol. II at 118–19, Held v. Montana, No. CDV-2020-307 (1st Dist. Ct. Mont. 2023).

[31] Id.

[32] Id.

[33] Held v. Montana, No. CDV-2020-307 at 102 (1st Dist. Ct. Mont. 2023).

[34] Grabianski, supra note 24.