Listen to Jenny Rushlow, dean of the Maverick Lloyd School for the Environment, professor of law, and faculty director of the Environmental Law Center at Vermont Law and Graduate School talk about the Montana Court's ruling on Held v. State of Montana, how it relates to other cases such as the landmark climate law case she argued and won before the Massachusetts Supreme Judicial Court, Kain v. Department of Environmental Protection, and how these cases advance environmental advocacy and justice.
Listen to Jenny Rushlow, dean of the Maverick Lloyd School for the Environment, professor of law, and faculty director of the Environmental Law Center at Vermont Law and Graduate School talk about the Montana Court's ruling on Held v. State of Montana, how it relates to other cases such as the landmark climate law case she argued and won before the Massachusetts Supreme Judicial Court, Kain v. Department of Environmental Protection, and how these cases advance environmental advocacy and justice.
Announcer
This podcast is a production of the Maverick Lloyd School for the Environment at Vermont Law and Graduate School.
Host Laura Ireland
Hello, everyone. This is Laura Ireland, associate director of the Animal Land Policy Institute here at Vermont Law and Graduate School and host of the Hothouse Earth Podcast. I'm excited to be talking with Dean Jennifer Rushlow about the recent decision Held versus State of Montana. Jennifer Rushlow, dean of the Maverick Lloyd School for the Environment, professor of law, and faculty director of the Environmental Law Center at Vermont Law Graduate School.
Host Laura Ireland
And she's the perfect person to share her thoughts about this important case and what it might mean for climate change litigation moving forward. Dean Russo received her juris doctorate from Northeastern University School of Law and Master of Public Health from Tufts University School of Medicine. Dean Russell practiced law at the nonprofit advocacy organization Conservation Foundation and law firm Anderson and Krieger in Boston.
Her practice focused on environmental and land use law, climate change, agriculture, transportation and environmental justice. While CLF Dean Roush argued and won a landmark climate law case before the Massachusetts Supreme Judicial Court case versus the Department of Environmental Protection, we'll be talking more about the key decision, the similarities and differences with the help case. Because of this work, she was named a 2016 Lawyer of the Year by Massachusetts Lawyers Weekly.
Welcome, Dean Rushlow.
Dean Rushlow
Hello, Laura. Great to be here.
Host Laura Ireland
I think it's so great and fortunate for the students to be learning from faculty such as you have real-world experience that can bring those experiences into the classroom and program development. And so here at the yes, you're quite the leader and I've learned many hats. So just want to begin just talking about your role and positions at Field.
Dean Rushlow
So I was hired to come in and basically lead our environmental programs. The school has quite a long history as a leader in environmental law and policy. And then in addition to that, I've played a role in developing some new environmental law and policy master's degrees, which was part of building out a strategic plan over the last few years where we built the graduate school and the Maverick Lloyd School for the environment within it, really growing from being a school with primarily law expertise to now also more clearly highlighting our expertise as public policy experts.
Host Laura Ireland
So can you also tell us a little bit more about the Environmental Law Center and why you were drawn to teaching and working here?
Dean Rushlow
So when I was practicing law in Boston, I encountered graduates of then Vermont Law School constantly Conservation Law Foundation. Many of my colleagues attended Vermont Law School and so I was running into people all the time who developed their expertise at the school, and I hired many interns and ex and recent graduates for positions at various points along the way and the knowledge that those students and lawyers had really right out of the gate in terms of a real depth of understanding around environmental law like a level of specificity that you just didn't find from people that were educated at other schools was really unique.
And because of that, I think practitioners in environmental law think of Vermont Law School and now Vermont Law and graduate school as really having that specialization and producing lawyers that have a really deep grounding in the specifics of environmental law and that was really attractive to me. You know, what's driven me in my career is wanting to be an advocate for change, for the environment, for in particular for protecting human health as it relates to environmental degradation and it's being an advocate that really motivates me.
And I saw an opportunity to help shape the next generation of advocates and lead the program in the direction that I see environmental law and policy going. You know, the school is a place that had really already demonstrated that it understood what I think of as like next-generation environmentalism, where, yes, it's still very important to study and practice water law and public lands law, natural resources law, and some of the things that are more traditional in the environmental law space.
But environmentalism also includes now things like agriculture and transportation and urban communities and working communities, and finding that right balance across the economy, the environment. And I really liked how the school was navigating that and the Environmental Law Center at the law school, because the Environmental Law Center is the locus of our environmental activity within Vermont Law School is really the hub of the bicycle wheel of environmental programs and activities at the school.
So we get to oversee and work with all of our excellent programs, from energy to agriculture to animal law that the school has. So it's a it's a pretty exciting place to be. We have a lot going on.
Host Laura Ireland
Yeah, I agree. So with the new Maverick Boyd School for the Environment, how does this also fit in and what's what's your vision for this school and how it can play a role in in furthering all of these programs?
Dean Rushlow
Yeah. So just as the Environmental Law Center is the locus of activity at the law school, the Maverick Lloyd School for the Environment is the locus of our environmental activity at the graduate school. So I think of it really as a very specialized public policy school where we're teaching the skills and practices that students need to go out and be policy experts in environmental law, whether that's making policy themselves advising policymakers, even working internally in the private sector, advising their clients on how to navigate public policy, those are skills that overlap quite a bit with the law.
And so it's one of the really unique qualities of the Maverick Lloyd School that it's situated beside the law school. And so the students get to learn a great deal about law. But the fact that it also includes, you know, strong backbone curriculum in the skills of public policy from quantitative analysis to research skills to policy design to environmental economics, that's really building out in an area that strengthens our master's degrees in a way that's a little different from what we've done with the J.D. Yeah.
Host Laura Ireland
As we're launching into the new school year, it's been great to see all these students who are here for the Master's programs, who have been here for quite some time. And then also a lot of our new programs as well. So want to dive into this recent decision of Held versus State of Montana. And obviously, there is policy work that made that change in the Montana constitution and then the legal realm that was able to move this case forward on behalf of the plaintiffs.
So if you want to give a little background about the case for our listeners, and I would love to talk a little bit more about how this also relates to some of the earlier work that you've done in your career.
Dean Rushlow
Yeah. So the case held by Montana is a constitutional law case, as you mentioned, it was filed by 16 youth in Montana that sued state government defendants, including the governor of the Montana Department of Environmental Quality and a number of other agencies. And that was filed in 2020. The nonprofit Our Children's Trust, that's behind the Juliana case is also behind the held the Montana case.
And so it reflects a certain style that has come to be sort of emblematic of the Our Children's Trust approach, I would say, although each of those cases is different, they have litigation across the country, but each of those cases reflects unique circumstances in the jurisdiction that they're in. This case really turns on the constitutionality of a specific provision in state law in Montana.
So some people may have heard of the National Environmental Policy Act. Many states have their own versions of that. In Montana, it's called the Montana Environmental Policy Act. And these laws are designed really to provide disclosure and transparency opportunities so that when new projects are being built, the agencies that are committing them are making visible to the public what the environmental impacts of that project are and showing the fact that the state has been aware of and considered them as part of gearing up for the permitting process.
So in Montana, that's called NEPA, the Montana Environmental Policy Act. And what's really unique about NEPA is that it has an exception that other states tend not to have. It prohibits Montana agencies, when they're evaluating the environmental impacts of a project, prohibits them from considering greenhouse gas emissions and their corresponding impacts to climate in the state or beyond the state's borders.
So essentially, state agencies are not allowed to consider climate change the impacts of a new project to climate change when they are assessing new projects heading into the permitting process. Interestingly, before this lawsuit was filed, the language of that exemption to me was a little less obvious about what it was trying to do. So I believe it was adopted in 2011, and this is by the legislature because this is a statute.
And what the exemption previously said was that agencies couldn't consider actual or potential impacts beyond Montana borders or that are regional, national or global in nature. And even though the words climate and greenhouse gas emissions are included in that language, it was understood to be the climate change exemption. So that's what was in place when these youth filed this lawsuit.
During the lawsuit, as a result of the lawsuit, and in response to the lawsuit, the legislature decided to double down and make it extra clear what they were trying to do, and they amended the language of the exemption and then the governor signed it and made it law so that we now have the new language that says that agencies cannot consider greenhouse gas emissions or climate impacts.
So that really tells you a lot in itself about the internal politics in Montana. Yeah, everyone was paying attention to this lawsuit and there were lots of moving pieces while it was going on.
Host Laura Ireland
So what was the ultimate decision in this case and why is it really being heralded as such a landmark decision?
Dean Rushlow
Yeah, well, so from a from a legal standpoint, the court declared this exemption to the EPA statute unconstitutional, and that is a very big deal. You know, that the court determined that the Montana Constitution provides that all persons are born free and have certain inalienable rights that include the right to a clean and healthful environment. And the Montana constitution goes on to say that the state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations.
So the Montana constitution goes pretty far in making very clear that we're talking about a clean environment, a healthful environment as a fundamental right. And so because the Constitution in Montana provides a fundamental right to a clean environment, that means that the statute that is being alleged to be unconstitutional, the court will apply the strict scrutiny standard, which for all of our constitutional law students and fans, that will sound familiar, which means that the law can only survive a challenge if it if the state establishes a compelling state interest and that their action is narrowly tailored to effectuate that interest.
And the court found that the legislature did not do that here with this NEPA exemption. And that therefore it's facially unconstitutional because it takes away the state's ability to even consider greenhouse gas emissions and climate change impacts, which furthers degradation to the environment and the harm that the plaintiffs have established. So from a legal conclusion standpoint, that's huge.
But I also want to focus on the findings of fact that are in this case. So something big about this case is that it made it all the way to trial. That alone makes it stand apart. I don't think any other climate case that I'm aware of certainly not of this kind has made it through all of the procedural hurdles and not been dismissed to make it to the point of trial.
So at trial, the court heard from experts, they heard testimony of witnesses, and as a result of that, the judge in this case created a very detailed record laying out all the ways in which we know that the science shows a consensus that the Earth is warming due to burning fossil fuels, that the state knew of the dangerous impacts of greenhouse gas emissions and climate change, that their performance of their government duties has resulted in greenhouse gas emissions and climate change.
Just pages and pages and pages laying out these facts and I think that the judge knew that no matter the outcome on the legal side, having that record, establishing these very important facts around climate change was in itself going to be very important. And we can talk about the significance of this case, that climate change litigation in general.
But I think one of the biggest contributions is it forges a pathway and lays out a map for other courts that may feel nervous and uncertain about how to proceed with cases like this and gives them something to look at as an example.
Host Laura Ireland
Yeah, very interesting. And especially now that the Juliana case after so many years is that moving forward as well. And if you want to talk a little bit about how about that case and how you think that and how the case might influence that case and other ones moving forward. And also don't want to forget about kind of the parallels with the Kane case that you had in Massachusetts.
Dean Rushlow
Yeah. So with the Juliana case, that's sort of the primary example of this youth climate litigation movement that we have. It's in federal court. And so that means that the plaintiffs are suing the U.S. government, whereas the Montana case was in state court in Montana, and state court decisions are not binding in federal court. And so this decision that we have in Montana, I think is useful in that.
I just have to imagine psychologically for judges, it is helpful to see how other courts have done it, even if the precedent is not binding on the matter in front of them. And Juliana turns on some different legal issues than the Montana case does. But what we've really seen with climate litigation, particularly in the United States, but to an extent worldwide, is that the courts just cannot find their footing.
They're sort of tossing around this hot potato of trying to figure out, well, it doesn't seem like we're the right people to take up this issue. It's either a different court or probably Congress. But what do we do when Congress isn't doing anything and we haven't been able to make any progress and there are some real legal reasons that stand in the way of these cases from being able to go forward.
But personally, I think it's also a lack of willingness from judges in the court system, which is backward looking generally. Right. That court decisions are based on prior precedent. So charting a path forward and doing something that hasn't been done before is not the strength of the judicial system. So any examples we have of what this might look like, I think we'll we'll have to make a difference.
Host Laura Ireland
Right, to create new pathways and chart, you know, the issues and different ways of viewing the law and how the law should be applied.
Dean Rushlow
Yeah, absolutely.
Host Laura Ireland
So I want to chat a little bit about, you know, your efforts in the Kane case and then kind of what you see there were some similarities and some differences in your work in Massachusetts.
Dean Rushlow
Yeah. So the King case in Massachusetts, like Montana, it was a state case centered around climate change and it involved youth plaintiffs. There were also some NGO plaintiffs. It wasn't only youth. So that's one distinction. And what we were working with in Massachusetts was that the legislature had passed a sweeping climate law in 2008 that was very broad.
Like many states that have these broad climate laws generally called the Global Warming Solutions Act. And these laws are very helpful for requiring data collection and agency has to come up with plans for what they want to do. But what these state laws tend not to be as strong in is being really specific about how these big picture climate reduction mandates affect individual polluters and how the government is going to hold them accountable for getting to climate reduction goals.
So what happened in Massachusetts was that the statute required the state agency, the Department of Environmental Protection, to issue regulations implementing the statute. They had a timeline by which they had to do that, and they didn't do it. And I was at Conservation Law Foundation at the time, and the organization tried talking to the agency. You know, this is what the law requires and we're going to do something about it if you don't issue these regulations.
And they did it. So we sued them and the case went all the way up the court system to the Supreme Court in Massachusetts, where we won. The court found that the agency was required to issue regulations that would establish declining emission limits year by year for greenhouse gas emissions for different sectors of the economy. I wrote an article in my colleagues who read about this that really lays out the strategy behind the case, which I hope is helpful to advocates doing this work in other places.
It's called Behind the Curtain. It was published in the environmental law. Reporter But we really made that a narrow legal issue. We could have brought in constitutional claims. We could have brought in the public trust doctrine and used legal strategies that look a little bit more like Juliana or the Montana case, I think is actually more narrow than than maybe some realized.
But we were focused on an existing statute in the government's failure to act in a very specific way. And we did that because we thought it gave the court more to work with. It made it less of an intimidating decision to focus on that more narrow legal issue. And I do think that's one of the reasons we were successful.
Host Laura Ireland
Yeah, that's so interesting. And also so that kind of brings up again, like why I think religious is such a wonderful place for people to come learn how to be effective environmental advocates is that we have people like you who are teaching these classes and we have so many clinics that focus on so many of these different areas.
And because it's so interesting and so important to learn the strategy behind all of these decisions and, well, you know, reading case books and and there's all sorts of things to learn in the traditional law school classroom. I love that people are able to hear these important strategies in terms of ways to move forward. Also want to kind of highlight that there are some alumni from Fields who were involved in the Montana case.
Dean Rushlow
Yeah. Yeah great to see So and Hedges, who got her master's degree at Ben Vermont Law School, is at the Montana Environmental Information Center and she was an expert called by the plaintiffs to testify on the defendant's actions and how they contribute to climate change and the plaintiffs’ harm. And the court found her testimony to be credible and cited it in its factual findings.
Interestingly, the expert that the defendants put up as their expert economist on those same issues was found by the court that their testimony was not well supported, contained errors, and was not given weight by the court. So that certainly looks a little sloppy on behalf of the defendants per well.
Host Laura Ireland
It's good we have our well-trained biology alumni out there doing important work. Well, thank you so much for sharing your amazing expertise in this area. And is there anything else that you want to share words of inspiration for these cases moving forward in the future?
Dean Rushlow
First of all, I just want to note the incredible courage and hard work it takes to be plaintiffs in these cases. I mean, you know, they're being deposed, being asked difficult questions about the mental health impacts of climate change on their lives. They're being asked about their physical health and it is a lot for a kid to go through.
And I just continue to be amazed at these individuals and their tenacity and courage and being involved in these cases. I think that's pretty incredible. And I also want to say, you know, as someone who has worked on a case like this where it basically took over my life for a couple of years, you win some of these cases and you lose some.
I'm glad we won in Massachusetts. I'm glad things are going well in Montana. But as a professor, I feel like sometimes we find ourselves in the role of nitpicking, finding all the ways in which a legal strategy could be better. And I just want to say thank you to everybody who is out there litigating these cases. It is incredibly hard work.
It is a vulnerable place to be. There are people out there in the trenches and it's going to take every possible legal strategy and every other kind of advocacy strategy to try and make a dent in climate change. So thank you to everybody who's trying to find ways to do it. Whether you win the first time or not.
Host Laura Ireland
Very well said. Yes. Well, thank you, everyone, for joining in this conversation. We'll be back again at the Hothouse Earth podcast.
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