Lever Time with David Sirota

On this week’s episode of Lever Time, Julia Rock and Frank Cappello speak with environmental lawyer Julia Olson to discuss a recent historic win for young climate activists who she represents in Montana. 

This past Monday, a judge in Montana ruled that young people are entitled to a “clean and healthful” environment. The case, known as Held v. Montana, included 16 plaintiffs ages 5 to 22, who testified that the state government’s pro-fossil fuel policies were unconstitutional. Held v. Montana was the first of several youth-led U.S. climate lawsuits to make it to trial. 

Olson is the executive director and lead counsel for Our Children’s Trust, a nonprofit public interest law firm that represents plaintiffs in a number of these youth-led state climate cases as well as in a federal lawsuit, Juliana v. United States. Julia and Frank spoke with Julia Olson about this historic win, how the case’s legal strategy can be applied across the country, and why the Biden administration is attempting to prevent other youth-led climate lawsuits from going to trial. 

A transcript of this episode is available here.

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What is Lever Time with David Sirota?

From LeverNews.com — Lever Time is the flagship podcast from the investigative news outlet The Lever. Hosted by award-winning journalist, Oscar-nominated writer, and Bernie Sanders' 2020 speechwriter David Sirota, Lever Time features exclusive reporting from The Lever’s newsroom, high-profile guest interviews, and expert analysis from the sharpest minds in media and politics.

Frank Cappello: [00:00:00] Hello everyone and welcome to another episode of Lever Time I am producer Frank Capello filling in for David Sirota this week.

On today's show, we will be talking about an historic win for climate activists. This past Monday, a judge in Montana ruled in favor of a group of young people who accused the state's government of violating their right to a healthy environment.

This youth led climate lawsuit was the first of its kind in the country to make it to trial. So this is truly, truly... A huge victory for the youth led climate movement.

For today's interview, we will be speaking with Julia Olson, the executive director of Our Children's Trust, an organization spearheading some of these youth led climate lawsuits around the country, Including this past week's in Montana. our paid subscribers, we are always dropping bonus [00:01:00] episodes into our Lever Premium Podcasts feed. Next week, we will be sharing our interview with historian Harvey K. and progressive activist Alan Minsky about the unfinished business of FDR's Economic Bill of Rights.

Harvey and Alan have been advocating for a 21st century economic bill of rights, and they break down what it entails, and why it is needed now more than ever.

If you want access to Lever Premium Podcasts, head over to levernews. com and click the subscribe button in the top right to become a supporting subscriber. This gives you access to Lever's premium podcasts, our exclusive live events,

even more in depth reporting, and you will be directly supporting the investigative journalism that we do here at The Lever.

So before we get to our interview with Julie Olson, first I want to talk about a story that we published this past week here at The Lever about so called Bidenomics.

Now if you've been ingesting corporate media, you've probably heard the refrain that Joe Biden's economic recovery policies, aka Bidenomics, have vastly [00:02:00] improved the American economy.

Broad indicators like gross domestic product and unemployment have improved, and inflation is more or less coming down as well. And if you personally have not felt the Joe mentum of Bidenomics, well, that's probably because you don't understand how economics work. Or, you're just an angry Republican who won't give Biden the credit he's due. Or at least that's the line you may have heard from liberal pundits on MSNBC But according to this past July's Census Bureau survey for the first time under the Biden administration, food insecurity rates have risen above 12%.

And average financial hardship and food insecurity rates this year exceed the previous three years.

In other words, Americans are directly reporting experiencing more financial hardship and food insecurity now than they have in the last three years. So what changed? Well, mostly the expiration of pandemic era social programs that [00:03:00] were actually effective at reducing poverty and food insecurity.

These were programs and policies such as the nationwide eviction ban, enhanced child tax credits, expanded family food assistance, additional child care provider grants, extended unemployment benefits, and others.

Now I would recommend, if you're interested in this topic, go on over to levernews. com, check out this story. because It's packed with even more details than I am laying out here. And it's very important because there are not a lot of news outlets that are offering much of a counter argument to what we are hearing MSNBC, or the Biden administration.

What they've been saying is, the economy is great, and if you don't get that, it's because you don't understand it, or because you're acting in a partisan matter. But as this story lays out, we have the data that shows that people are feeling more financial anxiety and hardship now than they have in the last three years.

So again, head on over to levernews. com, and check out the great reporting our team has done on this topic. Alright, I'm gonna stop there so we can [00:04:00] get to our main interview with environmental lawyer Julia Olson, who, again, helped win this historic climate lawsuit in Montana this past week.

That's coming up right after a quick break.

Welcome back to Lever Time. For our main story today, we're gonna be talking about a truly historic win for climate activists in the United States. This past Monday, a judge in Montana ruled in favor of a group of young people who accused the state's government of violating their right to a healthy environment.

The case, known as Held v. Montana, included 16 plaintiffs whose ages ranged from 5 to 22. Who testified during the trial this past June that the state government's pro fossil fuel policies violated provisions in the Montana State Constitution that guarantee a quote, clean and healthful environment.

Of course, the win in Montana isn't a done deal. The Montana government now has 60 days to Appeal and a spokesperson for Montana's Republican attorney general called the ruling quote absurd and described the [00:05:00] trial as a quote taxpayer funded publicity stunt

but this win is a huge indicator for how some of these other youth led climate lawsuits around the country may go. There are similar lawsuits in states like Florida, Hawaii, Virginia, and Utah. And then there's also the landmark Juliana v. United States, which is utilizing the same legal strategy on the federal level.

On June 1st, a federal judge ruled that that case, Julianna v. United States, can proceed to trial, which is another big win. However, Joe Biden's Department of Justice is continuing to file motions to delay or dismiss the case.

You heard that right. Joe Biden, Mr. I wanna work with youth climate activists. His Department of Justice is actively trying to stop the Giuliana v. United States case from going to trial. They do not want it to happen.

So, for our interview today, we were very lucky to be able to speak with environmental lawyer Julia Olson. Julia is the executive director of Our Children's Trust,[00:06:00] a non profit law firm which represents a number of these youth led climate lawsuits, including Held v.

Montana and Juliana v. United States.

Myself and the Leverage Julia Rock spoke with Julia Olson about the historic win in Montana, how their strategy is being used in cases around the country, what the opposition has been from the Biden administration and what a potential outcome could look like if any of these cases were to eventually reach the Supreme Court.

We are now joined by Julia Olson. Uh, Julia is the executive director and lead counsel of Our Children's Trust. Julia, thank you so much for being here today.

Julia Olson: you for having me.

Frank Cappello: Uh, and we're also joined by another Julia, The Lever's Julia Rock, one of our, uh, main climate reporters.

Julia, thank you for being here too.

Julia Rock: Yeah, thanks for having me on, Frank.

Frank Cappello: so Julia Olson, uh, first off, we want to just say congratulations on the big win in Montana, you know, I know that Monday's ruling is just one step in a long legal process, but you know, it's important to [00:07:00] celebrate wins when they happen. So I hope you and your team are are celebrating.

Um, but of course, There is the next step. So, the Montana government has, uh, 60 days to appeal the, decision, and we are assuming they will. So, what are you expecting will happen next for this case in Montana?

Julia Olson: We are definitely celebrating, and are preparing for the case to go up to the Montana Supreme Court, where that court will be asked to review the decision of the trial judge. And when Supreme Courts do that, they defer to the factual findings. So all of the evidence that the court found will be deferred to, and then we'll decide whether she applied the Montana Constitution correctly.

And we're anticipating we will have arguments before the Montana Supreme Court, likely next spring.

Frank Cappello: what would a complete victory in Montana look like? In other words, when do you reach the point in the [00:08:00] legal process where the opposition has exhausted all of their options?

Julia Olson: After the Montana Supreme Court reviews this decision on the merits after trial, then we are at the end of the case. And then we move to, really, the implementation and enforcement phase.

Julia Rock: so the core argument of the lawsuit, what the plaintiffs are alleging is that the state government's pro fossil fuel policies violated provisions in the state constitution that guarantee a clean and healthful environment. Are these youth led climate lawsuits able to replicate the same strategy in different states with different constitutions?

Or does each state sort of require its own legal strategy?

Julia Olson: So the constitutions across our states in the country, they have a lot of commonalities. So our constitutions protect rights to life and liberty. They typically protect rights to health and safety and dignity and equal protection of the law. And then there are, [00:09:00] Roughly 10 state constitutions that have some explicit protection for environmental rights or rights to clean air and water, natural resources. And one thing that's really important about what Judge Kathy Seeley ruled in the Montana case is that yes, the climate right is part of The plaintiff's right to a clean and healthful environment, which is explicit in the Montana Constitution. But she said that climate right is also part of their right to dignity and to health and safety and to seek happiness and equal protection of the law.

And so this decision is very replicable across the United States. It's under different state constitutions, and it will also have a really, uh, strong influence on what happens at the federal level under the U. S. Constitution in our Juliana versus United States litigation.

Julia Rock: And I wanna get to that case in in just a minute, but I just wanted to [00:10:00] ask briefly about some of the other state cases in Florida, Hawaii, Utah, Virginia. Obviously with the wildfires in Maui, there's some attention on the Hawaii case. Is there anything sort of unique in any of those cases that set them apart from what happened in Montana?

Um, or any sort of novel legal strategies? Are they all somewhat similar?

Julia Olson: There are similarities in all of our Children's Trust cases, and I'll tell you the similarities are we only represent youth across all our cases. We only bring in the best scientific evidence available, and we're looking for standards that are based on science from our courts, and we're bringing forward human rights and protecting those basic rights of youth.

And so So, um, Those are the commonalities. What differs is some state constitutions are slightly different. And what's most different is the conduct of the states themselves. So Montana is a case that is [00:11:00] rich in fossil fuel reserves. And as a result montana wanted to really exploit all of those fossil fuel resources and develop them, even though they don't need them for their own energy supply, they can power their economy on 100% clean, renewable energy, but they want to export all of those fuels abroad, right? And they have laws on the books that really supported that activity and required the state to turn a blind eye to climate change. So compare that with the state of Hawaii. Which is another one of the, the governments that we're suing in a case on behalf of 14 young Hawaiians, including native Hawaiian youth. And Hawaii has been a leader on climate crisis for a long time. They've actually adopted laws that require the state to be off of fossil fuel energy pretty much by 2045.

Um, so really aggressive laws on the books. And they have a great constitution. That explicitly protects the right to a healthy environment and [00:12:00] public trust resources. It's one of the most evolved constitutions in the United States because it's one of the most recent ones, frankly. So they wrote down more rights than in other constitutions. And they have a strong indigenous tradition which is also incorporated there. But what Hawaii is doing is their transportation system. is very dependent on fossil fuels and their emissions are actually increasing rather than decreasing. And so they're not going to hit their targets. They're going in the wrong direction.

And it's because of a lack of good planning and policies on the books in Hawaii. And so we're challenging the transportation system and the emissions coming out of that in Hawaii.

Frank Cappello: I'm curious because you mentioned it that our children's trust is only working on these cases that represent youth. I'm curious kind of what the thought process is behind that Is it because the youth have more life to live on this earth, therefore they'll be experiencing the impacts of climate change longer?

Julia Olson: That's definitely [00:13:00] one part of it. There's a couple of reasons though. Experts like pediatricians, public health experts, scientists are really understanding, you know, in the last Two decades, especially that children's bodies are going to experience climate change worse than an adult body. So they're not just younger, but they're physiologically different.

They're in the stages of development where their lungs and their brain and their immune system is developing. And so they're actually harmed worse physically and. Emotionally and in terms of their mental health, there's a real climate anxiety crisis happening among our youngest generation and on top of that, they will live on the planet a lot longer.

They will be alive at the end of the century when we will see some of the worst consequences of sea level rise and other things, creating an unlivable planet, frankly, if we don't turn things around. And then the last reason is Young people who are under [00:14:00] 18, they do not have the right to vote. So they have no political power or say in the decisions that adults are making today.

And so the concept of children's rights in our cases is really, really important. They're entitled to all the protection of the law as an old guy who's running the show in D. C., right? but they have no power. And so the courts are the one branch of government that are required. To listen to them when they come forward and say, Hey, my government is harming me.

Frank Cappello: Thank you for laying all that out. So we talked a little bit about these state lawsuits. Uh, now I would like to turn to Juliana versus United States, which is the lawsuit currently making its way through the federal court system. Can you go into a little bit of detail about the core argument for this case?

Is there anything that distinguishes it, other than being in the federal court system rather than the state court system, that distinguishes it from these other cases?

Julia Olson: The Giuliana versus United States case is, I think one of the biggest climate cases on the [00:15:00] planet, and perhaps the most important because of the United States role in causing the climate crisis and continuing to perpetuate it. So if you look at the United States history, we are responsible for about 24% of historic.

Global greenhouse gas emissions. We add up all of our emissions were responsible for. It's a huge percentage and today, under the leadership of the Biden administration, following in the footsteps of the Trump administration and the Obama administration, we are responsible for 23% of the fossil fuels that are burned today. So we developed 23% of the fossil fuels that are burned in the world. Which is enormous, and so until the United States federal government is held accountable for causing the crisis and perpetuating it, and in a court of law, politics is going to continue to run the show, one example I [00:16:00] think that makes this pretty clear is looking at the issue of reproductive rights and abortion. So before the Dobbs decision came down, which reversed Roe versus Wade, the right to abortion was a constitutional right for people, right? But after Dobbs, there was no longer that constitutional protection. And so it was a political free for all. And what we saw happen in the United States is within weeks, months, and certainly over the last year, almost half the states in the country have eliminated Substantial reproductive rights and abortion access for people. And that is simply because that right to abortion and reproductive care was removed as a constitutional right. So you can imagine that if the climate right, the right to have a stable climate and to be free from the kind of fossil fuel pollution that's happening that's destroying the planet. Um, if that was a constitutional right everywhere.

Then politics [00:17:00] doesn't get to take away that rate. So if we have a second round of a Trump administration or a DeSantis administration, they won't be able to implement lawfully. their 2025 agenda, which is to make fossil fuel power rain again as the supreme energy source in the nation and in the world that won't be allowed. So it's really vital to have these constitutional rulings and the U. S. Constitution is, is vital to be in play here and our courts.

Julia Rock: So, the case is moving forward. On June 1st of this year, a U. S. District Court judge ruled that it can proceed to trial, which is a huge win. But, it's important to note that the case's previous trial was halted by Supreme Court Chief Justice John Roberts only days before it was supposed to begin in 2018.

So, can you tell us a little bit about that trial, or that, uh, almost trial in 2018 and how Roberts was [00:18:00] able to stop it from proceeding?

Julia Olson: Yeah, we were really close to trial and the Department of Justice under the Trump administration ran up to the Supreme Court and asked for an emergency stay. What's important to note about what the Chief Justice did was he actually, he and the court denied that emergency stay, but they issued a temporary administrative stay.

that stopped our trial date. And then I think it was about a week later, they denied the request for a stay of our case and they sent it back down. What sent us up on appeal to the Ninth Circuit? Um, and the huge delay we've had over the last five years was the district court judge decided to Certify her decisions for appeal by the Ninth Circuit. Um, so she basically said, okay, the Ninth Circuit and the Supreme Court, like they're in my business, they keep telling me what to do. So I'm just going to pick it up to the Ninth [00:19:00] Circuit. They can review my rulings so that we can get on with things. And that caused the significant delay. But both times we were taken up to the Supreme Court, we actually beat back the.

the motions that the government had brought forward. Now, that's not to say the Supreme Court is in our favor on going to trial, but there's a really, really strong argument, even to this conservative court, that this Giuliana case needs to go to trial, and frankly, that there's a lot of case law coming out of the Supreme Court that actually favors our case, which is a conservative case.

You know, we're using original interpretation of the U. S. Constitution. We're looking to the decisions of some of the more conservative justices to provide support for the arguments in this case, which is at its core about the right to life.

Julia Rock: And so, now that the case is proceeding again, what is the timeline for having a trial?

Julia Olson: We have [00:20:00] asked Judge Ann Aiken to set an expedited trial date. We think we can be in trial by spring 2024. We have much of the evidence we need, but we have to do some updating of expert reports And what has happened in the last five years, which we've been collecting, but there's a process of taking depositions and so forth. So we're waiting for that trial date to be set. But meanwhile, the Biden administration and the attorney general and the solicitor general have made the decision to again, fight the case and to try to take us back up on appeal.

Frank Cappello: Yeah, I want to get into that specific point real fast because I think it's it's very important for people to know that this case has received pushback from every presidential administration since it was originally filed in 2015. We're talking from Obama to Trump now to Joe Biden. So how is Joe Biden's Department of Justice remaining an obstacle for this case?

And look Is there any hope of the Biden DOJ shifting [00:21:00] its position in the next, what, two years?

Julia Olson: I certainly hope so.

I haven't given up hope that they will. Uh, change their tactics, which are really egregious and just wrong. They're, they're not following the ordinary path of litigation in our case. And it's been eight years. I mean, these 21 youth have been waiting eight years to do what the held versus Montana plaintiffs were just able to do, which was to go take the stand and testify under oath and have a, a neutral judge decide whether their claims should prevail or not. And. So, you know, what's happening is, it's almost hard to even explain. The Department of Justice does not think this case should go to trial. And so they want the Court of Appeals or the Supreme Court to stop it. And their argument is that it's a waste of judicial resources to have this case go to trial.

That is literally the only harm, they argue, that would result if [00:22:00] Juliana case goes to trial is it would be a waste of judicial resources, is an absurd Argument. I mean we just put on a seven day trial in Montana. It was a very good use of judicial resources Having that trial so it's they're absurd arguments.

They're really not grounded in law I think we will win them in the district court and the issue will be whether they'll use this rare legal tool called a petition for a writ of mandamus. It's the only tool that they can use to take us up on appeal before trial and the appellate courts can reject it and we'll fight against it.

Um, one thing that's interesting to note, it would be the seventh time they would have used this extraordinary legal tactic in our case, which is more than they've used it in any other case in U. S. History. so I guess the other thing I would say about the Biden administration right now, and we put this in our briefs to the court. The Department of Justice is acting [00:23:00] contrary to everything that President Biden and his administration have said. They've said that they are going to work with youth.

They're going to stand behind youth. They're, they understand that the climate crisis is threatening their lives and their safety and their health. The US EPA has been issuing reports on how disproportionately harmed children are. So, everything they're saying in the case on the law from their attorneys is contradicting what they're saying to the public and what they're doing, um, within the agencies.

Julia Rock: And so I wanted to just ask last about the Supreme Court, because I'm sure a lot of our audience, which has read our coverage of the court, is thinking, you know, even if they win these cases in the lower courts, they get their case all the way up to the Supreme Court, the conservative supermajority can sort of throw it all out.

What do you say to people who are worried about this scenario?

Julia Olson: Look, right now, at the national level, we are living [00:24:00] in a country where the courts have not recognized that our children have rights to a stable climate. That's, it's, it's like we're in the pre Roe versus Wade world of reproductive rights. These rights or the pre Brown versus Board of Education, um, where segregation was constitutional.

Like right now, destroying the climate system and burning fossil fuels to the end of the earth is constitutional, according to the way we're living right now. And until our courts step in and say no, no more to the political branches, then we're not going to solve this in time. And so, there's always a possibility you're going to lose in court.

But I really believe if we can get to trial and we can have a full factual record and we can have legal conclusions, it will be very hard for an honest Supreme Court to reverse and rule against these youth. And we all know we're dealing with a lot of influence at that court. Um, you know, the reporting has been coming out [00:25:00] and you all have been covering too.

You know, there's, there's a lot of political influence. But I can't walk away from our courts. Like, none of us can walk away from our courts on this issue. And the other thing I'll say about that is, because a lot of people say, you know, this case should never go to the Supreme Court. But look at all the issues that are going to the Supreme Court, right?

From affirmative action, to reproductive rights, to voting rights, to things that we all care about. Um, important cases are going to keep going to the Supreme Court, and it's the work of the legal community and the public to do everything we can to create the kind of law. And the world that we want to live in. And it means not walking away. And just one other example of that. There have been times in history when the Supreme Court has issued really egregious rulings. Has gotten it completely wrong. And sometimes it takes 50 years to reverse those rulings and sometimes it takes only a couple of years.

And I have a lot of hope that some of the damage that's been done to the rule of law and [00:26:00] constitutional rights by the current composition of the court Is going to be undone in the coming decade, hopefully in the coming years, and I think we're going to see climate rights affirmed by the Supreme Court, um, certainly in the next decade.

Frank Cappello: Well, Julia, we really appreciate the work that you're doing on this, and thank you for leaving us on a hopeful note, Julia Olson is the executive director and lead counsel of Our Children's Trust, a non profit public interest law firm that provides legal services to youth from diverse backgrounds to secure their legal rights.

to a safe climate. We'll make sure to link, uh, to your organization in the show notes. Uh, Julie Olson, thank you so much for your time today and the work you're doing. We really appreciate it.

Julia Olson: you both. It was nice talking to you.

Julia Rock: Thanks so much.

Frank Cappello: That's it for today's show. As a reminder, our paid subscribers who get LeverTime Premium get to hear next week's bonus episode, our interview with Harvey Kaye and Alan Minsky about the need for a 21st century economic bill of rights. To listen to Lever Time Premium, just head over to LeverNews.

com to become a [00:27:00] supporting subscriber. When you do, you also get access to all of the Lever's premium content, including our weekly newsletters and live events. And that is all for just 8 a month, or 70 for the year.

One last favor, make sure to like, subscribe, and write a review for Lever Time on your favorite podcast app. And make sure to subscribe to The Lever's other podcasts, The Audit and Movies vs.

Capitalism. And of course, head on over to LeverNews. com and check out all of the incredible reporting our team has been doing. Until next time, I am Frank Capello. Rock the boat. The Lever Time Podcast is a production of The Lever and The Lever Podcast Network.

It's Usually hosted by David Sirota. Our producer is me, Frank Capello, with help from Lever producer Jared Jackangmayor.