This is Bloomberg Law with June Brusso from Bloomberg Radio.
A landmark climate ruling that will reverberate across the legal landscape, and it's sixteen young environmental activists who want it. A judge ruled that the young people, who range in age from five to twenty two, have a constitutional right to a safe environment, and that Montana's continued development of fossil fuels infringes on that right. It marks the first time a court in the US has declared that a government has a constitutional duty to protect people from climate change.
One of the young environmental activists, Claire Vasis, told CBS News that the decision gives her hope.
I hope that as a young person, we might actually have a chance to make a difference. And for my life and for my kid's life. You know, not all hope may be lost, do I mean?
The environmental law expert Pat Parento, a professor at the Vermont Law and Graduate School, how significant is this ruling.
It's a big deal. It's the first court in the United States to rule that there is a constitutional right, based on the Montana State Constitution, to a safe climate. That's shorthand for the way the Court described it in
the Hell versus Montana case. But that's essentially what Judge seely hilp is that the youth plaintiffs in that case have a fundamental constitutional right to a safe or stable climate, and that the state government is violating that constitutional right because it adopted a law that prohibits state agencies from considering just considering the climate change impacts in Montana when they authorize fossil fuel development like full mines, oil and gas,
well and so forth. So the first time any court in the United States has ever ruled that way.
It's been called a turning point by the plaintiff's attorney.
Would you go that far?
I think I have to say until we see how the Montana Supreme Court rules in this case on appeal, because the state, of course has said it will appeal, I think it's probably too soon to go that far to say that we're going to see either in Montana or more broadly, a turning point on changing, you know, fossil fuel dependent energy policies. What the court has said is you have to consider both what's happening in Montana and elsewhere from what we've already seen with climate change
and the worst consequences that are to come. Plus you have to look at the alternatives that are available to reduce emissions, to shift our energy policies to cleaner grid sources, all of which was laid out in very detailed factual findings over two hundred factual findings by Judge Steely in this case, based on the expert testimony the plane is introduced. It was a remarkable, remarkable job of lawyering in this
case to develop this record on appeal. So it's all there for the Montana Supreme Court to consider, and it's all there for, of course the Montana legislature and the Governor of Montana to consider. Whether they will or not is very questionable because it's a very red even hard right read governor and legislature right now that has dismissed this case, ridiculed this case, refused to change policies and
so forth. So is it a turning point. It's certainly headed in that direction, but we still have a lot to see develop if it's going to change the way things are happening on the ground.
As you said, the state is going to appeal, and a spokesperson for the governor said this legal theory has been thrown out of federal court and courts in more than a dozen states.
It should have been here as well, but they.
Found an ideological judge who bent over backwards to allow the case to move forward and earn herself a spot in their next documentary.
Well, you know, name calling doesn't change facts. I'm impressed by the factual records that this judge developed, and she evaluated each one of those expert witnesses. There were eight or more that were called by the planeffs, and she went through in great detail, you know, what they testified to, what that testimony was based on. So the governor can say what he wants about the judge personally, but the record speaks and the facts speak, and the state put
on no case. The only expert witness they offered was declared not credible by the judge, and she cited specifically why the testimony offered by this Terry Anderson was not credible. It was full of mistakes and so forth. So you know, when you don't have the facts on your side, you know, of course, you insult the judge. We've seen that in other instances, right, Or you insult the plaintiffs, the young
people bringing these cases as being naive or whatever. But again, the facts in the law are laid out in her opinion. We will see, you know, what happens on appeal. The Montana Supreme Court is more conservative now than it was in earlier days, when it recognized in this nineteen ninety nine case known as Meic versus de Eq recognize the fundamental right to a healthy environment. And now that healthy
environment right has been extended to a safe climate. So there is precedent in Montana for what Judge Seeley did, strong precedent. Her factual findings are undisputed by the state, so I think the plaintiffs have a very good chance of prevailing on appeal. We'll just have to wait and see.
Some of the young plaintiffs testified about how climate impacts were upending their lives.
You know, it's really scary seeing what you care for disappear right in front.
Of your eyes.
How important was their testimony to sort of put faces on this problem of climate change?
Oh? Yes, the children's now some of them are no longer children, of course, but when it started, they're eighteen of them, I believe. And she goes through each one of them individually, and shows how they are particularly affected by climate change. Some of them have asthma problems, Others have seen their ranching operations impacted. Others have seen some of the recreational activities they engage in impacted. Some of them.
There was testimony about both physical and mental impacts on these young people from what's happening with climate change and the uncertainty about whether it's going to be dealt with. So she went through in great detail, and it's compelling evidence of what's happening to our young people. And it's real.
I mean, these were medical doctors testifying under oath, subject to cross examination and saying these are real, diagnosable conditions that are happening to these young people and they're going to get worse unless we do something about this threat. And do we care about the livelihood and the well being of these children? Are not. That's really what the
trial was about. And as I say, the lawyers for Our Children's Trust did a phenomenal job of laying this all out on the court record, and there's nothing the state can say now that can change any of that. It's real.
So the declaratory relief, let's say that the Montana Supreme Court affirms the judge's decision.
How would this be enforced?
The judge, on that point said it will influence the state's conduct in making decisions about either authorizing fossil fuel development or promoting further extraction of fossil fuels. But she stopped short of actually ordering the state to do anything specific to either stop issuing permits obviously, or stop promoting fossil fuel development. She didn't go that far. The plans were asking for something like that, they didn't quite get that.
But I think what she's basically saying is it's an optimistic view that once government officials look at what's really happening, and document and disclose to the public what's really happening, and also look at the alternatives that are available for a different pathway forward, she's optimistically hoping that that will
change the direction of Montana's energy policy. That's the best way to characterize it is it's a hope that when facts and rational analysis is brought to bear on the problem, better decisions will be made.
Pat This has been called a landmark case in light of that. What makes it a landmark case, Well.
It's landmark in the sense it's the first time a court has declared a constitutional right to a safe climate, that's for sure, but it's a lower court decision that has to be upheld on appeal before I think you can truly call it landmark. It's a real breakthrough, it's a major victory, it was an extraordinarily well litigated case. All of those things are true. But right now, until you've got the highest court in Montana saying yes, there is not only a constitutional right to a safe climate,
but it's being violated right now by the state. Until we have that final word, I'm going to hesitate to say it's a landmark.
Right now, Montana is one of only a few states that have the affirmative right to a healthful environment in their constitutions. So will this only be influential in those states?
It will certainly be influential in the states with these green amendments, these constitutional right to a healthy environment provisions. That includes Hawaii. The next Our Children's Trust case is now scheduled for trial in Hawaii in twenty twenty four, And of course we all know what horror show is going on in Lahina right now. Other states that have similar green amendments, Pennsylvania, New York. Those are potential locations for where we might see more litigation like this. In fact,
I would predict we will see that. So you've got Hawaii, You've got Pennsylvania, you've got New York. Louisiana actually has a very strong constitutional right to a healthy environment provision, believe it or not. Other states, Washington, Alaska, they have those provisions. Our Children's Trust has not been successful in
bringing cases in those other states. But I think with the held decision, and particularly again if it's upheld, I do think you're going to see more attempts to get courts ruling in cases being brought not only by youth plaintiffs, but by other kinds of effective interests. And so this is part of an increasing number of cases being litigated all over the world. There are now over two thousand climate cases that have either been brought or are in
the process of being litigated. So we're seeing a growing number of judicial decisions across the globe requiring stronger action to deal with climate change, to disclose what is being done and what is not being done to address it. These cases are not going to solve the climate crisis, obviously, but they are certainly building a body of law, including constitutional law, that is going to continue to put lots of pressure on the political branches of government, legislatures and
executive branches. And I think that body of law is gradually moving the other branches of government to take meaningful action. That's what I think is happening and certainly what I hope will happen.
As you mentioned, there's this broad wave of litigation. States and cities are suing companies like Exxon, Chevron, and Shell.
Have any of those reached a point of trial.
No. The one that's out in front right now is Honolulu, and the Hawaii Supreme Court is reviewing a decision by a lower Hawaii court denying the oil company's motion to dismiss the case against them on the grounds that it's preempted by federal law. So we're waiting to see how
the Hawaii Supreme Court rules on that issue. If the Hawaii Supreme Court upholds the lower court, then I think the next step in the Honolulu case is discovery, which of course the oil companies are terrified about, and that discovery will probably start to happen in twenty twenty four and a trial. Then we can expect to follow maybe starting in twenty twenty four, but more likely twenty twenty five.
So the bottom line is we're still probably years away from a verdict on whether the oil companies are actually liable for their campaign of deceit regarding climate change.
Turning to another environmental issue, pat President Joe Biden announced close to one million acres of public land around Grand Canyon National Park as a new national manuit through the Antiquities Act.
Folks, preserving these lands is good, not only if Arizona, for the planet. It's good for the economy, it's good for the soul of the nation. And I believe, in my core and of course the right thing to do.
Biden also restored two sprawling national monuments in Utah that were downsized by former President Trump.
We want to restore protection for three national monuments gutted by the last administration, two not so far from here in Utah, the Grand Staircase and Bear's Ears.
Is declaring a national monument well within the powers of the presidency.
Well, we think it is, and I would certainly argue that it is. I will say this Judge Chief Justice Roberts, in a case that was challenging the designation of a marine National monument off the co of New England. He said, the question of the scope of the president's authority under the Antiquities Act, which is the act that authorizes these monuments,
has never been resolved by the Supreme Court. So he sort of flagged in his mind anyway a question about whether the size of some of these monuments that are being designated is within the president's authority. So I think what we have to say on that is, certainly we are going to see litigation over what President Biden is doing, and that litigation is probably going to end up in the Supreme Court. And then it's a matter of cross your fingers.
Yeah, because a judge dismissed the lawsuit from Utah that challenged his restoration of Bearsiers and Grand Staircase Escalante national monuments.
Yeah, and those will go up on appeal. And now this latest designation in the Grand Canyon will also be challenged. So the litigation over the scope of the Antiquities Act authority, I think we're going to have to wait and see how that finally sugars off. As we say in Vermont, I.
Like that saying I may use it myself, Thanks so much. Pat That's professor Pat Parento of the Vermont Law and Graduate School. A federal appeals court has ruled that a law banning gun possession by unlawful users of a controlled substance doesn't apply to someone who's sober at the time of the arrest. The US Court of Appeals for the Fifth Circuit overturned a conviction under the statute because there was no evidence the defendant was intoxicated at the time
of his arrest. The panel said the law was unconstitutional as applied because it isn't consistent with the historical tradition of firearm regulation. Joining me his Second Amendment. Law expert Eric Rubin, a professor at the SMU Deadman's School of Law, Eric tell us about the Fifth Circuits decision.
This case involved a challenge to a federal law that does the unlawful users of drugs or those who addicted to drugs cannot possess firearms, and in this particular case, the defendant said that he was a regular user of marijuana and because under federal law that's unlawful, he was therefore barred from possessing a firearm, but he had to firearms on him at the time and he challenged that as a violation of the Second Amendment rights.
And so the Court applied the Supreme Court's recent history guidelines for analyzing the constitutionality of firearms laws.
Tell us what their reasoning was the majority.
Here, Yes, the Court was applying the twenty twenty two Supreme Court case Bruant, which says that in order for a modern firearm law addressing modern issues to be upheld as constitutional, the federal government has to point to analogous of regulations from the late seventeen hundreds or perhaps the eighteen hundreds. In the case of drug users, including marijuana users. That's a bit difficult because modern drug use is largely a twentieth century phenomenon with respect to marijuana and some
other drugs. And so the Court said that there weren't sufficient analogs from the framing generation or from the eighteen hundreds. They spent a lot of time looking at restrictions on possession of firearms when somebody was under the influence of alcohol, and also of restrictions on gun possession by the mentally ill, and they ultimately found that those simply weren't analogous enough to a permanent bar on gun possession by unlawful users of marijuana today.
The majority wrote, it's helpful to compare the traditions surrounding the insane and the traditions surrounding the intoxicated, side by side.
Right and again. This is something that the Bruined decision back in twenty twenty two forces courts into this bizarre world where they have to try to draw analogies to regulations that were addressing different issues back in eighteen hundreds or seventeen hundreds in order to shore up the constitutionality of today's laws. And what the court acknowledged was that there are plenty of regulations barring gun possession or gun
use when somebody is intoxicated by alcohol. But those laws the Court construed very narrowly, saying that they only applied back in eighteen hundreds or seventeen hundreds when somebody actually was intoxicated, unlike today's law barring gun possession by unlawful users of drugs, which applies even when somebody is not under the influence of the drug.
So, in a concurring opinion, Judge Stephen Higginson said, it's possible that inferior officers such as myself are misinterpreting Bruin by focusing on the right to keep.
And bear arms.
And it may be the Supreme Court will remind us of the Second Amendment's middle where the the framers stated explicitly that they were fashioning aright necessary to.
The security of a free state. What is he talking about.
Here, Well, what he's talking about here is that in recent years, over the past ten or fifteen years, the Supreme Court and the lower courts have focused almost exclusively on the second half of the Second Amendment, the right to keep in bare arms shall not be infringed, and have ignored the first part of the Amendment, which discusses the militia and also the requirements for the security of
a free state. And what the judge is pointing out is that a lot of modern regulations that might not have historical analogs actually could help us secure the state. But that aspect of the Amendment just isn't getting enough attention.
Is that because the Supreme Court deliberately ignored that aspect of it and focused on the right to bear arms.
Yeah.
Under some views, the Supreme Court back in Heller in two thousand and eight, essentially ignored the first half the Amendment, saying that it does not expand or detract from the scope of the right to keeping bear arms, and that ruling that understanding of the Second Amendment from Heller has led to a rapid expansion, especially in recent years, of the scope of gun rights in this country, And what the concurring judge is saying is that perhaps it's time
to take another look at that first half the Amendment.
So though the Fifth Circuit's decision is limited to Louisiana, Mississippi, and Texas, could it potentially impact the federal case against Hunter Biden because he's charged in Delaware under the same statute that the Fifth Circuit is finding unconstitutional.
Yeah, the reasoning in the Fifth Circuit's decision, even though it was a case involving marijuana, would seem to extend to other drugs as well, and it would seem to broadly limit the ability of the government to ban gun possession by unlawful users of drugs. And so that reason, because it's so expansive, it could be persuasive to other
courts around the country. And if the Hunter Biden plea deal continues to unravel, I fully expect that there would be a strong second amendment argument that his attorneys would raise that his charge under the same provision that was ruled unconstitutional in the case in the Fifth Circuit would be unconstitutional to Hunter Biden as well.
So the Fifth Circuit has now declared two federal gun statutes unconstitutional. Does it seem as if any gun statute now is going to be subject to being litigated under Bruin.
Yeah.
Well, one of the things that we've seen over the year after Brewin came up with this novel test that requires modern gun laws to be a nowog just to historical one is that courts are applying the same history differently in striking down or upholding the identical policies. So we have splits that are opening up all over the country, including on the issue of AREM possession by unlawful users of drugs. Most of the courts that have considered that
law found it perfectly constitutional. And these aren't the only issues. The Fifth Circuit, being one of the most if not the most conservative appellate courts in the country, has been declaring, as you mentioned, a couple laws unconstitutional federal laws. But other courts around the country are reaching the opposite conclusion.
So one of the things that a lot of Second Amendment scholars and experts are looking for is for more guidance from the Supreme Court that if this historical analogical test is going to be what applies in Second Amendment cases, there needs to be more guidance in terms of how to view history, how broadly or narrowly should he construed, Because right now we see a fair amount chaos in the lower courts across issues not just on the question of drugs and guns, but also on the questions of
the constitutionality of assault weapons and ghost guns and large capacity magazines, and restrictions on domestic abusers and guns. And so this case and the split that had opened up is reflective of broader trends right now in the lower courts. In the wake of that twenty twenty two decisions grew there.
Was a gun case before the Supreme Court next term, isn't there?
Yes, this is the United States vi. Raheemi also out of the Fifth Circuit. That case involves domestic abusers. In that case, the Fifth Circuit said that it's unconstitutional to disarm temporarily those who were subject to domestic violence for straining orders. The Fifth Circuit in that case found that also to be an outlier regulation, an outlier modern regulation that our ancestors would not have accepted in that case.
Is especially indicative of the challenges of applying this historical analogical test to modern gun regulations, because back at the framing, domestic violence wasn't viewed in the same way that we view it today. In fact, husbands had a right to chastisement where they could discipline their wives and were protected to do so, and could discipline their children. So domestic abuse itself is a phenomenon that is a modern one.
Our appreciation of the risks of gendered violence in the home, and it's no surprise given that that the court was unable to find close analogs from back in the seventeen hundreds.
In all these cases about the Second Amendment using Bruin's so called history test, one that really stands out to me is a case decided last week by the Ninth Circuit that found that Hawaii's ban on butterfly knives was unconstitutional.
One of the.
Things that this case, and this is the case Peter v. Lopez out of the Ninth Circuit, one of the things that it reflects is just the way that courts are manipulating his history to reach one outcome or another. So in that case, for example, the court took a very broad view of the historical understanding of arms, basically saying that it encompasses all weapons, including these butterfly knives, which in modern days are associated with a lot of criminality.
And at the same time that the Court took this broad view of the definition of Second Amendment arms, it then took a very narrow view of the historical regulations that could be analogous to a modern van on butterfly knives.
There were lots of laws back.
In eighteen hundreds of restricting certain types of knives, but the court viewed that those were disnalogous because, for example, they governed bigger knives than the butterfly knive, which the court repeatedly referred to as a pocket knife, even though you know, these butterfly knives that you can flip open so are not usually what we think of when we
think of pocket knives. Pocket knives came up repeatedly, probably a dozen times in this opinion, saying that these butterfly knives are just pocket knives.
But if they appeal that to the full Ninth Circuit. Do you think that full Ninth Circuit would overrule the three judge panel.
I think this was a panel that was not reflective I think of the broader Ninth Circuit. So it's very possible that if this case gets appealed, that it could actually end up with a different outcome with an en BOONMC panel of the Ninth Circuit. That's been a trend that we've seen in past years, even before Bruin. Sometimes there would be a broad, broad, robust, bansive understanding of what the Second Amendment protects that would get appealed and
reversed on bond. So I would not be surprised at all if we see a petition to rehear this case by a broader panel of the Ninth Circuit.
I mean, there are so many challenges based on the Second Amendment that courts around the country are grappling with.
Yeah.
So there have been over two hundred challenges brought in the year after Bruin came down, challenging all range of weapons regulations. There are lots and lots, there are thousands of regulations on weapons into violence. They're all getting challenged. One of the things that the Supreme Court did in that Ruined case is by changing the way that cases get decided. The Supreme Court basically gave plaintiffs a redo to challenge laws that had been viewed as perfectly constitutional.
Across the country, advocates are now getting a second bite at the apple. So we're seeing more Second Amendment litigation than we even did after Heller. There are more splits that are opening up courts looking at the same history and coming to opposite conclusions about the constitutionality of identical policies than there were after Heller. So there's just a lot of discord. This is an area of law that is incredibly influx depending on the makeup of courts and
where litigation is happening in the country. And I think it's going to take a very long time, if this Bruin test is going to be workable, for everything to shake out and become more coherent, because right now there's just no predictability about the constitutionality of most regulations.
Thanks so much, Eric.
That's Professor Eric Rubin of the s m U Deadman School of Law.
Michael Bloomberg, the founder and majority owner of Bloomberg l P, the parent company of Bloomberg Radio is the donor to groups that support gun control, including every Town for Guns Safety. And that's it for the s edition of the Bloomberg Lawn Show. Remember you can always get the latest legal news by listening to our Bloomberg Lawn podcasts. You can find them on Apple Podcasts, Spotify, and at www dot bloomberg dot com, slash podcast, slash Law. I'm June Grosso and this is Bloomberg