By Richard W. Emory Jr.
It is now a scientific certainty that climate change is real and causes or aggravates damaging weather conditions and events. Yet Donald Trump denies this truth and may deny the Federal Emergency Management Agency’s wildfire aid to California.
His “drill, baby, drill” federal policies will increase damages from climate change. And he will give a four-year sleeping pill to the U.S. Environmental Protection Agency, just as he did in 2017. So we should take note of several very encouraging and recent legal developments in some states.
These should be exemplary cases for other states aiming to stop the climate killers and make them pay. Here are three:

1. On Jan. 13, the U.S. Supreme Court declined to hear a challenge by the fossil fuel companies to a ruling by the Supreme Court of Hawaii. This allows a growing list (now about 40) of climate suits by state and local governments to proceed in state courts against oil and gas companies.
These cases are modeled on earlier successful challenges to tobacco and opioid companies. They rely on state consumer-protection statutes and public-nuisance law, and they claim that these companies knowingly concealed and deceived us about the dangers from their products, including wildfires and hurricanes.
Company defense lawyers say that to regulate global emissions is beyond a state’s law. Plaintiffs say that – without trying to regulate – they only want compensation for climate-change damages suffered within the state or locality. We can expect many such cases now to proceed to trial in state courts.
2. On Dec. 26, New York state enacted a statute requiring fossil fuel companies to pay for infrastructure to build resiliency to climate damage. The governor calls this law the “Climate Superfund,” and it creates the New York Climate Change Adaptation Cost Recovery Program. This is modeled on the long-standing and effective federal Superfund law (the Comprehensive Environmental Response, Compensation, and Liability Act, or CERCLA) that 45 years ago enabled the U.S. EPA to make industry pay for its frightful toxic-waste dumping.
New Yorkers remember 2012, when Superstorm Sandy (not even a hurricane) damaged or demolished hundreds of thousands of structures in New York and adjacent coastal states. Southern congressmen for three months delayed more than $50 billion in federal aid to these northern states.
With federal aid to be delayed or denied, climate-killing companies should help to fund projects to protect communities and to recover from extreme storms. Now across America, we can expect other states (at least those not harboring fossil-fuel producers) to follow New York by enacting similar “Climate Superfund” laws.
3. On Dec. 18, after a trial providing “extensive, undisputed findings of fact” that greenhouse gas emissions “are drastically altering and degrading” a state’s entire ecosystem, Montana’s Supreme Court ruled in favor of its young plaintiffs. Until this decision, the Montana Environmental Policy Act had explicitly sheltered fossil-fuel projects from public scrutiny and judicial review of their climate-damaging impacts.
In this first such case in America, a state Supreme Court held its own state government accountable for its law preventing climate protection. The court ruled that this violates Montana’s State Constitution and denies young people their inalienable right to a “clean and healthful environment.” Going forward, environmental permitting in Montana must consider a project’s climate impacts.

This should not be a surprise. In the sixth century, the Roman Emperor Justinian pronounced the “public trust doctrine” that requires government to protect natural resources as common property in trust to benefit and sustain all humanity. Since 1868, the 14th Amendment of our U.S. Constitution says that no state may deny equal protection to a person in the state.
For our grandchildren – today’s youth – confronting a terrifying climate, the nonprofit law firm Our Children’s Trust will continue seeking intergenerational equity. Our frightened kids deserve this no less than all aging Americas who enjoyed a safe climate when we were kids.
This state-court decision, and the ancient view that the environment is common property in trust for young and old, is profound. It will inform and inspire climate-change litigation ongoing in other American states.
The kids may yet lose this case in the U.S. Supreme Court. But the public trust doctrine will prevail in nations with courts not under the thumb of fossil fuel companies and not willfully blind to the oncoming climate chaos.
Richard W. Emory Jr. is the author of “Fighting Pollution and Climate Change: An EPA Veterans’ Guide How to Join in Saving our Life on Planet Earth,” available at www.fightingpollutionbook.com. He is the former top staff lawyer nationwide for EPA investigations of pollution crime and is retired seasonally in South Florida. Banner photo: Smoke rises from a Gulf Coast oil refinery (iStock image).
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