A judge in Montana has ruled that state laws protecting fossil fuels are unconstitutional. Although the ruling flows from language unique to Montana’s Constitution, its rationale reverberates well beyond the state.
In the broadest sense, the case asks we should ask in every community, every state: What happens when elected officials protect their political donors over the lives of their constituents?
It’s a question touching nearly every public policy debate affecting American life, none more life-threatening than gun violence and climate change.
A Common Foe Blocks Progress on Climate, Guns
Accelerating rates of climate change and gun deaths are divergent symptoms of the same disease: money in politics.
Both calamities could be reduced through legislation, but have, instead, intensified through years of legislative inaction. Unlimited campaign finance under Citizens United allows corporate wealth to dictate who gets elected, which laws get passed, and how the courts interpret those laws. It is directly responsible for loss of life and habitat, and reflects end-stage limitations of representative government, where elected officials are so removed from electoral consequences they sacrifice their constituents’ well-being to protect their own careers.
Over the past several decades, the gun lobby has poured hundreds of millions of dollars into state and federal campaigns, predominantly backing pro-gun Republicans. Likewise, the fossil fuel industry has contributed nearly one billion dollars - with a ‘b’- to political campaigns, primarily to Republicans.
Such staggering sums insulate legislators from their constituents due to a near-guarantee they will be reelected. Instead of passing laws that reflect voters’ wishes on abortion, insurance, pharmacy, labor, health care, education, etc., legislators serve their largely out-of-state donors and pass laws to secure their next infusion of campaign cash.
Beware Politicians Who Ignore Causation and Pivot to Mitigation
Political spending has foisted relentless gun and climate disinformation campaigns on the public, followed by smoke and mirrors to deflect the discourse away from causation and toward mitigation. Instead of restricting access to high-capacity weapons in the aftermath of another mass shooting, NRA-funded politicians pivot to mental health, criminal sentencing, and more guns. Instead of hastening the transition to renewable energy after millions of acres burn - killing people, destroying homes and burning animals alive- oil-funded politicians deflect to sea-walls, carbon capture, and questioning science.
Focusing on mitigation while ignoring causation shields corporate donors from liability, and prolongs the damage they cause. Worse, the deflection bolsters the preferred but false narrative that gun deaths, as well as an uninhabitable planet, are beyond legislators’ capacity to address.
Idiocracy on Display in Florida
A glaring and absurdist example hails from Florida, where climate-science-denying Gov. Ron DeSantis turned away hundreds of millions in federal dollars available to low- and middle-income households under the Inflation Reduction Act, depriving Florida homeowners of funds to upgrade their home’s energy efficiency. Property insurers have fled the state en masse due to escalating climate-related claims, leaving Floridians to pay an average of $6,000 per year to insure their homes, compared to the national average of $1,700. That’s a $4,300 DeSantis annual premium imposed on every homeowner in the state.
A Necessary Erosion of the Political Question Doctrine
In the Montana climate case, state defendants did not refute evidence that carbon emissions are causing temperatures to rise, or that temperatures are at a perilous tipping point. They did not dispute the environmental destruction of Montana’s waterways, hunting grounds, infrastructure, forests, and crops.
Instead, the state’s hubristic defense consisted of, “we’re the government, we can destroy the environment if we want to, the courts are powerless to stop us,” leaning heavily on the political question doctrine. Under that doctrine, courts have historically rejected or dismissed cases questioning legislators’ decisions as non-justiciable “political” questions, in service to the separation of powers.
As more people die from Republican super majorities’ refusal to act on guns or climate, the deferential “political question” doctrine begins to look foolish. In Juliana vs. United States, another pivotal climate case pending in Oregon, plaintiffs are challenging the federal government’s failure to restrict fossil fuels under the 5th Amendment right to life, liberty, and property. Originally dismissed as non-justiciable, the case was recently revived, resurrecting a plaintive dissent over the government’s failure to act:
Seeking to quash this suit, the government bluntly insists that it has the absolute and unreviewable power to destroy the Nation...
If plaintiffs’ (climate) fears, backed by the government’s own studies, prove true, history will not judge us kindly.
When the seas envelop our coastal cities, fires and droughts haunt our interiors, and storms ravage everything between, those remaining will ask: Why did so many do so little?
Citizens United, a preventable disease, is now life-threatening. Like any malignancy, if left un-excised, it will destroy its host.
Sabrina Haake is a 25-year litigator specializing in 1st and 14th Amendment defense. Her columns appear in OutSFL, Chicago Tribune, Salon, State Affairs, and Howey Politics. She and her wife split their time between South Florida and Chicago. Follow her on substack.
