WEBVTT - E-cigarette Maker Goes on Trial 0:00:03.120 --> 0:00:07.960 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:09.240 --> 0:00:13.240 A landmark trial is kicking off in Minnesota the first 0:00:13.280 --> 0:00:16.280 time one of the thousands of cases against eat cigarette 0:00:16.320 --> 0:00:19.599 maker Jewel is going to play out in a courtroom. 0:00:20.280 --> 0:00:24.120 Minnesota accuses Jewel and Altria of hooking a generation of 0:00:24.200 --> 0:00:28.400 young people on their products by deception and slick advertising, 0:00:28.600 --> 0:00:31.240 and the state wants the companies to pay up for 0:00:31.320 --> 0:00:34.960 the public costs of addressing an uptick in youth vaping 0:00:35.040 --> 0:00:38.760 and smoking. Joining me its healthcare attorney Harry Nelson of 0:00:38.880 --> 0:00:44.000 Nelson Hardeman Harry Minnesota is using the theory of public nuisance, 0:00:44.600 --> 0:00:47.440 a theory that was used against the tobacco industry in 0:00:47.440 --> 0:00:50.920 the nineteen nineties. Tell us about it. Yeah, so a 0:00:50.960 --> 0:00:54.520 public nuisance legal theory. It was a theory that actually 0:00:54.520 --> 0:00:56.760 grew out of cases where there had been some kind 0:00:56.800 --> 0:01:01.600 of public harm like damage to you know, water sources 0:01:01.640 --> 0:01:04.280 and from pollution and things like that. And the idea 0:01:04.319 --> 0:01:09.360 was that essentially you could hold private parties responsible for 0:01:09.880 --> 0:01:13.039 the social costs, the costs that they impost on society. 0:01:13.560 --> 0:01:16.720 So we've been seeing through the opioid cases of the 0:01:16.760 --> 0:01:20.480 last few years they attempt to extend that theory against 0:01:20.600 --> 0:01:24.319 drug makers and pharmacies that allowed easy access, and the 0:01:24.319 --> 0:01:26.440 state of Minnesota is trying to do the same thing here, 0:01:26.720 --> 0:01:29.880 essentially to say that Jewels, you know, the e cigarette company, 0:01:30.160 --> 0:01:34.199 that Altria, the biggest of the tobacco companies, essentially caused 0:01:34.280 --> 0:01:38.280 great harm to the public by encouraging the sale of 0:01:38.319 --> 0:01:44.240 these cigarette flavors to teenagers and to underage consumers. Do 0:01:44.280 --> 0:01:46.679 you think that the public nuisance theory is a good 0:01:46.720 --> 0:01:52.040 fit for what it's accusing Jewelove, I think it is 0:01:52.320 --> 0:01:54.760 a little bit of a stretch. Personally, I think that 0:01:55.040 --> 0:02:00.400 this issue of underage consumers smoking or engaging in healthy 0:02:00.440 --> 0:02:05.280 behaviors is a more complicated problem. It's not a clean 0:02:05.520 --> 0:02:08.480 fit to me that jewel was the entire problem. I 0:02:08.520 --> 0:02:12.440 think there's a broader question about our consumer culture that 0:02:12.600 --> 0:02:16.800 made this product so closely popular with kids. So, while 0:02:16.800 --> 0:02:21.000 I do think that the marketing practices were reprehensible, I'm 0:02:21.040 --> 0:02:23.800 not sure that it's a clear line to say that 0:02:23.840 --> 0:02:26.120 they were the cause of all these problems. I also 0:02:26.160 --> 0:02:28.640 think it's unclear. We won't know for years what the 0:02:28.680 --> 0:02:31.840 long term health effects will be of kids starting to 0:02:31.880 --> 0:02:35.640 smoke in eighth grade, and certainly there's been an issue 0:02:35.639 --> 0:02:39.240 of teenagers of older teenagers, tenth graders, eleventh graders smoking 0:02:39.280 --> 0:02:44.160 that preday e cigarette. Minnesota says in papers that in 0:02:44.200 --> 0:02:48.200 the fourteen years between two and twenty fourteen Minnesota high 0:02:48.240 --> 0:02:51.480 schoolers smoking at least one cigarette in the last thirty 0:02:51.560 --> 0:02:54.880 days dropped from thirty two point four percent down to 0:02:54.960 --> 0:02:58.919 ten point six percent. Six years later, nineteen point three 0:02:59.000 --> 0:03:03.480 percent of high schoolers reported having vaped at least once 0:03:03.560 --> 0:03:06.919 in the last thirty days. Does that make their case 0:03:07.160 --> 0:03:10.440 about public health or do they need to do much more? 0:03:11.680 --> 0:03:13.880 I think that's a helpful fact to them. I just 0:03:13.919 --> 0:03:16.560 don't know the whole story. I think the reality is 0:03:16.600 --> 0:03:21.200 like vaping in general has become a more socially acceptable 0:03:21.240 --> 0:03:25.280 and more popular alternative too smoking. So even as we've 0:03:25.280 --> 0:03:29.280 seen a decline in general rates of cigarette smoking, you know, 0:03:29.320 --> 0:03:33.400 with greater awareness that vaping is a slightly healthier choice 0:03:33.600 --> 0:03:37.120 of an overall very unhealthy activity. You know it's increased. 0:03:37.120 --> 0:03:39.000 So I think it's helpful. I just don't know. I 0:03:39.040 --> 0:03:42.400 don't think it's a clam dunk. Jule and Altria are 0:03:42.480 --> 0:03:45.680 trying to shift the blame to the state of Minnesota. 0:03:45.880 --> 0:03:49.480 Minnesota got billions of dollars from tobacco settlements over the 0:03:49.600 --> 0:03:54.520 last decade, but spent less than one percent on prevention efforts, 0:03:54.960 --> 0:03:58.920 instead using the funds to bankroll unrelated products like the 0:03:58.960 --> 0:04:03.720 Minnesota Viking football Stadium. This is a really interesting argument. 0:04:03.880 --> 0:04:06.840 If you go back to nineteen ninety eight, the various 0:04:06.920 --> 0:04:10.840 states one something like two hundred and five two hundred 0:04:10.840 --> 0:04:13.320 and six billion dollars. I think the state of Minnesota 0:04:13.320 --> 0:04:17.839 alone got over six billion dollars in the tobacco settlements, 0:04:17.839 --> 0:04:20.600 with all the big tobacco companies, but including the company 0:04:20.640 --> 0:04:23.800 that's now Altria right it used to be Philip Morris. 0:04:23.839 --> 0:04:28.480 And so there was an enormous opportunity for not only Minnesota, 0:04:28.520 --> 0:04:31.159 but for all of the states to use that money 0:04:31.279 --> 0:04:35.400 to really create better public health programs, better education programs 0:04:35.440 --> 0:04:38.679 to reduce smoking and educate people about the dangers of smoking, 0:04:39.080 --> 0:04:42.400 and intervene in trends like this. And I think that 0:04:42.560 --> 0:04:45.880 Jewel and Altria have a good case to make that 0:04:46.000 --> 0:04:49.440 not only Minnesota, but literally every state in the country 0:04:49.800 --> 0:04:52.120 basically wasted that opportunity. When we look at what they 0:04:52.120 --> 0:04:54.960 did with the money, they mostly plugged holes in state 0:04:55.000 --> 0:04:57.880 budgets and just considered it's sort of a flush fund 0:04:58.279 --> 0:05:00.440 to be used whenever there was a financi will needs. 0:05:00.520 --> 0:05:03.359 It's hard to find any examples in Minnesota. There's no 0:05:03.400 --> 0:05:07.839 accession of a state that really used the money comprehensively 0:05:07.880 --> 0:05:10.679 for effective public health related to the danger of smoking. 0:05:11.080 --> 0:05:14.000 Do Altria and Jewel have the same defense or are 0:05:14.000 --> 0:05:17.719 they pointing fingers. Jewel is the main target here. Disuel 0:05:17.800 --> 0:05:20.839 Lab is the company that developed this and marketed this, 0:05:20.920 --> 0:05:22.880 and they are a victim of their own success with 0:05:23.000 --> 0:05:25.599 all of the flavors that they came out with, mango 0:05:25.640 --> 0:05:28.760 and other things that really appeals to kids. Altria has 0:05:28.800 --> 0:05:31.800 the misfortune of having been a major investor, I think 0:05:31.800 --> 0:05:34.799 something like twelve to thirteen billion dollar investment in Jewel. 0:05:34.960 --> 0:05:37.719 But it's not to me at all clear why Altria 0:05:37.960 --> 0:05:42.320 is fitting side by side defending this case with Jewel. Frankly, 0:05:42.360 --> 0:05:44.800 it looks like they are there because they are such 0:05:44.839 --> 0:05:47.720 a big player in the overall tobacco industry and not 0:05:47.839 --> 0:05:50.919 because they were so singularly attached to this product. In fact, 0:05:51.360 --> 0:05:55.320 Altria has completely divested itself of its position and Jewel, 0:05:55.400 --> 0:05:58.680 which I think was never more than a small minority percentage. Ironically, 0:05:58.680 --> 0:06:01.960 Altria has actually invested it in a competing product, Enjoy, 0:06:02.360 --> 0:06:05.400 which is competing with jewels, and so I'm not clear 0:06:05.800 --> 0:06:08.200 if their apparence here is more about optics and having 0:06:08.680 --> 0:06:11.000 you know, the biggest tobacco company in the country so 0:06:11.080 --> 0:06:14.000 much as related to their actual activity and state of 0:06:14.040 --> 0:06:17.840 Minnesota related to eastigs. Also for the deep pocket, yeah, 0:06:17.920 --> 0:06:20.279 no questions. As a parent of children, I share the 0:06:20.320 --> 0:06:25.640 concern about the effective, dangerously effective marketing of east cigarettes. 0:06:25.640 --> 0:06:28.920 But it does seem that Altria is at the table 0:06:29.320 --> 0:06:32.320 mostly not only for their size and disability, but also 0:06:32.640 --> 0:06:34.960 for the potential resources that they can add to the 0:06:35.000 --> 0:06:37.760 pool of funds. So I agree with your comment about 0:06:37.760 --> 0:06:39.720 them being a deep pocket here. As far as if 0:06:39.760 --> 0:06:43.240 the jury thinks the state has some responsibility here, is 0:06:43.240 --> 0:06:47.640 this a case where the jury can allocate damages. Yeah, absolutely, 0:06:47.680 --> 0:06:51.800 the jury does have the ability to attribute comparative amount 0:06:52.080 --> 0:06:55.800 and to assess responsibilities. So yeah, it's a tricky case 0:06:55.880 --> 0:06:59.359 for Altria because it obviously the goal is to show 0:06:59.360 --> 0:07:02.000 that this is a bigger, more complex problem that isn't 0:07:02.040 --> 0:07:04.719 specifically tied to this, but also to try to minimize 0:07:04.760 --> 0:07:08.000 its share of any damages that are awarded. So what's 0:07:08.040 --> 0:07:11.280 the question the jury will have to answer. I mean, 0:07:11.520 --> 0:07:17.480 the question is really whether Jewel engaged in deceptive marketing 0:07:17.520 --> 0:07:22.120 practices that targeted Minnesota youth. And so that's really the 0:07:22.200 --> 0:07:24.400 claim that's being made, essentially, that there was some kind 0:07:24.440 --> 0:07:28.720 of fraudulent practice, you know, that there was actually intention 0:07:29.320 --> 0:07:34.480 to lull kids into taking up vaping in the marketing 0:07:34.480 --> 0:07:36.480 that they use, rather than this being a case of 0:07:36.600 --> 0:07:40.120 kids being marketing, you know that was intended for adults, 0:07:40.160 --> 0:07:44.120 that in fact, the entire strategy of Jewel was to 0:07:44.480 --> 0:07:47.520 hook a whole new generation of young kids on vaping. 0:07:48.120 --> 0:07:52.440 Jewel has faced thousands of lawsuits across the nation, but 0:07:52.600 --> 0:07:56.520 most have settled, and it said that Minnesota had rejected 0:07:56.520 --> 0:08:00.280 settlement offers similar to those reached with other states, which 0:08:00.280 --> 0:08:03.560 provided quote hundreds of millions of dollars to further combat 0:08:03.680 --> 0:08:08.520 underage use and developed cessation programs in those states. So 0:08:08.800 --> 0:08:11.400 is this for the good of Minnesota or is this, 0:08:11.720 --> 0:08:15.040 you know, for making a name and making a statement 0:08:15.160 --> 0:08:17.800 about these products. I'm just trying to figure out why 0:08:17.840 --> 0:08:21.720 they wouldn't settle. Yeah, it definitely is an aggressive strategy 0:08:21.800 --> 0:08:23.800 here on the part of the state of Minnesota. It 0:08:23.880 --> 0:08:27.680 seems interesting that the state Attorney General, Keith Ellison is 0:08:27.720 --> 0:08:31.600 actually taking the lead in trying this case. He's certainly 0:08:31.600 --> 0:08:36.160 someone who has a colorful political history nationally, and I 0:08:36.200 --> 0:08:39.880 do think there's certainly a question of whether there's some grandstanding, 0:08:40.280 --> 0:08:41.920 you know, whether it's to create a name for him 0:08:42.040 --> 0:08:44.640 or just to make a statement by taking such an 0:08:44.679 --> 0:08:47.520 aggressive position on this case rather than following the path 0:08:47.640 --> 0:08:51.120 of other states and pursuing a quicker settlement. The State 0:08:51.120 --> 0:08:54.880 of Minnesota hasn't set a number for damages, but Ellison 0:08:54.920 --> 0:08:58.080 said that it could be in the ballpark with Minnesota's 0:08:58.160 --> 0:09:01.280 landmarks seven point one bill million dollars settlement with the 0:09:01.320 --> 0:09:05.600 tobacco industry in nineteen ninety eight. But wasn't that a 0:09:05.640 --> 0:09:08.480 bigger case the case with the tobacco industry, and didn't 0:09:08.480 --> 0:09:12.760 it go back decades. It's really hard to imagine how 0:09:12.800 --> 0:09:15.920 the problem of jewel could be taken as equivalent as 0:09:16.000 --> 0:09:19.400 the nineteen ninety eight tobacco settlement, which was really addressing 0:09:19.679 --> 0:09:23.320 decades and decades of actually deceptive marketing where the tobacco 0:09:23.360 --> 0:09:27.600 industry knew how dangerous smoking was to American health and 0:09:28.000 --> 0:09:31.319 clearly did everything it could to block that information from 0:09:31.320 --> 0:09:33.440 coming out and to keep pushing a product that it 0:09:33.480 --> 0:09:36.319 knew was deadly. So the conduct here happened in a 0:09:36.440 --> 0:09:38.840 much shorter period of time. I don't think Jewel even 0:09:38.920 --> 0:09:41.400 entered the market until twenty sixteen, and I think the 0:09:41.440 --> 0:09:44.080 main period we're focusing on is like twenty sixteen to 0:09:44.120 --> 0:09:47.120 twenty nineteen. So it seems like this should be ultimately 0:09:47.120 --> 0:09:50.760 a drop in the bucket compared to the broader tobacco settlement. 0:09:50.880 --> 0:09:53.520 And again, it does to me raised questions why it's 0:09:53.520 --> 0:09:56.640 any general Ellison is taking such an aggressive position here, 0:09:56.960 --> 0:09:58.840 Not to say that this isn't a problem, but to 0:09:58.880 --> 0:10:01.360 suggest that it's on par with the whole tobacco crisis 0:10:01.440 --> 0:10:04.400 seems a bit much. If the state of Minnesota did 0:10:04.440 --> 0:10:09.200 win here, would it help other states to get leverage 0:10:09.240 --> 0:10:12.439 to reach settlements? I mean, how would it affect states 0:10:12.480 --> 0:10:15.680 outside of Minnesota, or you know, the general population outside 0:10:15.679 --> 0:10:19.040 of Minnesota. I mean, I think if a jury is 0:10:19.360 --> 0:10:23.000 receptive and gives Minnesota, give a Jorney General Ellison a 0:10:23.160 --> 0:10:26.240 multi billion dollars or even a billion dollars settlement here, 0:10:26.600 --> 0:10:30.240 I think it will embolden other states, and it will 0:10:30.360 --> 0:10:34.080 concern Jewels and potentially Altria and sort of increase the 0:10:34.160 --> 0:10:37.480 numbers that are being paid out, which are already significant 0:10:37.480 --> 0:10:39.520 and in the hundreds of millions of dollars. So I 0:10:39.559 --> 0:10:42.000 do think that this case in a sense will either 0:10:42.080 --> 0:10:45.280 strengthen or weaken the assessments on both sides of what 0:10:45.360 --> 0:10:48.079 this case is worse and what this harm is worse 0:10:48.160 --> 0:10:50.000 than what it's going to take settle these cases. So 0:10:50.080 --> 0:10:52.920 there is exposure here. If Minnesota wins this case, there's 0:10:52.920 --> 0:10:55.200 going to be more states that are willing to be 0:10:55.240 --> 0:10:58.320 more aggressive and push for more which is going to 0:10:58.360 --> 0:11:02.199 be obviously bad for Joel in Altria. And if Minnesota 0:11:02.280 --> 0:11:06.520 loses the case, will Jewel in Altria be hesitant to 0:11:06.559 --> 0:11:09.920 settle these cases? Again? I mean it's more like I 0:11:09.920 --> 0:11:11.679 think of it a little bit like a stock, right, 0:11:11.720 --> 0:11:14.800 So if Minnesota loses this case, then the value of 0:11:14.840 --> 0:11:17.880 the claims that other states and jurisdictions could make against 0:11:18.000 --> 0:11:21.640 Jewel against Altria will be a little bit lower. And 0:11:21.800 --> 0:11:24.920 Jewels already shown a desire to settle these cases. I 0:11:25.000 --> 0:11:27.880 just think it may be slightly more aggressive and settle 0:11:27.960 --> 0:11:29.880 for a little bit less. But at the end of 0:11:29.880 --> 0:11:32.160 the day, it seems to me that these companies have 0:11:32.320 --> 0:11:36.920 set aside huge reserves, you know, to pay off claims here, 0:11:37.160 --> 0:11:40.080 not because they agree that there was any deceptive marketing, 0:11:40.120 --> 0:11:42.800 but simply because it's not a popular position to be 0:11:43.120 --> 0:11:47.720 defending marketing that clearly impacted kids and drove more kids 0:11:47.760 --> 0:11:50.560 to vaping. And these companies just need to do what 0:11:50.600 --> 0:11:52.920 they can to get rid of these cases as efficiently 0:11:52.920 --> 0:11:55.080 as they can. So I think this case is going 0:11:55.120 --> 0:11:56.840 to be significant one way or the other. It's going 0:11:56.880 --> 0:11:59.560 to make these cases around the country a little bit 0:11:59.600 --> 0:12:03.040 more are a little bit lessvaluable. Critics of the public 0:12:03.120 --> 0:12:07.360 nuisance theory say that it allows executive officers like state 0:12:07.400 --> 0:12:12.440 attorneys general to improperly step in and replace the role 0:12:12.520 --> 0:12:16.280 of administrative agencies and lawmakers, which should be the ones 0:12:16.360 --> 0:12:20.120 regulating the industry. Do you agree with that or disagree? 0:12:20.440 --> 0:12:23.480 I mean, I'm not a stan of the expansion of 0:12:23.520 --> 0:12:26.360 public nuisance theory. I think that it played a very 0:12:26.520 --> 0:12:29.120 valuable role in America when it came to some of 0:12:29.160 --> 0:12:33.800 the terrible environmental harm that American industry imposed on different 0:12:33.800 --> 0:12:37.400 parts of the country, where we saw long term, real 0:12:37.720 --> 0:12:41.280 environmental costs that were imposed. You know, when toxins were 0:12:41.280 --> 0:12:43.440 spread in particular parts of the country. I think these 0:12:43.559 --> 0:12:48.280 kind of social behavior oriented public nuisance cases, as in 0:12:48.320 --> 0:12:52.320 the case of opioids and here, are really questionable. You 0:12:52.320 --> 0:12:54.480 can see why it's very exciting to states and to 0:12:54.600 --> 0:12:57.160 executive leaders. But I agree that the questions of the 0:12:57.240 --> 0:13:00.199 long term harm and long term responsibility are probably going 0:13:00.240 --> 0:13:02.720 to be addressed more accurately and with a little bit 0:13:02.800 --> 0:13:06.640 less passion and uncertainty in other places than putting them 0:13:06.640 --> 0:13:09.600 before juries. So I agree with that criticism. The trials 0:13:09.600 --> 0:13:12.959 expected to last three weeks, so we'll find out just 0:13:13.040 --> 0:13:16.200 how the public nusance theory works here. You know, this 0:13:16.280 --> 0:13:18.640 case makes me wonder what's the next issue that we're 0:13:18.640 --> 0:13:23.720 going to see where Americans engaging in dangerous unhealthy behavior 0:13:23.960 --> 0:13:26.319 is going to lead to a public nusance theory. I'm 0:13:26.320 --> 0:13:28.600 still waiting for the sugar industry, you know, for the 0:13:28.600 --> 0:13:32.079 first public nuisance case food. I don't know where it's 0:13:32.080 --> 0:13:34.160 going to be. But I think this kind of reflects 0:13:34.160 --> 0:13:36.640 the trend in American society where, you know, on the 0:13:36.640 --> 0:13:38.320 one he had is good to in my opinion, that 0:13:38.320 --> 0:13:42.880 we're thinking about where the dangers two consumers are. You know, 0:13:42.880 --> 0:13:45.160 On the other hand, it's not always easy to get 0:13:45.240 --> 0:13:49.360 right exactly who's to blame, Thanks Harry, that's healthcare attorney 0:13:49.400 --> 0:13:54.199 Harry Nelson of Nelson Hardeman. The United Nations has released 0:13:54.240 --> 0:13:57.440 an alarming report on the threat to the world's climate. 0:13:57.960 --> 0:14:02.760 UN Secretary General and Tone Guiterrez compared climate change to 0:14:02.840 --> 0:14:06.160 a ticking time bomb and call the report a how 0:14:06.240 --> 0:14:09.600 to guide to diffuse the climate time bomb. You have 0:14:09.679 --> 0:14:12.680 never been better equipped to solve the climate challenge. But 0:14:12.800 --> 0:14:16.400 we must move into warp speed climate action now. We 0:14:16.480 --> 0:14:19.840 don't have a moment to lose, and sixteen kids in 0:14:19.920 --> 0:14:23.840 Montana are not losing any time. They're suing the state 0:14:23.920 --> 0:14:27.480 for robbing them of a clean and healthful environment guaranteed 0:14:27.480 --> 0:14:31.440 in the state's constitution, with its energy policy and extensive 0:14:31.480 --> 0:14:34.640 support of fossil fuels. It will be the first trial 0:14:34.760 --> 0:14:38.840 involving a constitutional climate case, and it begins on June 0:14:38.880 --> 0:14:42.960 twelfth in Helena. Joining me is Michael Girard, director of 0:14:43.000 --> 0:14:46.560 the Sabin Center for Climate Change Law at Columbia Law School, 0:14:47.000 --> 0:14:50.120 tell us about the complaint file by these Montana kids. 0:14:51.120 --> 0:14:53.800 These young people are suing the state of Montana in 0:14:53.960 --> 0:14:59.040 Montana State Court saying that the state's fossil fuel friendly 0:14:59.600 --> 0:15:04.240 policy violate the state constitution. The Montana State Constitution has 0:15:04.240 --> 0:15:07.320 a cause guaranteeing a right to a clean and healthy environment, 0:15:07.960 --> 0:15:10.560 and the plaintiffs are saying that the state is violating 0:15:10.600 --> 0:15:13.720 that right by allowing so much coal and oil and 0:15:13.800 --> 0:15:20.720 gas throwing. And Montana added that language in nineteen seventy two. 0:15:21.200 --> 0:15:24.280 Has it done anything since nineteen seventy two to live 0:15:24.360 --> 0:15:27.760 up to that very little? They are one of the 0:15:27.880 --> 0:15:32.400 major fossil fuel producing states in the country. What is 0:15:32.400 --> 0:15:36.400 the state's response to this? The state says that provision 0:15:36.440 --> 0:15:40.560 of the constitution does not really mean that they have 0:15:40.640 --> 0:15:43.880 to do anything differently than what they're doing. They're saying 0:15:43.920 --> 0:15:47.200 that the young people don't have standing to sue, and 0:15:47.560 --> 0:15:50.520 most importantly, that it's not the job of the courts 0:15:50.640 --> 0:15:53.280 to set the state's energy and climate policy. That it's 0:15:53.360 --> 0:15:58.280 up to the elected legislature and governor. The plaintiffs are 0:15:58.800 --> 0:16:03.000 kids who have difference stories about how climate change affected them. 0:16:04.200 --> 0:16:08.920 That's right. They all have been affected by whether it's 0:16:08.960 --> 0:16:14.080 extreme heat or rainfall or drought or other kinds of issues, 0:16:14.120 --> 0:16:17.520 so that they are working to establish that they have 0:16:17.600 --> 0:16:21.720 been personally affected by climate change. The track, then, I assume, 0:16:21.840 --> 0:16:25.520 has said that they do have standing. Yeah, so far 0:16:25.640 --> 0:16:28.600 they may have to make additional showings in court, but 0:16:28.720 --> 0:16:31.160 so far they have standing, and so we have a 0:16:31.200 --> 0:16:35.600 trial set for June. Is this trial a first? There 0:16:35.600 --> 0:16:39.000 have been almost no trials on climate change at all. 0:16:39.400 --> 0:16:41.680 This is the first one that is asserting anything like 0:16:41.800 --> 0:16:45.640 these theories. There was one case more than twenty years 0:16:45.640 --> 0:16:49.200 ago from Vermont about motor vehicle standards, and another one 0:16:49.240 --> 0:16:52.160 a couple of years ago in New York about securitious disclosure. 0:16:52.200 --> 0:16:54.480 But this is the first one that's really getting into 0:16:54.520 --> 0:16:57.960 the merits of these issues. Why haven't those other cases 0:16:58.000 --> 0:17:01.040 gone to trial? What stopped them? The other cases have 0:17:01.240 --> 0:17:04.639 pretty much all been dismissed by the courts before the trial. 0:17:04.720 --> 0:17:08.280 The courts have found that there weren't adequate legal bases 0:17:08.280 --> 0:17:11.240 to bring them, or that it wasn't the job of 0:17:11.280 --> 0:17:13.880 the courts to decide these kinds of cases. But this 0:17:13.960 --> 0:17:19.560 is a case uniquely under the state constitution of Montana, 0:17:20.160 --> 0:17:22.320 and so it comes up in a much different way. 0:17:22.520 --> 0:17:24.359 But I should add that just a couple of weeks ago, 0:17:24.400 --> 0:17:28.320 the Supreme Court of Hawaii said that the environmental clause 0:17:28.359 --> 0:17:32.159 in the Hawaii Constitution required the state to act on 0:17:32.280 --> 0:17:35.480 climate change that was a legal matter without a trial. 0:17:35.800 --> 0:17:38.720 But we're seeing more and more of these state constitutional 0:17:38.760 --> 0:17:41.879 provisions having real teeth. What kind of testimony do you 0:17:41.880 --> 0:17:44.480 expect to hear a trial. I think we'll hear from 0:17:44.600 --> 0:17:49.600 climate scientists who are brought in by the plaintists to 0:17:49.640 --> 0:17:53.320 testify that climate change is happening, that is mostly a 0:17:53.400 --> 0:17:58.520 result of fossil fuel combustion, that those fossil fuels are 0:17:58.520 --> 0:18:02.600 being burnt because of the policies of the state of 0:18:02.840 --> 0:18:06.640 Montana in part, and that there are things that could 0:18:06.680 --> 0:18:10.280 be done to reduce the use and combustion of fossil fuels. 0:18:10.320 --> 0:18:13.760 There will also be testimony about the negative effects that 0:18:13.840 --> 0:18:18.000 these individual children have suffered. We'll see if Montana tries 0:18:18.040 --> 0:18:23.840 to rebut the scientific evidence. No court in the world 0:18:23.920 --> 0:18:28.199 really has seriously questioned climate science. We'll see if this 0:18:28.359 --> 0:18:31.879 is a first would they be able to have, you know, 0:18:32.359 --> 0:18:35.560 scientists come in and say this is not climate change. 0:18:36.200 --> 0:18:40.920 They can try. There are a very very small number 0:18:41.119 --> 0:18:45.840 of scientists to say that, you know, it's a complete 0:18:45.880 --> 0:18:49.680 opposition to overwhelming scientific consensus. But we'll see what to 0:18:49.840 --> 0:18:53.200 what tactics the state tries to pull out. So this 0:18:53.280 --> 0:18:56.560 case has been nearly a decade in the making. It's 0:18:56.560 --> 0:18:59.280 been going on for that long. Well, the planning has 0:18:59.560 --> 0:19:01.520 for it has been going on for some time, and 0:19:01.680 --> 0:19:07.879 we've seen these cases brought under similar theories going on 0:19:07.960 --> 0:19:10.879 for quite a few years. The plaintiffs, what kind of 0:19:10.920 --> 0:19:15.400 relief are they seeking? Well, initially they're seeking a declaration 0:19:15.560 --> 0:19:19.320 from the court that the policies and actions of Montana 0:19:19.440 --> 0:19:24.040 violate the state constitution and are illegal. But beyond that, 0:19:24.080 --> 0:19:28.640 they're asking the court to require the state to come 0:19:28.720 --> 0:19:33.159 up with a plan to greatly reduce fossil fuel use 0:19:33.240 --> 0:19:37.199 and emissions. We'll see how far the court goes. That 0:19:37.200 --> 0:19:42.040 would be an extraordinary relief. No matter who prevails, it's 0:19:42.119 --> 0:19:44.240 likely this is going to be appealed to the State 0:19:44.280 --> 0:19:48.240 Supreme Court. Yes, I think it's likely that whoever loses, 0:19:48.600 --> 0:19:50.960 the loser will appeal a case to the decision to 0:19:51.040 --> 0:19:54.359 the state Supreme Court. So what a decision for the 0:19:54.480 --> 0:19:59.680 kids in this case have an impact outside Montana? Yes, 0:20:00.000 --> 0:20:02.480 it would be a very strong signal about the potential 0:20:02.560 --> 0:20:06.560 role of the courts. We saw a comparable situation a 0:20:06.600 --> 0:20:09.400 couple of years ago where the Supreme Court of the 0:20:09.440 --> 0:20:15.119 Netherlands ordered that country's government to greatly reduce greenhouse gas emissions, 0:20:15.160 --> 0:20:18.920 and that helps spur quite a few similar lasses in 0:20:19.040 --> 0:20:22.680 other countries around the world. If the plaintiffs win this case, 0:20:22.720 --> 0:20:26.520 we may see more litigation using similar theories in other 0:20:27.000 --> 0:20:30.240 places in the US. You know, I remember the case 0:20:30.280 --> 0:20:36.200 of Juliana the United States, and that also bit young people, 0:20:36.240 --> 0:20:40.520 but against the federal government. What happened to that case? Ultimately, 0:20:40.600 --> 0:20:43.200 the Court of Appeals for the Ninth Circuits, in a 0:20:43.280 --> 0:20:47.560 two to one decision, dismissed the case, saying that it 0:20:47.600 --> 0:20:50.320 was not the role of the courts to be setting 0:20:50.440 --> 0:20:54.359 energy and climate policy. The plaintiffs have now made a 0:20:54.440 --> 0:20:58.359 motion to the district court to amend their complaint to 0:20:58.440 --> 0:21:03.919 seek less traumatic relief, and the court has been considering 0:21:03.960 --> 0:21:07.240 that motion for about a year. That's a long time 0:21:07.320 --> 0:21:11.159 to consider emotion. So why do you think it is 0:21:11.240 --> 0:21:17.439 that children and teenagers are so concerned about climate change? 0:21:17.480 --> 0:21:20.240 When you think about teenagers, to think about them doing 0:21:20.280 --> 0:21:23.320 more fun things than worrying about the climate, Well, it's 0:21:23.359 --> 0:21:26.600 their future. That's a steak. By the time they get 0:21:26.640 --> 0:21:30.480 to be old men and women, the climate could be 0:21:30.520 --> 0:21:33.280 in what much worse shape than it is now? And 0:21:33.359 --> 0:21:37.720 so they have a particularly strong steak in the future, 0:21:37.920 --> 0:21:40.200 much more than those of us who won't be around 0:21:40.240 --> 0:21:44.760 that long. And now let's change the conversation a lot 0:21:45.240 --> 0:21:49.359 to a tiny island in the Pacific trying to do 0:21:49.440 --> 0:21:54.240 something about climate change outside its borders. The tiny Pacific 0:21:54.280 --> 0:21:57.280 island nation of Anahuatu is trying to get in front 0:21:57.280 --> 0:22:00.600 of the International Court of Justice in the Hague with 0:22:00.680 --> 0:22:04.640 the question of what are the legal obligations of the 0:22:04.680 --> 0:22:08.440 major omitting countries to reduce their greenhouse gas emissions so 0:22:08.480 --> 0:22:12.240 that the small island nations don't drown. In order to 0:22:12.280 --> 0:22:15.880 get before the International Court of Justice, it's necessary to 0:22:16.240 --> 0:22:19.119 have a majority vote of the members of the United 0:22:19.200 --> 0:22:23.120 Nations General Assembly. That vote is coming up on Thursday, 0:22:23.680 --> 0:22:27.000 and it now appears that after several years of campaigning, 0:22:27.040 --> 0:22:31.040 Banawatu has the votes and it looks almost certain that 0:22:31.080 --> 0:22:33.680 this motion is going to pass. In the case we'll 0:22:33.720 --> 0:22:37.640 go to the Hay what impact would a ruling by 0:22:37.640 --> 0:22:41.720 the Hay have? So they don't have the ability to 0:22:41.840 --> 0:22:47.840 order countries to do anything. However, many domestic courts, courts 0:22:47.840 --> 0:22:50.800 of a lot of other countries have been issuing rulings 0:22:50.880 --> 0:22:55.160 based on international law and human rights theories of acquiring 0:22:55.760 --> 0:22:58.920 their countries to do more on climate change. A decision 0:22:59.040 --> 0:23:01.840 from the International Court of Justice would be the most 0:23:02.040 --> 0:23:06.720 definitive statement yet about how international law and Newman rights 0:23:06.800 --> 0:23:10.480 law applied a climate change and it could spur even 0:23:10.640 --> 0:23:15.760 stronger decisions by the domestic courts of more countries. To 0:23:15.880 --> 0:23:20.400 someone looking from the outside at these climate change cases, 0:23:20.680 --> 0:23:23.280 it seems as if we hear a lot about the 0:23:23.359 --> 0:23:27.879 cases and then disappointing conclusions for those who want to 0:23:27.880 --> 0:23:31.000 fight climate change. I mean even you know the Supreme 0:23:31.000 --> 0:23:34.440 Court last year in the West Virginia EPA case, our 0:23:34.520 --> 0:23:38.479 climate change activists making headway, or they are making headway, 0:23:38.600 --> 0:23:42.320 not enough. But back in two thousand and seven, the 0:23:42.359 --> 0:23:46.040 Supreme Court, in a case called Masterchusetts versus EPA, said 0:23:46.080 --> 0:23:48.640 that EPA had the power under the Clean Air Act 0:23:48.680 --> 0:23:52.800 to regulate greenhouse gases. Based on that, the Obama administration, 0:23:53.400 --> 0:23:57.600 using the Supreme Court decision, did many things that reduced 0:23:57.680 --> 0:24:01.080 greenhouse gas emissions. There are lots of others out there. 0:24:00.920 --> 0:24:04.399 There's not a magic bullet, there's no one decision that 0:24:04.560 --> 0:24:07.240 is going to solve climate change, but a lot of 0:24:07.240 --> 0:24:11.479