Sariel Sandoval, member of the Bitterroot Salish, Upper Pend d’Oreille, and Diné Tribes, poses for a portrait in Berkeley, Ca. on Friday, July 28, 2023. Sandoval is one of 16 youth plaintiffs suing the state of Montana over its contributions to climate change. | Amy Osborne / The Washington Post.
In the first ruling of its kind nationwide, a Montana state court decided Monday in favor of young people who alleged the state violated their right to a “clean and healthful environment” by promoting the use of fossil fuels.
The court determined that a provision in the Montana Environmental Policy Act has harmed the state’s environment and the young plaintiffs, by preventing Montana from considering the climate impacts of energy projects. The provision is accordingly unconstitutional, the court said.
The win, experts say, could energize the environmental movement and reshape climate litigation across the country, ushering in a wave of cases aimed at advancing action on climate change.
“People around the world are watching this case,” said Michael Gerrard, the founder of Columbia’s Sabin Center for Climate Change Law.
The ruling represents a rare victory for climate activists who have tried to use the courts to push back against government policies and industrial activities they say are harming the planet. In this case, it involved 16 young Montanans, ranging in age from 5 to 22, who brought the nation’s first constitutional and first youth-led climate lawsuit to go to trial.
Though the cumulative number of climate cases around the world has more than doubled in the last five years, youth-led lawsuits in the United States have faced an uphill battle. Already, at least 14 of these cases have been dismissed, according to a July report from the United Nations Environment Program and the Sabin Center. The report said about three-quarters of the approximately 2,200 ongoing or concluded cases were filed before courts in the United States.
Experts said the Montana youth had an advantage in the state’s constitution, which guarantees a right to a “clean and healthful environment.”
Coal is critical to the state’s economy, and Montana is home to the largest recoverable coal reserves in the country. The plaintiff’s attorneys say the state has never denied a permit for a fossil fuel project.
Across five days of emotional testimony in June, the youths made claims about injuries they have suffered as a result of climate change. A 15-year-old with asthma described himself as “a prisoner in my own home” when isolating with covid during a period of intense wildfire smoke. Rikki Held, the 22-year-old plaintiff for whom the lawsuit is named, detailed how extreme weather has hurt her family’s ranch.
Held testified that a favorable judgment would make her more hopeful for the future. “I know that climate change is a global issue, but Montana has to take responsibility for our part in that,” she said.
Attorneys for the state countered that Montana’s contribution to global greenhouse gas emissions is small. If the law in question were altered or overturned, Montana Assistant Attorney General Michael Russell said, there would be “no meaningful impact or appreciable effect” on the climate.
The state began and rested its defense on the same day, bringing the trial to an unexpectedly early closeon June 20. In a pivot from its expected defense disputing the climate science behind the plaintiffs’ case, the state focused instead on arguing that the legislature should weigh in on the contested law, not the judiciary. Russell derided the case in his closing statement as a “week-long airing of political grievances that properly belong in the Legislature, not a court of law.”
Gerrard said the change in strategy came as a surprise: “Everyone expected them to put on a more vigorous defense,” he said. “And they may have concluded that the underlying science of climate change was so strong that they didn’t want to contest it.”
Though the state is expected to appeal the decision, experts said the favorable verdict for the youths could influence how judges approach similar cases in other states and prompt them to apply “judicial courage” in addressing climate change.The nonprofit law firm Our Children’s Trust, which represents the plaintiffs, has taken legal action on behalf of youths in all 50 states, and has cases pending in four other states.
Juliana v. United States, a 2015 case brought by Our Children’s Trust that drew international attention, is also back on path to trial after facing repeated setbacks. The case took aim at the federal government, alleging that it had violated the 21 youths’ rights to life, liberty and property, as well as failed to protect public trust resources, in taking actions that contribute to climate change.
Plaintiffs’ attorney Phil Gregory said the court’s verdict could empower youth everywhere to take to the courts to secure their futures.
“There are political decisions being made without regard to the best scientific evidence and the effects they will have on our youngest generations,” he said. “This is a monumental decision.”
BENICIA – The Bay Area Air Quality Management District announced Thursday that it had discovered continued violations at the Valero Benicia refinery during its investigation into years of toxic releases.
Specifically, the air district said that Valero had failed to install required pollution control equipment on eight pressure relief devices, safety devices that prevent extreme over pressurization that could cause a catastrophic equipment failure. The violations led to 165 tons of illegal emissions, the air district said. [Emph. added by BenIndy contributor.]
The air district said it is seeking an abatement order from its independent hearing board that would require Valero to immediately correct the violations.
“The extensive violations discovered at Valero’s Benicia refinery are of great concern,” air district chief counsel Alexander Crockett said in a statement. “Our priority is to protect the health and well-being of our communities, and we will vigorously pursue enforcement measures to achieve cleaner and safer air for all residents of the Bay Area.”
A Valero spokesperson did not immediately respond to a request for comment.
Benicia Mayor Steve Young said in a statement that Valero’s alleged continued pattern of emissions violations is “particularly concerning” and “should bother all Benicia residents.”
“The City is also waiting, with increasing impatience, to see how the separate, bigger, case of 16 years of unreported hydrogen emissions will be ultimately resolved,” Young said. “The citizens of Benicia deserve much more transparency from the refinery about these operational deficiencies than we have been receiving.”
The air district discovered the violations during its investigation into the release of toxic emissions from a hydrogen vent at the refinery that went on for nearly 20 years. The air district separately obtained an abatement order for those violations last year, though by the time it revealed the excess emissions publicly, it had already worked with Valero to correct them for some time.
Those excess emissions were first detected by Valero in 2003 when it started measuring output from the hydrogen vent, but the air district believes it likely had been going on even earlier and has no measurements from that time.
Since 2003, the air district estimates that the vent was releasing about 4,000 pounds of hydrocarbons per day, far more than state regulations allow. Overall, the district found that Valero released more than 10,000 tons of excess hydrocarbons over 16 years, including 138 tons of toxic air contaminants ethylbenzene, tolyrene, zolerine and the especially carcinogenic benzene.
Please – anyone can report Air Quality issues/events to the Bay Area Air Quality Management District: General Public Information: (415) 749-4900, or Air Quality Complaints: 1-800-334-ODOR (6367)
[Note from BenIndy Contributor Nathalie Christian: Between the Benicia Peddler’s Fair this weekend the start of school next week, we’re entering a period of high risk for COVID exposure. Please take a moment to read about the new, highly transmissible “Eris” variant below and make choices that match not just your risk level, but the risk level of those closest to you – especially the elderly and the immunocompromised. If you’re in a high-risk group, don’t hesitate to reach out to your healthcare provider if you are experiencing symptoms. Not only is Paxlovid plentiful, it is also very effective; in its initial trial involving unvaccinated, high-risk patients, Paxlovid reduced hospitalization or death by 86 percent. Stay vigilant, stay safe.]
What to know about ‘Eris,’ the new COVID-19 subvariant sweeping the US
Lu Foster receives a COVID-19 booster shot at the Lynne and Roy M. Frank Residences in San Francisco in October 2021. The FDA approved a second bivalent booster dose for older adults and people with compromised immune systems. | Brontë Wittpenn for The Chronicle.
The EG.5 “Eris” variant is now the dominant COVID-19 strain in the U.S. Here’s what to know about transmission and symptoms.
A new COVID-19 variant called EG.5 is sweeping across the United States as cases and hospitalizations rise. The fast-spreading new COVID subvariant, also referred to as Eris, is now the dominant strain circulating in the U.S., health officials say.
As of last week, EG.5 accounted for the largest proportion of COVID-19 infections in the country compared to any other variant, according to the latest data from the U.S. Centers for Disease Control and Prevention,
Eris is also on the rise in several other countries around the globe. On Wednesday, Aug. 9, the World Health Organization decided to classify EG.5 as a “variant of interest.”
The new subvariant, which experts nicknamed “Eris” on social media, started circulating in the U.S. earlier this spring. Last month, EG.5 quickly overtook the prevailing omicron XBB subvariants, which had been driving the largest share of cases in the country.
During a two-week period ending on Aug. 5, Eris accounted for an estimated 17.3% of new confirmed COVID-19 cases in the U.S., up from 12% two weeks prior, according to the latest CDC data.
Many are wondering if the EG.5 subvariant is more transmissible or severe, and whether it’s causing different symptoms.
What is EG.5 , aka Eris?
EG.5 is a descendant of the omicron XBB sublineage of the virus (specifically, XBB.1.9.2), but it has an extra mutation in its spike protein, according to a WHO risk evaluation report.
“When we look at its sequence, EG.5 is really similar to the other XBB variants that are circulating right now, with a couple of small changes,” Dr. Andrew Pekosz, a virologist at Johns Hopkins University, tells TODAY.com.
The WHO added EG. 5 to its list of variants under monitoring on July 19, 2023, but the variant was first detected in February 2023. “Scientists have known about this variant, and it’s been present in other countries, as well,” says Pekosz.
So far, EG.5 has been reported in 51 countries and there has been a steady increase in prevalence globally — the majority of sequences are from China, followed by the U.S., South Korea, Japan and Canada, per WHO.
XBB.1.16, also called the “Arcturus” variant, remains the most prevalent strain of COVID-19 worldwide.
WHO considers the public health risk posed by EG.5 to be “low” and similar to that of XBB.1.16 and other variants of interest.
Is EG. 5 more transmissible?
The EG.5 variant is very similar to other omicron variants, which means it’s highly transmissible, Dr. Albert Ko, an infectious disease physician and professor at Yale School of Public Health, tells TODAY.com.
However, EG.5 is likely more transmissible than other XBB variants, Dr. Sharon Nachman, chief of the division of pediatric infectious diseases at Stony Brook Children’s Hospital, tells TODAY.com.
“If it was equally transmissible, then we wouldn’t see it gaining strength number-wise compared to some of the other variants,” says Nachman, adding that EG.5 quickly pushed out other XBB variants in the U.S., which were dominant over the summer.
Why exactly EG.5 is more transmissible is not yet known, Ko says.
“Whether it’s escaping population immunity or it has some intrinsic factor that makes it better able to transmit from one person to another … it’s hard to separate,” he adds.
According to WHO, EG.5 has increased immune escape properties compared to other variants. “EG.5 may cause a rise in case incidence and become dominant in some countries or even globally,” WHO said in a report.
However, Pekosz notes that the EG.5 variant may not be the sole reason for the U.S. summer uptick. “When you have a new variants, and cases creeping up, there’s always concern about whether that variant could be driving the increase,” says Pekosz.
“Right now, it doesn’t look like that variant alone is driving the case increases (in the U.S.) … there’s still a lot of other variants co-circulating,” he adds.
According to CDC estimates, EG.5 accounted for about 17% of COVID-19 cases in the U.S. during the two-week period ending on Aug. 3. — after EG.5, the next most common variants were XBB.1.16, XBB.2.3, and XBB.1.5, which accounted for 15%, 11% and 10% of cases, respectively.
“We’re keeping an eye on (EG.5) because of the uptick in cases, but it doesn’t look like there’s anything particularly concerning about this variant,” says Pekosz.
More data is needed to understand how EG.5’s transmissibility compares to other strains. However, decreased levels of testing and genomic sequencing are making it harder to accurately track new COVID-19 cases and which variants are driving them, Pekosz notes.
“Right now, there’s an awful lot of guesswork,” he says.
Is EG.5 more severe?
The data available do not indicate that EG.5 causes a more severe infection compared to other variants, the experts note.
In its risk assessment of EG.5, WHO said, “There have been no reported changes in disease severity to date.”
Although the U.S. recently saw the first increase in COVID-19 hospitalizations of the year, there isn’t evidence that EG.5 is causing this uptick or that it’s more likely to cause hospitalizations in general, Nachman notes.
“The people that are getting hospitalized often have lots of co-morbidities, and they’re at-risk no matter what COVID strain they get,” says Nachman.
However, it’s possible that hospitalizations could increase even more because of more people getting infected with EG.5, says Ko. “There’s no clear evidence of that at this point, but we have to keep on evaluating,” Ko adds
Population immunity from vaccination and prior infection should protect people from severe illness as EG.5 continues to circulate.
What are the symptoms?
There isn’t enough clinical data about the most common symptoms of EG.5 yet, NBC News previously reported.
“There’s no change in EG.5 symptoms right now,” says Pekosz. So far, the symptoms of EG.5 look very similar to the standard omicron symptoms, says Ko. These include:
Cough
Sore throat
Runny nose
Sneezing
Fatigue
Headache
Muscle aches
Altered sense of smell
“It may progress to some more significant feelings of difficulty in breathing as the infection spreads into your lungs,” says Pekosz.
Certain groups are at higher risk of developing severe illness or complications, including people over 65 and those who are immunocompromised or have underlying medical conditions.
Can COVID-19 tests detect EG.5?
All COVID-19 tests — including PCR tests performed by a medical provider and rapid at-home antigen tests sold over-the-counter — should be detecting EG.5, says Pekosz.
The experts emphasize the importance of getting tested as COVID-19 cases increase, and especially during the fall when viruses that cause similar symptoms (such as flu and RSV) are circulating.
“If you’re in one of the high-risk groups for getting severe COVID, you really shouldn’t hesitate to get a test,” says Pekosz, adding that early detection and treatment is key. COVID-19 antivirals such as Paxlovid are effective against EG.5 and other variants, but they work best when taken early, he adds.
Whether your insurance covers COVID-19 testing may have changed since the end of the U.S. federal public health emergency in May, TODAY.com previously reported, so check with your insurer if you have questions about testing costs.
It’s also important to check the expiration date of at-home tests. The shelf life of rapid tests ranges from four to 24 months, according to the U.S. Food and Drug Administration, but the expiration dates of some tests have been extended.
Will I need a COVID-19 booster this fall?
The experts encourage everyone to stay up to date on COVID-19 vaccines, which may include a new booster dose in the coming months. In June 2023, the FDA advised vaccine manufacturers to update their boosters to target omicron XBB.1.5, which was the dominant strain at the time.
These shots haven’t been approved yet, but the FDA could authorize Pfizer’s booster shot by the end of August, NBC News reported.
Although the new boosters will not include the EG.5 strain, they may still provide protection, the experts note. “If I vaccinate you with the vaccine that contains XBB, you will make antibodies that are specific to XBB and pretty close to EG.5,” says Nachman.
“Right now, EG.5 looks like it’s very closely matched to the vaccine that’s going to be available this fall,” says Pekosz.
However, the CDC has not yet released any firm guidance or recommendations around booster doses for the fall.
“The message is to pay attention to the COVID vaccine program that’s going to come out in the fall. … It’s a vaccine that many people (especially high-risk individuals) should consider taking,” says Pekosz.
How to protect yourself from EG.5:
In addition to staying up to date on COVID-19 vaccinations, the experts emphasize taking precautions to protect yourself and curb transmission of COVID-19, including:
[Note from BenIndy Contributor Nathalie Christian: Sheri’s words and work on the La Migra series need no introduction, so you don’t see me here often. However, this time, I would like to draw extra attention the painful reality that the 2023 La Migra game occurred on Cesar Chavez Day, as Sheri notes below. Benicia High School previously had a tradition of student-led ‘slave auctions’ that continues in other school districts; now imagine if one had occurred on Martin Luther King, Jr. Day. Whether the timing was coincidence or cruelty, I can’t say, but both represent a serious need for real conversations, and real change. Sheri is clearly invested in both, as is BUSD Superintendent Dr. Wright. (The above represents my opinion and my opinion alone.)]
Sheri Leigh speaks with Benicia Superintendent Dr. Damon Wright for the School District’s perspective
Sheri Leigh, Benicia resident and educator.
Once school was out for the summer, I met with Dr. Damon Wright, Benicia Unified School District (BUSD) Superintendent. We met in his office to discuss the impacts of the ‘La Migra’ games. Dr. Wright was welcoming and transparent in his manner, and open to ideas and public input. He and I found that we share a deep commitment to eliminating racism in schools and the community, and creating a safe and equitable environment for all young people.
Dr. Damon Wright became the Benicia Unified School District Superintendent in May of 2022, but he is not new to Benicia. For several years, beginning 2012, Dr. Wright was the Principal of Benicia High School. He then took an administrator position in the Fairfield School District Administration office before returning to us in his current leadership role.
Dr. Wright’s motto is, “education is the great equalizer,” and he is a champion for equity. He promotes holistic support for social-emotional, as well as academic, learning. He does not want our young people to be involved in the student-orchestrated ‘La Migra Games.’
Dr. Damon Wright, Benicia Unified School District Superintendent. | Photo from BUSD Press Release.
Although the premise of the ‘game’ is upperclassmen vs. lowerclassmen, the name, ‘La Migra; is triggering to many. Dr. Wright clearly recognizes the racially charged and highly offensive reference to the disturbing plight of the undocumented immigrants in this community and in this country. The game is not only potentially dangerous for the participants, it mocks the marked racially and socio-economically based imbalance between those who are established and hold the power, and those who are trying to get a foothold into a better life for themselves and their families. That’s the parallel- those that are on top versus those who are on the bottom. That explains the connection to ‘La Migra’ but hardly makes it right.
One of the preliminary action items on Dr. Wright’s agenda when assuming his leadership position at the Benicia School District was to stop the students from participating in the La Migra game. He began his efforts in earnest during the fall of 2022. Working in tandem with the City staff and the police department, Dr. Wright and his team developed a plan of action.
At school, Dr. Wright worked closely with Benicia High School Principal Briana Kleinschmidt, engaging the staff and student leaders to discourage student involvement. Although only a small percentage of the school population actually participate in the game, the school leaders made an all-out effort to educate the community about this tradition.
Dr. Wright and school administrators sent several pieces of correspondence to staff and families, informing them about the La Migra games and encouraging parents to keep their students home. The student based group, Friday Night Live, which promotes healthy and safe student activities, took it upon themselves to create and put up posters, dissuading students from participating in the games. Other student leaders talked with their classmates about the implications of the game and cautioned them against being part of it.
Click to enlarge. On March 29, 2023, BUSD issued a warning to parents and families of students that the game was imminent, describing its rules and warning of the potential physical and emotional harm. Despite this warning, and the coordinated, widespread and targeted efforts of BUSD staff and students along with other community partners, the game continued. Twenty children were apprehended by the police, with one facing charges of assault and battery.
At the community partnership level, Dr. Wright participated in meetings with police and city officials. Together, they learned of the date, time and location of the starting point of the 2023 game, which ironically happened to be on March 31, the national holiday set aside to commemorate the Latino American civil rights and labor movement activist Cesar Chavez. The police also carried maps of the City, tracking possible routes from the starting point to the destination or endpoint of the game, and where underclassmen, posing as undocumented immigrants and refugees, were attempting to reach on foot before being ‘captured and deported’ by the upperclassmen.
Dr. Wright, along with several other school officials and five police vehicles, went to the opening of the game that evening. Dr. Wright spoke to the students who were there. He urged them to consider the emotional impacts of the game on anyone who had any experience with or fears of immigration and the perpetuation of a racist attitude towards the disenfranchised. He indicated the awaiting police officers and gave one final plea for the students to reconsider their intentions before they got hurt or became unwittingly involved with law enforcement. He challenged them to change their evening plans and go home safely without consequence.
Before Dr. Wright was finished speaking, the ‘game’ began. That evening, several students were apprehended by the Benicia police. These students were detained at the station and remanded to their parents. One upperclassman was charged with battery for wielding and firing a pellet gun.
‘La Migra’ is slang for Immigration and Customs Enforcement (ICE) and is the name used for this controversial game based on ICE agents deporting undocumented immigrants. This image is from a 2018 video showing footage of the Game starting.
Because the La Migra games are not school-based, nor do they happen on school property or during school hours, the District cannot enforce any disciplinary action. That restriction is outlined in the California Department of Education and Benicia School Board Codes.
However, if the games continue, Dr. Wright is willing to consider other types of consequences for participants. For example, school-based extracurricular sports and other teams or clubs have their own Codes of Conduct, which can be revised to include consequences for inappropriate social behavior outside of school. The privilege of participating in graduation events can also be considered.
Last year, the efforts made by Dr. Wright and his team to inform the community and discourage the students from taking part in the Migra Games had a positive impact. There were fewer students participating in the La Migra Games in spring of 2023 than in previous years. More parents were aware and kept their children home. Dr. Wright is proud of the efforts of his team and the students and families who took a proactive and progressive approach towards abolishing the game, and looks forward to a continued concerted effort, eventually resulting in the elimination of any celebration of La Migra. It is his hope that within a short time, the game will become less and less popular, and Benicia students will finally and irrevocably do away with this hurtful and unsafe tradition.
Share your story
If you would like Sheri to hear and share your perspective on the ‘La Migra’ Game, please contact her through theBenicia Independent. Remember that it is your story that is critical for others to hear, not your name, unless you would like to be identified.
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