Stephanie Hanes
Tue, August 15, 2023
Montana lawmakers violated young people’s rights – and the state constitution – by ignoring fossil fuels’ impact on the climate, a judge ruled Monday.
In her decision supporting 16 young plaintiffs in Held v. Montana – the first constitutional climate case to be tried in the United States – District Judge Kathy Seeley wrote that fossil fuel extraction and use within the state was clearly tied to global climate change. She also found that young people have a particular standing to demand changes, since they will be disproportionately and negatively impacted by a rapidly heating planet. The decision has broad implications for environmental action across the country and, potentially, the world.
“It’s one of the strongest decisions on climate change ever issued,” says Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia University’s law school, which keeps a database of the more than 2,000 climate lawsuits that have been filed globally.
While the legal arguments in the Montana case, which did not seek financial compensation or damages, are specific to the state, he says, the judge’s findings on climate science itself were broadly noteworthy and decisive. And it could help influence an explosion of climate lawsuits making their way through court systems across the U.S.
For much of the June trial, internationally renowned scientists gave testimony explaining the connections between fossil fuel use and climatic disruptions such as increased wildfires, heat extremes, and drought.
It was one of the first times that both climate science and climate change denialism were put under the microscope of American legal questioning, Mr. Gerrard said earlier this summer. And the judge’s decision reflects what many court-watchers noted during the trial: Climate science, already highly vetted and agreed upon by experts worldwide, is convincing – as are the impacts of a heating world on young people.
While the plaintiffs used their allotted five days of trial to deeply question scientists and youths, the state rested its case after a day. It called only three witnesses, canceling at the last minute the appearance of a climatologist who had publicly spread doubt about climate change.
“This case is a clear win for climate science,” said Delta Merner, lead scientist at the Science Hub for Climate Litigation at the Union of Concerned Scientists, in a statement. “Throughout the trial, climate science, the role fossil fuel emissions play in climate change, and the harm being caused to Montana’s youth were irrefutable.”
Julia Olson, chief legal counsel and executive director with Our Children’s Trust, the law firm that represents the Montana plaintiffs and other young people in climate cases making their way through other state legal systems, also called the ruling a “sweeping win.”
“Today, for the first time in U.S. history, a court ruled on the merits of a case that the government violated the constitutional rights of children through laws and actions that promote fossil fuels, ignore climate change, and disproportionately imperil young people,” she said in a statement.
But Emily Flower, spokesperson for Montana Attorney General Austin Knudsen, decried the ruling as “absurd.” She said the office planned to appeal, saying the judge had allowed plaintiffs to put on a “taxpayer-funded publicity stunt.”
During the trial, the state argued that Montana was not the cause of global climate disruption and that it therefore could not be held responsible for the alleged harm young people experienced. Defense attorneys declined to cross-examine young people, ages 5 to 22, who described grief, loss, and fear as their ranch lands burned and their fishing rivers lost water, as smoke inhalation became part of their sports seasons, and as rising temperatures and melting glaciers threatened a landscape they loved.
Earlier in the year, the office called the young plaintiffs “well-intentioned children” exploited by “an out-of-state organization.”
For Grace Gibson-Snyder, a 19-year-old plaintiff, this line has always been particularly galling. She is a sixth-generation Montanan whose great-great-great-grandmother came to the state in a covered wagon, following the gold rush.
She understands why Montanans are particularly attuned to outsiders disrupting their way of life – whether it’s the Californians moving into her home city of Missoula who are perceived to be running up property values, or vacationers buying up large homes and then trying to control ranching methods.
But this is home for her and her fellow plaintiffs, she says. They are clear-sighted, and fearful, about what is happening to their beloved state.
“I don’t think climate change should be a political issue,” she said during an interview earlier this month in Missoula, part of an upcoming global Monitor series on young people and climate. “But it keeps getting politicized. We’re still accused of bringing in out-of-state, liberal ideas and attorneys. And that’s actually a misrepresentation, both literally and also in terms of our goals.”
Ms. Gibson-Snyder is uncomfortable with the label of climate “activist.” It feels too disruptive, she says, when really she believes in government, democracy, and law. And it also doesn’t feel right for her state, she says, where care for the outdoors is widely bipartisan.
The lawsuit, she says, was simply asking elected leaders to do what they are supposed to do.
And that, in many ways, is itself specific to Montana. The state is one of a handful, including Hawaii and Massachusetts, that has environmental protection written into its constitution. It reads, “The state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations,” and it requires the legislature to protect the “environmental life system” from depletion and degradation.
That constitutional requirement, reflective of the state’s long reverence for the outdoors, was the base of Judge Seeley’s decision.
“My overwhelming emotion is relief,” Ms. Gibson-Snyder wrote in an email after the verdict. “There is still hope. Hope for me and the other youths’ futures, hope for Montana and the places we love. Hope for the rest of the world to follow suit.
“Thank you to the courts for upholding our constitutional rights,” she continued. “Thank you to all of the people who have expressed their concerns about the future, brought diverse perspectives to ensure all people are cared for, and spent time fighting for our state.”
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Tue, August 15, 2023 at 6:35 AM MDT·5 min read
THE CONVERSATION
The young plaintiffs in Held v. State of Montana, ages 5 to 22, walk to the courthouse with their lawyer. William Campbell/Getty Images
Sixteen young Montanans who sued their state over climate change emerged victorious on Aug. 14, 2023, from a first-of-its-kind climate trial.
The case, Held v. State of Montana, was based on allegations that state energy policies violate the young plaintiffs’ constitutional right to “a clean and healthful environment” – a right that has been enshrined in the Montana Constitution since the 1970s. The plaintiffs claimed that state laws promoting fossil fuel extraction and forbidding the consideration of climate impacts during environmental review violate their constitutional environmental right.
Judge Kathy Seeley’s ruling in the youths’ favor sets a powerful precedent for the role of “green amendments” in climate litigation.
The lawsuit, heard in Montana district court, was the first in the U.S. to rely on a state’s constitutional right to a clean and healthful environment to challenge state policies that fuel climate change. In light of the success in Held, it won’t be the last.
Rikki Held, the lead plaintiff in the Montana case, center seated, confers with the Our Children’s Trust legal team before the start of the trial on June 12, 2023. William Campbell/Getty Images
What is a green amendment?
The U.S. Constitution does not contain a green amendment, but several state constitutions do.
Pennsylvania, Montana, Hawaii, Massachusetts and Illinois all amended their state constitutions during the environmental movement of the 1970s to recognize the people’s right to a clean and healthful environment. Because these green amendments are constitutional provisions, they function as limits on what government can do.
Early cases in Pennsylvania and Illinois testing these newly recognized constitutional rights saw little success. By the 1990s, the Illinois Supreme Court had eviscerated Illinois’ green amendment, concluding that the environmental right did not provide a basis upon which a citizen could bring a lawsuit.
In 1999, however, when green amendments were all but forgotten, a single case in Montana quietly vindicated Montanans’ constitutional right to a clean and healthful environment.
It was brought by local environmental groups over water quality concerns at a proposed gold mine. At that time, Montana’s environmental laws allowed the state to issue permits for projects that would discharge pollutants into Montana waters without conducting any environmental review. The Montana Supreme Court determined that such a law violated Montanans’ fundamental right to a clean and healthful environment and was unconstitutional.
Montana’s forests are facing new threats as temperatures rise. Whitebark pine, a foundational species, are increasingly at risk from diseases and insects that previously couldn’t thrive in the high-mountain habitat. Chip Somodevilla/Getty Images
The next green amendment success took 14 years and occurred in Pennsylvania. In the early 2010s, Pennsylvania enacted a state law that gave the oil and gas industry the right to commence hydraulic fracturing, or fracking, anywhere in the state. This law prevented local governments from making land use decisions to restrict or limit fracking in their jurisdictions. The Pennsylvania Supreme Court struck down this state law as violating Pennsylvanians’ constitutional right to a clean and healthful environment.
That Pennsylvania decision ignited an explosion of interest in green amendments.
In Hawaii, public interest groups began challenging the state’s approval of carbon-intensive electricity generation on the ground that it violates Hawaiians’ right to a clean and healthful environment. The state now relies on its green amendment to reject new carbon-intensive electricity sources for powering Hawaii.
In 2022, New York became the first state since the 1970s to adopt a green amendment. Currently, Arizona, Connecticut, Iowa, Kentucky, Maine, Nevada, New Jersey, New Mexico, Tennessee, Texas, Vermont, Washington, and West Virginia are considering adopting green amendments.
Success in Montana
Based on the extensive scientific evidence presented at the trial in June, Judge Seeley found that the Montana youth are being harmed by climate change occurring in Montana and that those climate change effects can be attributed to the state law the plaintiffs challenged.
Seeley also determined that declaring the state law forbidding the consideration of climate impacts during environmental review unconstitutional would alleviate further harm to the youth. On these grounds, she struck down the state law as unconstitutional.
This result sets a groundbreaking precedent for climate litigation and demonstrates a new way in which green amendments can be invoked to elicit environmental change. It suggests that in other states with green amendments, state laws cannot forbid the consideration of greenhouse gas emissions and their climate impact during environmental review.
Wildfire smoke has become an unwelcome part of life during summer and fall in parts of Montana. Robin Loznak/Getty Images
However, Seeley made it clear long before trial that she does not have the power to order the state to create a remedial plan to address climate change.
Further, the Montana legislature repealed the state policies promoting fossil fuel extraction just two months before the trial began, and a judge cannot generally rule on the constitutionality of a repealed law. So, whether state policies promoting fossil fuel extraction violate the people’s constitutional right to a clean and healthful environment is a question for another day and another case.
A spokeswoman for Montana’s attorney general said the state plans to appeal Seeley’s ruling.
Impact on federal climate litigation
It is unclear how the Montana youths’ victory will influence federal climate litigation. The federal youth climate case Juliana v. United States, which was recently revived, relies on the Fifth and Ninth amendments to the U.S. Constitution, as well as the common law public trust doctrine. Neither the Fifth Amendment nor the Ninth Amendment is considered environmental rights akin to a green amendment. However, the public trust doctrine has been relevant in some states’ green amendment jurisprudence.
In the states that have green amendments, climate advocates will certainly rely on the Montana youth case as they challenge state laws that promote climate change.
In recent years, we have witnessed an erosion of our environmental laws through politics and the courts. That has fueled new legal claims of environmental rights in the U.S., Canada and other countries.
This phenomenon is the focus of my research, of which green amendments are just a part. I believe we will continue to see cases, like Held v. State of Montana, invoke rights-based approaches to tackle environmental problems in the future.
This article is republished from The Conversation, an independent nonprofit news site dedicated to sharing ideas from academic experts. If you found it interesting, you could subscribe to our weekly newsletter.
It was written by: Amber Polk, Florida International University.
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