Youth climate activists’ landmark legal victory against the state of Montana last week could set the stage for wider recognition of rights to protection from climate change, with litigants potentially challenging state permitting for fossil fuel projects directly.
The decision, Held v. Montana, came in the wake of a state rule that would have barred Montana agencies from factoring greenhouse gas emissions into the permitting process for large energy projects. Youth plaintiffs successfully argued this rule violated their rights under the state constitution to a “clean and healthful environment.”
Six other states — New York, Hawaii, Illinois, Massachusetts, Pennsylvania, and Rhode Island — guarantee environmental protections in their constitutions in some form, and the Held decision will likely “add force” to future litigation that aims to enforce those rights, said Michael Gerrard, founder and faculty director of Columbia University’s Sabin Center for Climate Change Law.
The case was the first in the U.S. to hinge on one of these state constitutional climate provisions. And not only that, Gerrard noted: “Climate scientists were on the stand under oath” and cross-examined, he said, “affirming scientific findings [and] making it even harder to contest those scientific findings in the future.”
Indeed, in the ruling, Judge Kathy Seeley of the 1st District Court in Montana wrote that “the science is unequivocal that dangerous impacts to the climate are occurring due to human activities, primarily from the extraction and burning of fossil fuels.”
As a practical matter, the Held decision does not directly establish what’s known as binding precedent in other states, said John Dernbach, former director of the Environmental Law and Sustainability Center at Widener University. In other words, the decision doesn’t bind courts beyond Montana, but it adds momentum to other climate litigation and provides an adaptable playbook for their efforts.
“There are suits we’re going to see going forward against fossil fuel companies [and] this might make those more viable,” said David Driesen, a professor at Syracuse University’s College of Law with a focus on environmental law. “It’s not direct precedent, but it suggests the courts should go ahead and apply normal legal principles to climate change.”
Because the other states are not attempting to suppress analysis of environmental impact in the same way as Montana, litigation there will have to approach the matter with a different cause of action, Driesen noted.
In future litigation, “I would expect to see something broader, which is states where plaintiffs will seek broader relief, they’ll ask for actions protecting us from climate change [such as] denial of permits,” he said.
The courtroom strategy deployed in the Montana case could be a model for future litigation as well, said Gerrard, who noted the proceedings featured testimony from local experts and the youth plaintiffs themselves.
“That put a human face on this global problem,” he said.
Montana Attorney General Austin Knudsen (R) already announced his intention to appeal the decision to the state supreme court, but beyond that, his options are limited, as are those of opponents at the federal level, said Driesen.
“There will be an effort by people who lose these sorts of cases to get the federal government involved, to get the Supreme Court involved in particular, but I don’t think it’ll be successful,” he told The Hill. “The Supreme Court has become pretty wild and unpredictable, but it’s really a state law question that the federal government has no business acting on.”
Proponents said they expect the win to provide a major boost in momentum for litigants, and potential litigants, in other states.
In Hawaii, for instance, Gerrard said he thinks a pending trial concerning the state’s transportation policy, which cites a climate provision in the state’s constitution, “will be aided by this decision.”
“This is a huge win for climate litigation and the youth-led climate movement. We’ve been hearing from young people and organizations all over the world how this decision is inspiring them to renew their efforts to hold their government accountable for its role in climate change,” Mat dos Santos, general counsel and managing attorney with Our Children’s Trust, which represented the plaintiffs in Montana, told The Hill in an email.
The result is also likely to energize efforts to secure comparable amendments in other states’ constitutions, Gerrard said. Nine more states had proposed environmental protection amendments in 2023, according to the National Caucus of Environmental Legislators.
“States with these kinds of provisions — like Hawai’i — haven’t been protecting young people’s constitutional rights because they’re failing to protect the right that lays the foundation for all other rights,” dos Santos told The Hill. “To protect the right to life, you have to have a livable climate. It’s just that simple.”
Source : The Hill