Young people across the United States have been asking courts to compel actions to address climate change. In the past, many federal and state courts have been reluctant to interfere in complex policy decisions that often raise concerns about causation, plaintiff standing, separation of powers, and the lack of clear legal authority.[1] In Juliana v. United States, for example, the Ninth Circuit denied plaintiffs standing on the basis that their alleged injuries could not be redressed by a court order.[2]
But in Held v. Montana, recently decided by a Montana state trial court, the youth-led US climate litigation movement has its first big win.[3] Relying on an environmental right in the Montana constitution, a group of young plaintiffs persuaded the court to strike down two state laws that prevented courts and agencies from considering the climate impacts of proposed projects. While this case involves a narrow holding under a state-specific constitutional provision, it is a win that could encourage similar actions.
Background
In 2020, 16 young people, then between two and 18 years old, filed a lawsuit challenging a provision under the Montana Environmental Policy Act (MEPA).[4] In particular, they challenged a provision known as the “MEPA Limitation,” which forbids state agencies from considering the impacts of greenhouse gas (GHG) emissions or climate change in their environmental reviews.[5] For example, rather than conducting a cost-benefit analysis that considered the value provided by a coal mine as well as the harms of its GHG emissions, regulators could only consider local public health and environmental effects as costs.
Plaintiffs brought their challenge under a provision of the Montana Constitution, which protects “the right to a clean and healthful environment.”[6] Such a right is found only in a handful of other state constitutions.[7] Since it was enacted in 1972, the right has developed jurisprudential history, and in 1999 the Montana Supreme Court held that the right is a “fundamental right.” This means that individuals and NGOs can bring suits directly challenging state laws that allegedly violate this right. It also means that when there is a law, rule, or policy abridging that right, courts will review those laws with deep skepticism, using a standard of review called “strict scrutiny.” Under strict scrutiny, the government must show it has a compelling interest in the law, and the law is “narrowly tailored” to effectuate that interest – in other words, that the law is written as precisely as possible to avoid infringing upon the protected right.[8] The right, however, had never been applied in the context of climate change.
After plaintiffs filed their complaint, the Montana legislature passed SB 557, which amended MEPA and specifically barred courts from being able to “vacate, void, or delay” permits or authorizations for proposed projects for reasons related to climate change.[9] The State relied on this provision, Mont. Code Ann. § 75-1-201(6)(1)(ii) (hereinafter referred to as “the 2023 Amendment”), at trial to argue that the case should be dismissed.[10]
The Decision
The district court’s decision in relies on an extensive scientific record presented at trial, which was uncontested by the state. The court affirms the reality of global warming caused by “anthropogenic changes in the environment, not natural variability,”[11]and reviews how climate change is currently affecting the state of Montana generally, and each plaintiff in particular. The court then documents the State’s contributions to global GHG emissions.
The court notes that children are particularly affected by climate change not just because they will live longer into a warmer future, but also because “climate change is already harming plaintiffs”[12] through changes to the local environment, as well as physical and mental health harms.[13] The court catalogues the specific injuries suffered by each of the plaintiffs, including harms related to shrinking glaciers, reduced river flows, drought, wildfires, and reduced biodiversity.[14] The court concludes that “because of their unique vulnerabilities, their stages of development as youth, and their average longevity on the planet in the future, Plaintiffs face lifelong hardships resulting from climate change.”[15]
The court also reviewed Montana’s contributions to global GHG emissions. While the court accepted evidence offered by the plaintiff expert witness, it rejected testimony from the State’s expert economist, stating his accounting of Montana’s historic and future projected GHG emissions was [16] Accounting for fossil fuel extraction, processing, transportation, and consumption (including by people outside of Montana), the court concluded that in 2019 Montana was responsible for 166 million tons of carbon dioxide emissions, exceeding the emissions of many large countries.[17] The court then noted that “Montana’s land contains a significant quantity of fossil fuels yet to be extracted,”[18] and concluded that “what happens in Montana has a real impact on fossil fuel energy systems, carbon dioxide emissions, and global warming”.[19]
The Court’s Analysis: Standing and Strict Scrutiny
Before ruling that both the MEPA Limitation and the 2023 Amendment are unconstitutional, the court established plaintiffs had standing to bring their claim before the court. Specifically, the court held that plaintiffs had demonstrated injury (emphasizing effects on plaintiffs’ mental health), traceable to the defendant, which could be redressed by the court.[20] Furthermore, found that the MEPA Limitation would contribute to plaintiffs’ injuries because it “prevents the availability of vital information” thus “caus[ing] the State to ignore renewable energy alternatives.”[21] The court also found that Montana’s contributions to climate change were “not de minimis but are naturally and globally significant,” and thus “cause and contribute to climate change and Plaintiffs’ injuries, and reduce the opportunity to alleviate Plaintiffs injuries.”[22] Finally, the court found that because Montana still has significant coal reserves, and the consideration of climate impacts in permitting decisions regarding fossil fuel extraction could reduce the likelihood of future approvals, invalidating the MEPA Limitation would redress plaintiffs’ ongoing injuries.[23]
The court then held that because the MEPA Limitation affected plaintiffs’ fundamental right to a “clean and healthful environment,” the proper standard of review was strict scrutiny analysis. The court found that the right to a “clean and healthful environment” extended to the climate,[24] and that the state owed an affirmative duty “to take active steps to realize this right”.[25] Applying strict scrutiny, the court explained that the state had not offered a compelling government interest that would justify infringing upon that right, and no argument that the MEPA Limitation was sufficiently tailored to serve that interest.[26]
The court also ruled that the 2023 Amendment is “facially unconstitutional,” i.e., unconstitutional as written. Though SB 557 was passed after plaintiffs filed their initial complaint, the State relied on the provision in arguing the case should be dismissed, and both parties addressed the provision’s constitutionality during trial and later briefings.[27] Applying strict scrutiny, the court held that the 2023 Amendment violates Article IX, Sec. 1(3) of the Montana Constitution, which obligates the legislature to provide “adequate remedies for the protection of the environmental life support system from degradation.”[28] Specifically, the court found that the provision violates plaintiffs’ right to “preventative, equitable relief” and “fails to further a compelling state interest.”[29]
Montana has already announced that it will appeal.[30]
Implications for Future Litigation
Held v. Montana is a relatively narrow decision. It is based on a constitutional provision found only in a handful of states and concerns a law which not only prevents consideration of global GHG emissions from extraction projects, but all GHG emissions, including those which will impact people living within the state. The court’s order allows Montana’s decision-makers to consider the GHG emissions and climate impacts of proposed projects, but agencies will not be under any substantive obligation to withhold approvals.
Still, the decision offers some important lessons for future climate suits. First, it suggests that state constitutional law might provide a useful basis for future suits in those states that do have environmental rights provisions, and an already-established jurisprudence which allows for suits to be brought by individuals and NGOs under those provisions.[31]
Second, the decision offers a model for litigants seeking to overcome standing and causation hurdles – challenges that were difficult to overcome in previous climate litigation. The court’s findings of fact paint a clear causal pathway from the state’s authorization of fossil fuel projects to concrete injuries suffered by the plaintiffs. The injuries of each individual plaintiff derived from global fossil fuel emissions; the share of those emissions caused by Montanan fossil fuels was significant; and the MEPA Limitation made it more likely that Montana would continue to be a significant source of emissions, thus aggravating the plaintiffs’ injuries. This final step in the causal chain helped to show that the plaintiffs’ injuries (unlike those in Juliana) were redressable.[32] With the MEPA Limitation invalidated, the court reasoned the state would have better-quality information, and therefore would be less likely to approve GHG-emitting projects.
Third, the decision illustrates the value of targeted challenges to specific laws that seek a remedy squarely within a court’s remedial authority. The plaintiffs’ relatively narrow claim in Held can be contrasted with plaintiffs’ claim in Juliana, which challenged all federal actions that “permit, authorize, and subsidize”[33] fossil fuel use and sought an injunction requiring the government to craft a “comprehensive scheme to decrease fossil fuel emissions and combat climate change.”[34] While the narrowness of plaintiffs’ claim in Held means the decision has a more limited impact, it also made it more likely that a court could accept the claim and provide the requested remedy.
What Happens Next?
The court’s decision in Held bars the state from enforcing either law at issue. The Montana Attorney General’s Office has issued a statement criticizing the decision as “a week-long taxpayer publicity stunt,” maintaining that “our state has no impact on the global climate.”[35] However, a 2021 national survey found that a majority of Montanans are worried about climate change, and two-thirds of Montanans believed it will harm future generations.[36] The challenge for in-state climate activists will be to demonstrate that cutting back on fossil fuel projects benefits but the state itself. Decisions like the one issued in Held may give the climate justice movement more ammunition in making that case to state agencies, legislators, and the public at large.
[1] See e.g., state court decisions in Kanuk v. Alaska, 335 P.3d 1088 (2014) (finding that challenges to Alaska’s climate policies were nonjusticiable political questions, or alternatively did not present an actual controversy); Aji P. v. State, 480 P.3d 438 ¶¶ 56-62 (Wa. Ct. App. 2021) (finding a claim brought by several young people challenging Washington State’s climate policies to raise a nonjusticiable political question); Sagoonick v. State, 503 P.3d 777 (Alaska, 2022) (finding a challenge to Alaska’s natural resources policies to be a nonjusticiable political question).
[2] Juliana v. United States, 947 F.3d 1159 (9th Cir. 2020).
[3] Held v. Montana, No. CDV-2020-307 (1st Dist. Ct. Mont., Aug. 14, 2023). The decision can be found online at https://westernlaw.org/wp-content/uploads/2023/08/2023.08.14-Held-v.-Montana-victory-order.pdf.
[4] Compl. For Decl. and Inj. Relief (March 13, 2020) (available at https://climatecasechart.com/wp-content/uploads/case-documents/2020/20200313_docket-CDV-2020-307_complaint.pdf). The complaint also challenged the constitutionality of fossil fuel-based provisions in Montana’s State Energy Policy Act, Mont. Code. Ann. § 90-4-1001(c)-(g). However, the state legislature repealed this policy before the case reached trial, and the court dismissed this claim. Order on Defs.’ Mots. to Dismiss for Mootness and for Summ. J. (May 23, 2023) (available at https://climatecasechart.com/wp-content/uploads/case-documents/2023/20230523_docket-CDV-2020-307_order.pdf).
[5] Mont. Code Ann. § 75-1-201(2)(a) (enacted May 10, 2023), amended by H.R. 971, 2023 Leg., 68th Reg. Sess. (Mont. 2023) (HB 971).
[6] Mont. Const., art. II § 3.
[7] The others are New York (N.Y. Const., art I, § 19), Pennsylvania (Pa. Const. art. I, § 27), Illinois (Ill. Const. art. XI, § 2), Massachusetts (Mass. Const. art XLIX, amended by Mass. Const. art. XCVII), and Hawaii (Haw. Const. art. XI, § 9).
[8] See Mont. Env’t Info. Ctr. v. Dep’t of Env’t Quality, 1999 MT 248 ¶ 63, 296 Mont. 207, 988 P.2d 1236 (Mont. 1999).
[9] Mont. Code Ann. Sec 75-1-201(6)(a)(ii) (signed May 19, 2023), amended by Sen. 557, 2023 Leg., 68th Reg. Sess. (Mont. 2023) (SB 557). The law provided only narrow exceptions to this general rule.
[10] Held, supra note 3, at 64.
[11] Held, supra note 3, at 17-26.
[12] Id. at 46-64.
[13] Id. at 30.
[14] Id. at 35-46.
[15] Id. at 33.
[16] Id. at 66.
[17] Id. at 67, comparing emissions resulting from fuels extracted in Montana to those extracted in Brazil, Japan, Mexico, Spain, or the United Kingdom.
[18] Id. at 69.
[19] Id. at 70.
[20] Id. at 87.
[21] Id. at 75, 81.
[22] Id. at 88.
[23] Id. at 88-90.
[24] Id. at 102.
[25] Id. at 96.
[26] Id. at 97.
[27] Id. at 86.
[28] Mont. Const. Art. IX, Sec. 1(3).
[29] Id. at 102.
[30] Blair Miller, Judge sides with youth in Montana climate change trial, finds two laws unconstitutional, Daily Montanan, Aug. 14, 2023, https://dailymontanan.com/2023/08/14/judge-sides-with-youth-in-montana-climate-change-trial-finds-two-laws-unconstitutional/.
[31] In particular, Pennsylvania (see e.g. Pa. Env’t Def. Found. V. Commonwealth, A.3d 911 (Pa. 2017)) and Hawai’i (see e.g. In re Hawai’i Elec. Light Co., 152 Haw. 352 (Haw. 2023)).
[32] Juliana v. US, 947 F.3d 1159, 1165-73 (9th Cir.). The court found that injuries were not redressable. This was in large part because the remedy requested by the plaintiff – the creation of a “remedial plan” – would involve complex policy decisions with difficult trade-offs, and without clear manageable standards. The court “doubt[ed] that any such plan can be supervised or enforced by an Article III court. And, in the end, any plan is only as good as the court’s power to enforce it.” Juliana at 1173.
[33] Id.
[34] Id. at 1171.
[35] Miller, supra note 27.
[36] Jennifer Marlon et al., Yale Climate Opinion Maps 2021, Yale Program on Climate Communication (Feb. 23, 2022) https://climatecommunication.yale.edu/visualizations-data/ycom-us/.