This article, written by attorney Nicole Austin, was originally published by the NH Bar News and can be found here (pg 29).
On August 14, 2023, a Montana state court judge issued a landmark ruling in climate change litigation, driven by the plaintiffs’ fundamental “right to a clean and healthful environment” under the Montana Constitution “for present and future generations.” Mont. Const., art. II, § 3; art. IX § 1. The Montana Supreme Court had previously held this right to be a fundamental one, but the Held case was the first time the right was evaluated in the context of climate change. The resulting order is a remarkable step forward for environmental protection advocates.
The plaintiffs in this class action suit were a group of 16 young Montanans, between the ages of two and 18 when the case began in 2020. They sued the State of Montana, the Governor, and four state agencies for violations of the above constitutional rights stemming from the practice of permitting energy projects like coal and natural gas. The plaintiffs challenged a provision of the Montana Environmental Policy Act (MEPA), known as the MEPA Limitation, forbidding state agencies from considering the impacts, in-state and/or out-of-state, of greenhouse gas (GHG) emissions or climate change in their environmental reviews. SB 557, signed into law only earlier this year, curtailed challenges brought against agencies’ adherence to the MEPA Limitation. Among other things, SB 577 limited who could bring a challenge, required challengers to pay a fee, and prescribed that even a successful challenge could not vacate, void, or delay a lease, permit, license, or other entitlement/authority issued under the MEPA Limitation. These laws could not withstand strict scrutiny review and are facially unconstitutional under Montana’s State Constitution.
Judge Kathy Seeley of the Montana First Judicial District Court of Lewis and Clark County declared as such in a 103-page order and after a monumental trial. The court heard testimony from 27 witnesses, all but three of whom were called by the plaintiffs, and admitted 172 exhibits, all but four of which were offered by the plaintiffs.
A significant portion of the order is devoted to robust findings of fact about the science of climate change. Judge Seeley’s comprehensive and accessibly written order is in a class of its own and will provide attorneys and other judges with ample reference material in cases to come. The order also makes groundbreaking findings of fact about the concrete impact that climate change has on individuals, particularly children. The court concluded that “climate change is already harming plaintiffs” and 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.” The court’s findings were critical in establishing the plaintiffs’ standing to sue, a common issue in environmental protection litigation, though potentially less so in the future with citations to Judge Seeley’s order.
The connection between climate change and the defendants’ actions (or inactions in even considering climate implications in their permitting processes) was the focus of the parties’ dispute. These issues of traceability, causation, and redressability are other common sticking points for similar classes of plaintiffs, but not here. The court strongly and clearly disagreed with the defendants’ position that the plaintiffs could not demonstrate how the defendants’ actions in Montana, pursuant to the MEPA Limitation, quantifiably contributed to climate change and the plaintiffs’ harm. It found that “Montana’s GHG emissions are not de minimis but are nationally and globally significant,” explaining that, in 2019, Montana was responsible for 166 million tons of carbon dioxide emissions, exceeding that of many large countries. The court found that the relationship between permitted activities and resulting environmental harms is reasonably close and found that the State’s practice of authorizing fossil fuel activities without analyzing GHGs or climate impacts results in GHG emissions in Montana and elsewhere, which in turn exacerbates climate change in “an already destabilized climate system.”
Further, the court found that the defendants “can alleviate the harmful environmental effects of Montana’s fossil fuel activities through the lawful exercise of their authority if they are allowed to consider GHG emissions and climate change” during the permitting process, which in light of the fact that Montana’s land “contains a significant quantity of fossil fuels yet to be extracted,” would provide partial redress to the plaintiffs’ injuries by being able to “reject projects that would lead to unreasonable degradation of Montana’s environment.” While this reasoning is of course specific to Montana, it provides a compelling framework for future cases to establish the required, and previously often abstract, link between a specific defendant’s actions and the global phenomenon of climate change.
The holding is narrow but it is one that is nonetheless making headlines as ushering in a shift into a new era of climate change litigation. The language of the Montana Constitution that was critical to this plaintiffs’ win is currently uncommon but may not be for very long, particularly if momentum builds as is expected after Judge Seeley’s order. At least fifteen other states are witnessing campaigns for so-called “green amendments,” and there are already several state constitutions, such as those in Massachusetts, Hawaii, Illinois, Rhode Island, and Alaska that contain environmental protections outside of their respective bills of rights. Pennsylvania and, fairly recently, New York have enshrined environmental protections in the Bill of Rights of their state constitutions similar to those in Montana. Pa. Const. art. 1, § 27 (“The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic, and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the commonwealth shall conserve and maintain them for the benefit of all the people.”); N.Y. Const. art. 1, § 19 (“Each person shall have a right to clean air and water, and a healthful environment.”). Florida, Hawaii, Utah, and Virginia are all states to watch as Our Children’s Trust, the not-for-profit law firm that represented the Held class of plaintiffs, has cases pending in each on behalf of classes of young plaintiffs. For now at least, we haven’t seen similar headlines in the Granite State.