The following article was published in the November 2024 issue of the International Review of Contemporary Law, the journal of the IADL, focusing on climate and social justice.
Montana’s Landmark Youth Climate Crisis Decision Could Set a Powerful Precedent
by Marjorie Cohn
Although a number of climate change lawsuits have been filed in the United States and elsewhere, a district court judge in Montana ruled in favor of youth plaintiffs in a landmark decision that could have vast ramifications for other climate lawsuits. This case was the first such action to go to trial and uphold the rights of youth, who are most at risk from the climate crisis.
On August 14, 2023, a group of young people scored a powerful victory in Montana when a district court judge ruled that the state’s failure to consider the effects of climate change before its officials approve fossil fuel projects was unconstitutional. Held v. Montana[1] was the first such climate change case to go to trial and will likely have global implications. “Plaintiffs have a fundamental constitutional right to a clean and healthful environment, which includes climate as part of the environmental life-support system,” Judge Kathy Seeley in the First Judicial District Court of Montana wrote in her landmark decision.
“There is overwhelming scientific consensus that Earth is warming as a direct result of human GHG [greenhouse gas] emissions, primarily from the burning of fossil fuels,” Judge Seeley found, adding that “carbon dioxide (CO2) is the GHG most responsible for trapping excess heat within Earth’s atmosphere.” Judge Seeley noted, “Science is unequivocal that dangerous impacts to the climate are occurring due to human activities, primarily from the extraction and burning of fossil fuels.”
“Montana is a major emitter of GHG emissions in the world in absolute terms, in per person terms, and historically,” Judge Seeley wrote, adding that Montana’s emissions “have been proven to be a substantial factor” affecting the climate.
When one considers the amount of fossil fuels the state extracts, burns, processes and exports, Montana produces as much carbon dioxide as Pakistan, Argentina or the Netherlands, the judge found.
After Judge Seeley’s ruling, Montana must consider climate change when its officials decide whether to approve or renew fossil fuel projects.
In 2020, 16 youths who were then ages 2 to 18 filed a complaint against the State of Montana, its governor and other state officials. They are now between 5 and 22 years old. The Youth Plaintiffs claimed that they have been and will continue to be harmed by the dangerous effects of fossil fuels and the climate crisis. Judge Seeley concluded that children and youth “are disproportionately harmed by fossil fuel pollution and climate impacts.” She found that children are “uniquely vulnerable” to the effects of climate change, “which harms their physical and psychological health and safety, interferes with family and cultural foundations and integrity, and causes economic deprivations.”
Ten expert witnesses, including a Nobel Peace Prize winner, testified for the Youth Plaintiffs at trial, which ran from June 12 to June 20. Judge Seeley found all of the plaintiffs’ expert witnesses to be “informative and credible.” The defense presented only one expert witness economist. He called himself the founder of “free-market environmentalism” and minimized Montana’s responsibility for global emissions. The judge found his testimony was “not well-supported, contained errors, and was not given weight by the Court.”
Twelve of the 16 Youth Plaintiffs also testified. They said they were “fearful” and had suffered “significant distress,” “a sense of loss” and “despair” as a result of increasing wildfire smoke and melting glaciers. For the indigenous youth, climate change harmed their ability to participate in cultural practices and access food sources. Some testified that they were forced to consider foregoing a family due to fears about the world their children would grow up in.
This Decision Will Reverberate Around the World
“As fires rage in the West, fueled by fossil fuel pollution, [this] ruling in Montana is a game-changer that marks a turning point in this generation’s efforts to save the planet from the devastating effects of human-caused climate chaos,” said[2] Julia Olson, the founder of Our Children’s Trust, a legal nonprofit that filed the lawsuit on behalf of the Youth Plaintiffs. “This is a huge win for Montana, for youth, for democracy, and for our climate. More rulings like this will certainly come.”
Likewise, Michael Burger, executive director of the Sabin Center for Climate Change Litigation at Columbia University, declared[3] that Held v. Montana would reverberate throughout the country. “This was climate science on trial, and what the court has found as a matter of fact is that the science is right,” Burger said. “Emissions contribute to climate change, climate harms are real, people can experience climate harms individually, and every ton of greenhouse gas emissions matters. These are important factual findings, and other courts in the U.S. and around the world will look to this decision.”
Montana, which has the nation’s largest coal reserves, has warmed more than most of the contiguous states in the U.S. because northern latitudes heat faster. Due to the warming climate, Montana’s snowpack has been decreasing and will likely continue to decrease as temperatures rise. Wildfires impact ecosystems, property and livelihoods; they are expected to get significantly worse unless immediate steps are taken to limit global warming.
The average temperatures in Montana have increased nearly 2.5 degrees since the beginning of the 20th century, more than twice the global average.
Montana is one of three states in the U.S. that protect the right to a healthy environment in its state constitution. Pennsylvania and New York have similar constitutional provisions and at least nine other states[4] are considering enacting legislation.
The Montana Constitution Enshrines “the Right to a Clean and Healthful Environment”
Article II, Section 3 of the Montana Constitution[5] states, “All persons are born free and have certain inalienable rights. They include the right to a clean and healthful environment . . .” Article IX, Section 1 (1) says, “The state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations.”
Article IX, Section 1(3) of Montana’s Constitution requires the legislature to provide “adequate remedies for the protection of the environmental life-support system from degradation.”
Moreover, Article IX, Section 3(3) says, “All surface, underground, flood, and atmospheric waters within the boundaries of the state are the property of the state for the use of its people and are subject to appropriation for beneficial uses as provided by law.” The Montana Supreme Court has said that this provision underpins the “Public Trust Doctrine” for water rights, including atmospheric waters, under the Montana Constitution. Public Trust Resources in Montana also include public lands, wetlands, fish and wildlife, submerged lands and water banks up to the high-water mark. Montana has never denied a permit[6] sought by a fossil fuel company.
The Public Trust Doctrine requires the state officials “to maintain control, protect, preserve, and prevent substantial impairment to and waste of Public Trust Resources for the benefit of all Montanans, including Youth Plaintiffs and future generations of Montanans,” the plaintiffs’ complaint states.
Montana’s Supreme Court has held[7] that any statute or rule that implicates the constitutional right to a clean and healthful environment must be strictly scrutinized and can only survive if the State establishes a “compelling state interest” and its action is “closely tailored” to achieve that interest and is the “least onerous path” available to accomplish that objective.
The Montana State Energy Policy (MEPA) specifically promoted the use of fossil fuels. The exception to MEPA says that “an environmental review . . . may not include a review of actual or potential impacts beyond Montana’s borders. It may not include actual or potential impacts that are regional, national, or global in nature.” This meant that the State of Montana was forbidden from considering the impacts of climate change in its environmental reviews.
On March 16, 2023, the Republican-led Montana state legislature, in an attempt to get the Youth Plaintiffs’ lawsuit thrown out, repealed the State Energy Policy. The defendants then argued that the case was moot. On May 23, Judge Seeley dismissed the Youth Plaintiffs’ claims under the State Energy Policy.
But Judge Seeley denied the defendants’ pre-trial motion to dismiss the MEPA claims, writing that “there appears to be a reasonably close causal relationship between the State’s permitting of fossil fuel activities under MEPA, GHG emissions, climate change, and Plaintiffs’ alleged injuries.” Seeley found that Montana has the authority to regulate greenhouse gas emissions and their impacts on climate by regulating the state’s fossil fuel activities. The judge wrote that although Montana may not have the power to regulate out-of-state actions that burn Montana coal, it could consider the effects of coal burning before permitting a new coal mine. “This Court cannot force the State to conduct that analysis, but it can strike down a statute prohibiting it,” Judge Seeley said.
After trial, Judge Seeley held that Montana’s State Energy Policy and the climate change exception to the Montana Environmental Policy Act (MEPA) violate the Montana Constitution.
“Montanans’ right to a clean and healthful environment is complemented by an affirmative duty upon their government to take active steps to realize this right,” Judge Seeley wrote.
In a 2021 global study[8] on climate anxiety among young people ages 16 to 25, more than half of the respondents said they felt that humanity is doomed, and four out of every ten respondents reported[9] that they are concerned about having children of their own.
“The current barriers to implementing renewable energy systems are not technical or economic, but social and political,” Judge Seeley wrote. “Such barriers primarily result from government policies that slow down and inhibit the transition to renewables, and laws that allow utilization of fossil fuel development and preclude a faster transition to a clean, renewable energy system.” She concluded that solar, wind and water are the “cheapest and most efficient forms of energy.”
Montana’s Republican attorney general has appealed Judge Seeley’s decision and the case won’t finally be resolved for several months, if not years.
Other Pending Climate Litigation
Held v. Montana could affect the pending U.S. federal climate litigation that was filed by 21 youth plaintiffs. Juliana v. United States,[10] an Oregon case that relies on the Fifth and Ninth Amendments to the U.S. Constitution and the common law public trust doctrine, was recently revived after eight years of legal challenges.
Another U.S. state climate case, which is pending in Hawai’i, is Navahine F. v. Hawai’i Department of Transportation. [11] Filed by 21 youth plaintiffs, the case is scheduled for trial in summer of 2024.
Agostinho and Others v. Portugal and 32 Other States.[12] One month after the decision in Held v. Montana, six Portuguese youths filed a climate case in the European Court of Human Rights. In September 2023, the court heard arguments that E.U. member states, as well as Russia, the UK, Switzerland, Norway and Turkey, violated their human rights by failing to effectively address climate change. The plaintiffs’ claims rely on Articles 2 (right to life), 4 (right to privacy) and 14 (right not to experience discrimination) of the European Convention on Human Rights.
Litigation, while important, is not a panacea to solve the climate crisis. “It will take an extended commitment to community organizing for Held to become a vital constitutional protection for nature. Time is short,” Terry Lodge, attorney for Community Environmental Legal Defense Fund, which advocates and litigates rights-of-nature initiatives, told me. “The courts are not going to save us from climate catastrophe any more than the political branches are. They can expose the facts about our perilous situation, but the people are going to have to translate those realities into organized political change and not depend on silver bullet litigation for a real solution.”
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, and the founding dean of the People´s Academy of International Law. She is a member of the national advisory boards of Assange Defense and Veterans for Peace, a member of the Bureau of the International Association of Democratic Lawyers and the U.S. representative to the continental advisory council of the American Association of Jurists. Her books include “Drones and Targeted Killing: Legal, Moral and Geopolitical Issues.”
[1]Held v. Montana, https://climatecasechart.com/wp-content/uploads/case-documents/2023/20230814_docket-CDV-2020-307_order.pdf.
[2]David Gelles and Mike Baker, “Judge Rules in Favor of Montana Youths in a Landmark Climate Case,” New York Times, Aug 16, 2023, https://www.nytimes.com/2023/08/14/us/montana-youth-climate-ruling.html.
[3]Id.
[4]National Caucus of Environmental Legislators, Green Amendments in 2023: States Continue Efforts to Make a Healthy Environment a Legal Right, March 27, 2023, https://www.ncelenviro.org/articles/green-amendments-in-2023-states-continue-efforts-to-make-a-healthy-environment-a-legal-right/#:~:text=Currently%2C%20three%20states%20%E2%80%93%20Montana%2C,are%20considering%20bills%20in%202023.
[5]https://courts.mt.gov/external/library/docs/72constit.pdf.
[6]Cassidy Randall, Sixteen Kids Are Fighting the Climate Crisis in Court: This summer, the first youth-led climate case will make it to trial. And it could change everything, Rolling Stone, April 27, 2023, https://www.rollingstone.com/politics/politics-features/youth-led-climate-trial-montana-1234709085/.
[7]Montana Environmental Information Center v. Department of Environmental Quality, 296 Mont. 207 (Mont. 1999).
[8]Caroline Hickman, Elizabeth Marks, Panu Pihkala, Susan Clayton, R. Eric Lewandowski, Elouise Mayall et al., “Climate anxiety in children and young people and their beliefs about government responses to climate change: a global survey,” The Lancet, Dec. 2021, https://www.thelancet.com/journals/lanplh/article/PIIS2542-5196(21)00278-3/fulltext.
[9]Fiona Harvey, “Four in 10 young people fear having children due to climate crisis,” The Guardian, Sep. 14, 2021, https://www.theguardian.com/environment/2021/sep/14/four-in-10-young-people-fear-having-children-due-to-climate-crisis.
[10]https://www.ourchildrenstrust.org/juliana-v-us.
[11]https://climatecasechart.com/case/navahine-f-v-hawaii-department-of-transportation/#:~:text=Fourteen%20young%20people%20filed%20a,a%20clean%20and%20healthful%20environment.
[12]https://climatecasechart.com/non-us-case/youth-for-climate-justice-v-austria-et-al/.
All articles published in the International Review of Contemporary Law reflect only the position of their author and not the position of the journal, nor of the International Association of Democratic Lawyers.