Since the adoption of the Paris Agreement in 2015, people around the world have been deploying human rights arguments in the hope of persuading courts to compel governments to step up action to address climate change. Federal and state courts in the United States have been more reluctant than courts elsewhere to act as agents of change and hear these claims, often raising concerns about plaintiff standing, causation, separation of powers and their own ability to provide comprehensive redress.
For instance, while courts in countries ranging from Pakistan, to Colombia and the Netherlands have ordered governments to take further climate mitigation measures, the Ninth Circuit Court of Appeals, in Juliana v. United States, denied youth plaintiffs standing on the basis that their alleged injuries as a result of climate change could not be fully redressed by a court order. It did so without displacing the lower court’s finding that a right to a “climate system capable of sustaining human life” exists within the due process right to life in the Fifth Amendment to the United States (US) Constitution and requires the federal government to take climate mitigation measures.
The recent decision, in Held v. Montana, No. CDV-2020-307 (1st Dist. Ct. Mont., Aug. 14, 2023), by a Montana state trial court breaks with the past in the United States and gives the youth-led US climate litigation movement its first significant victory. Relying on the express right to a healthy environment enshrined in the Montana Constitution, a group of young plaintiffs persuaded the court that they had standing to sue and that the court should strike down two state laws that prevented courts and agencies from considering the climate impacts of proposed fossil fuel projects.
While the case involves an unusually obstructive set of state laws under a state-specific constitutional provision, it is a victory that could encourage similar actions elsewhere and provide lessons for plaintiffs about the legal strategies they might deploy to address standing requirements and other challenges in complex climate litigation.
The lawsuit, filed in 2020, by sixteen young people (the “Plaintiffs”), challenged a provision of the Montana Environmental Policy Act (“MEPA”), that forbids state agencies from considering the impacts of greenhouse gas (“GHG”) emissions or climate change during environmental impact assessments (the “MEPA Limitation”).
Plaintiffs brought their challenge primarily under a provision of the Montana Constitution that was enacted in 1972 and protects “the right to a clean and healthful environment.” Such a right is found only in a handful of other US state constitutions and is not expressly included in the US federal Constitution. By contrast, some formulation of the right to a healthy environment is recognised by 155 other sovereign States through their constitutional or legislative frameworks, or membership in a regional treaty that protects the right.
After plaintiffs filed their complaint, the Montana legislature passed Senate Bill 557, which amended the MEPA and barred courts from vacating, voiding, or delaying permits or authorisations for proposed projects for reasons related to climate change.
The Court’s findings of fact
The Montana trial court’s decision relies on an extensive scientific record, which was uncontested by the state. It affirms that “[t]here is overwhelming scientific consensus that Earth is warming as a direct result of human GHG emissions, primarily from the burning of fossil fuels” and accepts that climate change is affecting the state of Montana generally, children in particular and the plaintiffs specifically.
A section of the decision focuses on the ways in which “climate change is already harming plaintiffs” through changes to the local environment, such as shrinking glaciers, reduced river flows, drought, wildfires and reduced biodiversity. According to the court, these changes affect the plaintiffs’ traditional ways of family life, as well as their physical and mental health. 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.”
Another section of the decision recounts how the state’s actions “contribute to climate change and harm plaintiffs” by authorising projects that lead to the extraction, transportation and consumption (including by people outside of Montana) of fossil fuels that produce carbon dioxide (“CO2”) emissions in “globally significant quantities”. The court accepted expert testimony indicating that, in 2019, as a result of its coal mines and oil and gas drilling, production and refineries, Montana was responsible for 166 million tons of carbon dioxide emissions, exceeding the emissions of many large countries. The court then noted that “Montana’s land contains a significant quantity of fossil fuels yet to be extracted” and the state “continue[s] to approve permits and licenses for new fossil fuel activities.” It concluded that “what happens in Montana has a real impact on fossil fuel energy systems, carbon dioxide emissions, and global warming”.
The Court’s Legal Analysis: Standing and Strict Scrutiny
Crucially, the court held that plaintiffs had standing to bring their claims. To have standing under Montana law, plaintiffs must prove that they have an injury, that the injury was caused by the defendants and that their injury can be redressed by the courts. The court first held that plaintiffs had proven ongoing injuries “to their physical and mental health, homes and property, recreational, spiritual, and aesthetic interests, tribal and cultural traditions, economic security, and happiness” – all stemming from the effects of climate change on Montana’s environment. Second, the court found that these injuries were traceable to the defendant state’s “disregard of GHG emissions and climate change, pursuant to the MEPA Limitation”. According to the court, “Montana’s GHG contributions are not de minimis but are nationally and globally significant” and “cause and contribute to climate change and the Plaintiffs’ injuries.” Third, the court found that an order declaring the MEPA Limitation unconstitutional would “provide partial redress of Plaintiffs’ injuries” because it would allow the State and its agents to “consider GHG emissions and climate impacts and reject projects that would lead to unreasonable degradation of Montana’s environment.”
The court then held that both the MEPA Limitation and Senate Bill 557 were unconstitutional. The court found that the right to a “clean and healthful environment”, includes “climate as part of the environmental life-support system” and imposes an affirmative duty upon the government “to take active steps to realize this right”.It also cited Montana caselaw holding that, because the constitutional right to a healthy environment features in Montana’s Bill of Rights as the first of only a handful of inalienable rights, it is a “fundamental right”. That means, first, that it is “self-executing” (i.e., it does not require additional laws to carry it out) and, second, that any government measure infringing it merits “strict-scrutiny” (i.e., a much higher level of scrutiny than other constitutional protections). Because it is self-executing, individuals and NGOs may bring suits directly to enforce it. 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.
Applying the strict scrutiny standard of review, the court held that the state had not offered a compelling government interest that would justify infringing upon the fundamental right to a healthy environment, and no argument that the MEPA Limitation was sufficiently tailored to serve that interest. It also ruled that the MEP Limitation and the Senate Bill were “facially unconstitutional,” i.e., unconstitutional as written. It found that the Senate Bill violates a separate provision of the Montana Constitution, one that obliges the legislature to provide “adequate remedies for the protection of the environmental life support system from degradation.” Specifically, it found that the Senate Bill violated plaintiffs’ right to “preventative, equitable relief” and was also unconstitutional because it “fails to further a compelling state interest.”
Implications for Future Climate Litigation
Held v. Montana is a landmark decision, given that it is the first ruling in the United States recognising that climate change interferes with the enjoyment of human rights and it offers some important lessons for future climate litigation. First, the decision offers a model for litigants seeking to overcome standing hurdles in the US and elsewhere. The court’s findings of fact identified a chain of causation between the MEPA Limitation, the state’s authorisation of fossil fuel projects and the plaintiff’s injuries – both past and future. The court found that, by invalidating the MEPA Limitation, it could at least partially redress the plaintiffs’ claims and break the chain of causation. It reasoned that, without the MEPA Limitation, the state would perform more realistic environmental impact assessments and approve fewer GHG-emitting projects.
Second, the decision illustrates the strategic value to plaintiffs of seeking a remedy that the chosen court clearly has the power to grant. The plaintiffs’ relatively modest request in Held – that the court strike down two offending laws – can be contrasted with plaintiffs’ original claim in Juliana, which challenged all federal actions that “permit, authorize, and subsidize” fossil fuel use and sought an injunction requiring the government to craft a “comprehensive scheme to decrease fossil fuel emissions and combat climate change.” The Montana court was confident that it had the power to strike down the offending laws, thereby allowing Montana’s courts and agencies to consider GHG emissions, without running the risk of making any difficult policy choices.
In terms of next steps, the court’s decision in Held bars Montana from enforcing the two challenged laws, although the Montana Attorney General’s Office has been quoted as saying that the state will appeal.
In other developments, more than three years after the Ninth Circuit held that the Juliana plaintiffs lacked standing, the federal district court for the District of Oregon recently granted their motion to amend their complaint to cure “a narrow deficiency” with their pleadings on redressability. The court referred to a 2021 US Supreme Court decision, Uzuegbunam v. Preczewsk, which held that judicial ability to “to effectuate a partial remedy” (like that in Held v. Montana) satisfies the redressability requirement for standing.
The plaintiffs in Juliana have now amended their complaint to request only declaratory relief and omit their earlier request for an order requiring the federal government to develop and implement a remedial plan. The district court indicated that such a position on standing would not be futile, as “a declaration that federal defendants’ energy policies violate plaintiffs’ constitutional rights would itself be significant relief” and was “squarely within the constitutional and statutory power of Article III courts to grant.” The plaintiffs’ motion to set a pretrial conference is pending.