Montana’s Climate Change Lawsuit May See Sequels Across America 

The Montana Supreme Court heard arguments this week in an appeal from the country’s first-ever constitutional climate trial, as the state attempts to undo last year’s win by youth plaintiffs who said Montana’s energy policies violated the state constitution.

State officials are asking the justices to reverse the trial court decision in Held v. Montana, which overturned a law banning state agencies from weighing the impact of climate change and greenhouse gas emissions in environmental reviews. In its August 2023 decision, the trial court held that the law violated the right to a clean and healthful environment under the state constitution.

The closely watched case has been heralded as a landmark for environmentalists and may serve as a prototype for similar climate change cases across the country. Already, environmental lawyers — some of whom are also working on the Montana case — have reached a landmark climate change settlement with the state of Hawaii on behalf of another group of youth plaintiffs who sued under the Hawaii Constitution.

“We will use the Montana case and the settlement agreement in Hawaii as models for other states,” said Phillip Gregory, of counsel with Our Children’s Trust, an Oregon-based public interest law firm that has played a leading role in developing the legal theories in both cases.

While any action the Montana Supreme Court takes will apply only within the state, a decision is likely to reverberate in other states. “One way or the other, the decision in Montana will have the potential to influence the way other judges and other courts treat their own cases,” said Michael Burger, a lawyer who has written about the Montana case and is executive director of Columbia University’s Sabin Center for Climate Change Law.

Issues at the Montana high court

At the heart of the Montana and Hawaii cases are so-called “green amendments” to the state constitutions, which explicitly guarantee citizens the right to a healthy environment. Five other states — Illinois, Massachusetts, New York, Pennsylvania, and Rhode Island — have adopted similar amendments, and several others are considering them.

In Montana, the state constitution says “the state and each person shall maintain and improve a clean and healthful environment . . . for present and future generations” and includes “a clean and healthful environment” among its list of inalienable rights. Attorneys for the youth plaintiffs say the state is ignoring this responsibility by refusing to investigate climate impacts when approving fossil-fuel projects.

The state, in its appeal, argues youth plaintiffs lacked standing to bring their case and that invalidating the law in question — a subsection of the Montana Environmental Policy Act — does nothing to redress the physical and mental health injuries the youths said they have suffered as a result of climate change.

The state also contends the trial court overstepped its constitutional authority and argues that if justices vote to uphold the decision, they will need to clear up potential separation of powers issues by ensuring that executive branch agencies retain the power “to determine if, when, and how to conduct analysis” for environmental reviews.

“The key directive from [the] judgment was the idea that it would influence the state’s conduct,” Mark Stermitz, a lawyer for the state, said during the oral arguments. “I’m not aware of any case where that standard is an appropriate one for a district court to rest their entire decision on — especially in a case of this magnitude.”

At least three of the seven justices appeared skeptical of the state’s arguments and homed in on a  procedural issue over whether the trial court should have dismissed the case because it did not challenge a specific permit for a fossil fuel project. Dale Schowengerdt, one of the state’s lawyers, argued the court was being asked “in the abstract” to address “what is required as far as greenhouse gas emissions analysis.”

“That’s not exactly right,” Chief Justice Mike McGrath interjected. “The court’s not being asked to determine what should be in a greenhouse gas emission. The only question before the court is whether or not the state agency is precluded from looking at greenhouse gas emissions.”

Lawyers for the youth plaintiffs argue that their clients “have more than met their burden” to prove standing and that the district court redressed their injuries by allowing state agencies to make “fully informed, constitutionally compliant permitting decisions, including [the] ability to condition or deny fossil fuel permits based on their harm to the environment and children’s health and safety.”

Roger Sullivan, arguing on behalf of the plaintiffs before the state high court, said the limitations imposed by the state are a “double-headed hydra that closes the eyes of Montana’s environmental agencies to the most serious environmental crisis Montana has ever experienced . . . [and] closes Montana’s courthouse doors to those seeking redress.”

A suit begets suits

Authored by Judge Kathy Seeley of Montana’s First Judicial Circuit, the trial court decision in Held delivered a clear symbolic victory for the youths who pursued the case. Each of the youths testified at trial, including named plaintiff Rikki Held, who delivered emotional testimony about the impact of flooding, drought, and other disasters on her family’s Montana ranch and motel.

“The legal arguments are important, but the social and emotional ramifications are just as significant,” said Melissa Hornbein, a senior attorney with the Western Environmental Law Center, one of the public interest firms working on the Montana case. “It’s an endorsement of those youth telling their stories with such courage and grace.”

Held’s impact on the state’s environmental review process appears more limited — at least at first glance. Seeley’s decision did not specifically compel state agencies to consider greenhouse gas emissions and climate change. Instead, she said the judgment “will influence the state’s conduct.”

Seeley and the Montana Supreme Court declined to stay the decision while justices considered the state’s appeal. In the months since the decision was issued, environmental groups have filed at least three lawsuits relying on Held to challenge Montana’s permitting and environmental review process. They argue the decision not only struck down the statute, but in practical terms, leaves the state with no option but to analyze emissions and climate impacts.

“Going forward, our view is that the state government will have to consider greenhouse gas emission pollution as a significant factor in permitting decisions,” said Our Children’s Trust’s Gregory. Hornbein added that a win at the state supreme court would “set us up for many future cases to define exactly what the state needs to do.”

Branch against branch

In their brief, state officials said any attempt to require climate analysis infringes on decisions “entrusted to the legislature and executive agencies.” The argument is emblematic of an ongoing struggle between the Montana judiciary and state legislature. Conservative legislators have accused the supreme court of judicial overreach and have set up investigative committees, ignored rulings, and attempted to curb the judiciary’s authority. “The Held case is a flashpoint for those issues,” Hornbein said.

In March, six former Montana Supreme Court justices took the unusual step of filing an amicus brief supporting the trial court’s decision and criticizing the state for its separation of powers stance. “In recent years . . . repeated attempts have been made to abridge long-settled elements of the judicial power,” the justices wrote. “The present case involves another such attempt.”

In addition to the former justices, the trial court’s decision has triggered amicus support from constitutional law professors and conservation, outdoor sporting, public health, child advocacy, and tribal groups. Energy, mining, and oil and gas companies, as well as the national, state, and local chambers of commerce, have asked justices to overturn the decision.

Republican attorneys general from 15 states have also weighed in, signing onto a brief warning the Montana Supreme Court that it risks infringing on interstate commerce if it upholds the trial court’s ruling. The brief hints at a possible federal challenge if Held survives. In May, many of the same attorneys general asked the U.S. Supreme Court to block Democratic-led states from pursuing climate lawsuits against the oil and gas industry. The Supreme Court has given the Democratic-led states until Aug. 21 to file a response.

Lessons from a federal fight

The Montana case owes much of its DNA to Juliana v. United States, in which 21 young plaintiffs claimed the U.S. government’s failure to adequately respond to climate change violated their federal due process and equal protection rights. Lawyers from Our Children’s Trust spearheaded Juliana and developed the legal theories behind it. “In Juliana, we started applying constitutional or even civil rights principles to the injuries that youth were suffering as a result of the climate crisis,” Gregory said.

While state efforts have advanced, Juliana has languished. In 2020, the U.S. Court of Appeals for the Ninth Circuit sided with the government, saying “the plaintiffs’ impressive case for redress must be presented to the political branches of government.” An amended version of Juliana is still being litigated. On May 1, a Ninth Circuit panel said the case should be dismissed. Plaintiffs have since petitioned for review by the full circuit.

Attorneys representing Montana in the Held appeal cite the Ninth Circuit’s 2020 opinion 16 times in their opening briefs. The federal court’s actions have been useful for plaintiffs as well. The 2020 opinion “informed the way the claims were formulated in the Montana case,” Hornbein said. “It influenced how we argued standing and characterized the relief we wanted from the judge.”

Hawaii’s warmer reception

Lessons learned from Juliana and the Montana case have also applied in Hawaii. In 2022, 13 youths — represented by Our Children’s Trust and the public interest firm Earthjustice — sued over the climate impact of the state transportation system. Navahine v. Hawaii Department of Transportation relied on the state constitution’s green amendment, as well as a provision that all natural resources are held in trust for present and future generations.

While state officials initially attempted to dismiss the case, their overall response to the litigation was far warmer than in Montana. The state transportation department came to the settlement table, and last month, Hawaii Gov. Josh Green (D) announced a first-of-its-kind agreement between the youth plaintiffs and the state.

The settlement commits Hawaii to planning and implementing carbon reduction plans; funding and completing green transportation projects; establishing an oversight unit in the transportation department; and involving youth in the process. The trial court has approved the settlement and maintains jurisdiction to resolve disputes that may arise.

“If this case went to trial it is likely it would have been appealed and any remedy would have been tied up in the courts for years,” said Kylie Wager Cruz, a senior attorney at Earthjustice. “Now, we already have an agreement on remedy, and we’re moving forward on implementation.”

Pollution control in New Mexico

Green amendments are not the only vehicle for state constitutional claims advancing climate protection goals. In New Mexico, where a green amendment has stalled in the legislature, a suit by environmental groups, indigenous activists, youths, and others accuses the state of failing to control air pollution from the rapidly expanding oil and gas industry in violation of the state constitution’s pollution control clause. Although more narrowly worded than the proposed green amendment, the pollution control clause says protection of New Mexico’s “beautiful and healthful environment” is of “fundamental importance” to the public welfare and requires the legislature to control pollution and “despoilment of the air, water and other natural resources.”

Gail Evans, lead counsel for the plaintiffs and a senior attorney for the Center Biological Diversity’s Climate Law Institute, said this is the first time the pollution control clause has been the basis of a challenge. “No one’s ever tried to enforce it,” she said. Plaintiffs are also pursuing claims under the constitution’s equal protection and fundamental rights clauses.

The case, Atencio v. State of New Mexico, recently survived a motion to dismiss. Government lawyers argue that a win by plaintiffs would undermine separation of powers by giving the courts authority to limit oil and gas leases until constitutional requirements are met.

Plaintiffs allege that the proliferation of fracking and other extraction methods has destroyed indigenous ancestral landscapes, sacred places, and traditional cultural resources. “When landscapes that are part of your social lineage are impacted by industry, you suffer spiritually, emotionally, and mentally,” said Julia Bernal, an Indigenous rights activist and plaintiff in the case. “There’s a feeling of responsibility to help protect these lands because that’s a relic of our past.”

A patchwork approach

Whether future plaintiffs will find courts as receptive as those in Hawaii, Montana, and New Mexico remains an open question. Phillip Gregory of Our Children’s Trust is optimistic, saying the cases demonstrate a growing willingness by judges to tackle climate change issues. “When we began these suits, judges were reluctant to take them on because they didn’t understand the science or think the evidence could translate into an appropriate remedy,” Gregory said. “Now . . . it’s clear that courts can address these issues.”

How well cases perform and the amount of resistance they encounter appears to hinge on one factor: location. The Hawaii and Montana cases demonstrate how different partisan political environments can play a critical role in the willingness of officials to reach a settlement. Burger of the Sabin Center points out that the positive outcome for the plaintiffs in Hawaii, for example, was consistent with the state’s existing climate change policies. “It may prove more difficult in a state where the political leadership is disinclined toward climate action,” Burger said.

In the end, a series of constitutional challenges may yield a patchwork of climate protections, with states that have already enshrined the right to a healthy environment in their constitutions more inclined to accept new obligations or prohibitions. “I think we’re going to see real variation among states,” Burger said.

David Brown is a freelance writer and former editor in chief of American Lawyer Media, The National Law Journal, and Legal Times.