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State Courts Confront Climate Change

Two lawsuits seek relief from climate change using state constitutions.

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Earlier this month, a trial court in Hawaii ruled that a climate change case brought under the state constitution could move forward to trial. The plaintiffs, all young people, argue that greenhouse gas emissions from Hawaii’s transportation system violate the state’s “public trust” duties to preserve natural resources. The plaintiffs point to a provision in the Hawaii Constitution that requires the government to preserve natural resources “for the benefit of present and future generations,” as well as a provision providing a “right to a clean and healthful environment.”

The Hawaii climate trial, scheduled for September, will come on the heels of a similar trial in Montana expected to begin in June relying on a state constitutional provision that the government has a duty to “maintain and improve a clean and healthful environment.” The Montana trial will be the nation’s first “youth-led” climate trial and the first climate trial brought under a state constitution.

The federal courts have not been receptive to similar claims. Back in 2020, the Ninth U.S. Circuit Court of Appeals shut down a climate case brought by young people against the federal government, Juliana v. United States, which raised claims under the Fifth Amendment. The court ruled that the plaintiffs lacked standing to sue because the relief they sought — “a comprehensive scheme to decrease fossil fuel emissions and combat climate change” — was beyond the powers of the federal courts to order or implement.

It remains to be seen how the plaintiffs will fare in Montana and Hawaii and whether state courts will have more of an appetite to supervise state policy on climate. (Already, the trial courts in Montana and Hawaii have taken different paths: in Montana, the court ruled that it could declare government conduct unconstitutional but not issue any injunctions, while in Hawaii, the court left open the possibility of injunctive relief.) But one difference between these state cases and Juliana is their grounding in explicit state environmental protections. In a new piece for State Court Report, Northeastern Law School professor Martha Davis offers invaluable context with an overview of environmental rights in state constitutions.

As Davis explains, the first environmental rights amendments appeared in state constitutions in the 1970s as part of the burgeoning environmental movement. The record on judicial enforcement has been mixed: in some states, like Massachusetts, courts haven’t recognized a private right to sue under their state constitution’s environmental provisions. By contrast, Pennsylvania’s and Montana’s high courts have both found their states’ “Green Amendments” to be enforceable by courts.

Many questions still remain, Davis notes, including the “meanings of basic terms like ‘clean’ and ‘healthful.’” And more Green Amendments may be on the horizon. New York passed one in 2021 — with cases already winding through state courts — and active amendment campaigns are underway in several states.

It’s not uncommon for state constitutions to offer litigation paths foreclosed by federal courts. In San Antonio Independent School District v. Rodriguez, for example, the U.S. Supreme Court rejected a federal right to education, leading advocates to turn to education clauses in state constitutions. Most state courts agreed to fill the legal void, finding education rights to be enforceable. But the education cases also offer a note of caution: remedies, particularly those requiring substantial government expenditures, have often been hard to come by. The upcoming trials in Montana and Hawaii will offer an early glimpse into the extent to which state environmental provisions have teeth when it comes to addressing climate change.

Alicia Bannon is editor in chief for State Court Report. She is also director of the Judiciary Program at the Brennan Center for Justice.

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