Are boomer politicians obligated to act on climate change so gen alpha can inherit a livable planet? A state judge in Montana declared that doing so is a constitutional imperative Monday — validating a cutting-edge litigation strategy that could bring court-ordered climate action to states from Hawaii to Virginia, and possibly the entire nation.
The lawsuit in Montana, spearheaded by 16 young plaintiffs demanding that their future be rescued from uncontrolled warming, offers a powerful-proof-of-concept that climate litigation can force the hand of a political establishment that’s beholden to coal and oil interests. The decision is already boosting momentum for similar cases going forward across the country.
“It’s the first time that a trial court has said that the right to a stable climate is a fundamental constitutional right here in the United States,” says Julia Olson, chief legal counsel of Our Children’s Trust — the public-interest law firm that led the litigation. Most important, she insisted, the decision found that “government policies that promote fossil fuels, and ignore climate change, violate those fundamental constitutional rights.”
The litigants in Held v. State of Montana ranged from 2- to 18-years-old when the suit was filed in March 2020. These young people claimed both “physical and psychological” harms from climate change — ranging from asthma exacerbated by wildfire smoke; to anxiety about whether it’s safe to bring new children onto our wildly warming world; to loss of enjoyment of the state’s legendary alpine glaciers. A trio of indigenous plaintiffs decried weather extremes that increasingly disrupt their ability to “participate in cultural practices and access traditional food sources.”
The lawsuit leaned on a powerful provision of the Montana state constitution. Revised in the early 1970s — after decades of unchecked industrial pollution by mining and smelting giants had befouled towns like Butte and Anaconda — the document guarantees that Montana “shall maintain and improve a clean and healthful environment… for present and future generations.” Montana’s environmental guarantee is one of the strongest such commitments in the country, matched only by Pennsylvania and New York.
These young plaintiffs targeted — in particular — a see-no-evil provision of state law that actually forbade state regulators from considering greenhouse-gas emissions or climate impacts when conducting environmental reviews. (While famous for its natural beauty, Montana is also a haven for fossil-fuel interests, producing five percent of the nation’s coal, while being home to four oil refineries that process 218,000 barrels a day.)
Montana district court judge Kathy Seeley pulled no punches in her 103-page ruling. She declared that the prohibition on weighing climate impacts is “facially unconstitutional” because it “violates the Plaintiffs’ right to a clean and healthful environment.” The state’s climate-blind decisions, she insisted, have been “contributing to the depletion and degradation of Montana’s environment and natural resources.”
The state has 60 days to file an appeal; and given the GOP control of state government such an action is a near certainty. The Montana Supreme Court would be likely to take up the matter in the spring of 2024.
For now, however, environmentalists are cheering the landmark victory. The decision, for Olson, is the culmination of more than a decade of rowing against the legal tides. “When I founded Our Children’s Trust in 2010, we set out to represent young people and sue governments for causing climate change and violating their basic human rights. And it has taken 13 years of a lot of different legal actions to get to this ultimate win.”
Our Children’s Trust is following in the footsteps, as Olson sees it, of the often-frustrated legal battles that ultimately dismantled school segregation and the prohibitions against same-sex marriage. “It takes time to work through the legal system,” she insists, adding that “the turning point has often been with a state court decision.” Olson points to the momentum created by the state of Hawaii when its courts ruled in the mid 1990s that sex couples could marry. “That was really important and helped set up what happened at the U.S. Supreme Court.” For that reason, Olson insists that this week’s Montana win was “monumental,” and adds with confidence: “More rulings like this will certainly come.”
Our Children’s Trust is based in Eugene, Oregon. And when Olson and I spoke this week, the threat of global warming was not abstract. In Portland, where this reporter is based, the temperature had just hit 108 degrees — a record eclipsed only by the deadly heat dome of 2021. Eugene, 100 miles to the south, was grappling with the same heat event, but also choking on hazardous smoke from nearby wildfires. “It’s 458 AQI right now, outside,” Olson told me. “Inside, I’m in the red. I’ve been trying to get out my air purifiers going. It’s really gross.”
Aiming to build on the Montana win, Our Children’s Future already has legal actions in the pipeline in four other states: Florida, Hawaii, Virginia, and Utah. Its landmark federal case Juliana v. United States, first filed in 2015, also has new momentum — as it now has a clear path to a trial.
Of these cases, Hawaii already has a court date, currently scheduled for June on next year. With the island of Maui reeling this month from catastrophic wildfire that leveled the historic town of Lahaina, killing at least 100 people and creating economic damages of up to $7 billion, the urgency of curbing climate change could hardly be more pressing.
The Hawaii lawsuit is brought by 14 young plaintiffs, and it seeks to force the state’s Department of Transportation to upend the fossil-fuel status quo of state highways, making investments to ensure that Hawaii can actually meet the state’s emissions-reductions mandate, which calls for Hawaii to be net carbon negative by 2045. As the years tick by, the plaintiffs insist, state transportation officials are dragging their feet. “The leadership in Hawaii, is actually doing things that are exacerbating the climate pollution coming out of the transportation sector. So their emissions are going up, not down,” Olson insists.
Similar to Montana, the litigants are claiming a violation of the state constitution’s mandate to “conserve and protect Hawaii’s natural beauty and all natural resources.” The aim, Olson insists, “is to have the court rule that Hawaii’s conduct is unconstitutional. They’re gonna miss their own deadlines. And they’re violating these these youths rights as a result.”
In Virginia and Utah, Our Children’s Trust is appealing lower court decisions that have blocked consideration of those youth plaintiffs’ constitutional claims — on technical grounds — without weighing the facts. In Virginia, a judge questionably declared the state has “sovereign immunity” from being sued by a dozen young residents over climate change. “They’re saying that you can’t bring a case and sue the state of Virginia for violating your rights to life or liberty, unless the state expressly gives you permission to do so,” Olson says. An appeal could be heard as soon as December.
In Utah, seven youth plaintiffs have sued the state, insisting the state is disregarding the state constitution’s guarantee of “life” by recklessly championing fossil fuels. “Utah is similar to Montana, in that they have many laws on their books — that were challenging — that actually require Utah to approve fossil fuel activity and promote it,” Olson says.
A lower court dismissed the complaint without considering the merits, making an extreme claim that state courts don’t have jurisdiction to shape the state’s fossil fuel policy. In a rare step, the Utah Supreme court has now agreed to hear the case directly, bypassing the normal appellate court process. That high court, Olson insists, “will decide is whether the Utah constitution actually protects a right to life — and not to have your lifespan shortened by government conduct.”
In addition to such state litigation, Our Children’s Trust landmark federal case Juliana v. United States lawsuit, is finally on course for a trial date. That case, initially filed in 2015 on behalf of 21 youth litigants, seeks to force the federal government to guarantee a stable climate as a precondition for the fundamental rights of life, liberty and property — and that the government’s “deliberate indifference” to the damages of climate change violates the plaintiff’s constitutional rights.
That lawsuit has had a tumultuous ride through the court system, at times appearing dead in the water. But a judge’s ruling in June has the case back on track. The youth lawsuit can no longer demand that the federal government craft a climate action plan, but it can seek a “declaratory judgment” that the federal approach to global warming has been unconstitutional — meaning that the government would have to make swift policy changes or face new rounds of lawsuits.
The Montana litigation, decided in a state court, does not provide direct precedent for the federal case. But it does knock the legs out out from under federal claims that the Juliana case is too sprawling for the courts to handle. The Montana case was argued in just seven days. “It is a good example as a model for the feasibility of a trial on these issues,” Olson insists. “And then in ruling itself, the judge pointed to similar provisions — that the U.S. constitution also contains — in terms of our rights to life and liberty.”
The Biden administration plainly takes climate change seriously. The Inflation Reduction Act, passed one year ago, dedicated some $370 billion for investment in clean energy, electric vehicles, and pollution reduction. “We have a president who is trying to do more,” Olson says, pointing to the IRA and regulatory changes “to encourage the transition” to clean energy. But she sees this as fundamentally insufficient so long as the government supports fossil-fuel extraction policies that have made the United States the largest oil and gas producer in the world.
Olson hopes the outcome in Montana will convince the Department of Justice to stop tactics pioneered in the Trump era, to delay and postpone a day in court. “For the Biden administration fight to keep this case out of trial — it’s a wrong thing to do,” Olson insists. “We’re hoping that they will back down and just defend the case at trial. Put on your best case. They can put on evidence about everything they think they’re doing to stop these constitutional injuries. The court can hear the evidence — and everything can be cross examined. Let’s have it out!”
The success of the Montana lawsuit is not simply a wakeup call for polluters and regulators. It’s also being seen as a spur to citizens to look to constitutional amendments to address climate change where state legislatures have failed. Much like pro-choice voters are using the initiative process to safeguard reproductive rights in state constitutions, climate-mined voters could create a sturdy framework for climate protection by adopting similar language to Montana’s in their state constitutions.
That’s the agenda of Green Amendments for the Generations, a group that promotes constitutional environmentalism, founded by attorney Maya van Rossusm. “In Montana, the people now have a powerful legal tool to take on government officials who are failing in their moral, political, and now constitutional duty to protect the environment, the climate and the health and safety of present and future generations,” van Rossum, insists. “This ruling will also support the advancement of similar language in a growing number of states considering constitutional Green Amendments for addressing the climate crisis.”
From Olson’s perspective, such Green Amendments are welcome, but she believes that the standing guarantees of essential liberties, inherent in all state constitutions, can and must be sufficient to address the indisputable harms of climate injury. “It’s not necessary,” she says of Green Amendments, “and it shouldn’t slow down our work to protect the fundamental rights of young people in the face of the climate crisis today.”