Historic Montana Environmental Rights Case on Appeal In State Supreme Court

By A. Bashar Zaheer, 2L at Saint Louis University School of Law.

On August 14 2023, the First Judicial District Court of Montana in Held v. Montana, found that two Montana laws restricting state action addressing climate change were unconstitutional infringements of the plaintiffs’ right to a clean and healthful environment.

In recent years, environmental groups across the world have asserted the right to a healthy environment as a basic human right, culminating in the 2021 decision by the UN Human Rights Council to enshrine the right to a healthy environment. Additionally, several countries have begun to enshrine these rights in their constitutions, including in India, where the Supreme Court recently found that that the climate crisis was a threat to citizens right to life. In the U.S., efforts to assert environmental rights have often been led by youth groups, arguing that the government has a duty to act now to mitigate climate change, as it represents a present threat to their life and liberty. In Montana, such a right is already enshrined in the state constitution in Article IX, maintaining that the "state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations," as well as Article II, Section 3 which maintains that “All persons are born free and have certain inalienable rights. They include the right to a clean and healthful environment…”

In Held, sixteen youth residents of Montana, represented by the non-profit Our Children’s Trust, seek to enforce this constitutional right to challenge a provision of the Montana Environmental Policy Act prohibiting the state from considering greenhouse gas emissions in deciding whether to issue permits for energy projects, as well as a related section of the State Energy Policy. The District Court found that these permitting limitations were in violation of the state constitution, and the defendants have since appealed to the Montana Supreme Court.

This follows a previous similar case, Juliana v. United States, where the Ninth Circuit Court dismissed plaintiff’s attempts to assert that the Federal Governments inaction against climate change violated the constitutional rights of young people. The Juliana case was initially brought by 21 youth plaintiffs, also represented by Our Children’s Trust, against several federal agencies arguing that government inaction regarding climate change threatened their due process rights to life, liberty, and property. Ultimately, the Juliana case was dismissed by a 2-1 vote of the Ninth Circuit, citing a lack of Article III standing, stating that it was beyond the Court’s power provide remedy. In dissent, Judge Staton found instead that the majority was shirking its responsibility to rectify the constitutional wrong brought by the plaintiffs.

Where the Juliana case failed, Held may provide new strategy for legal climate activists in using State Constitutions as a source of environmental human rights. As of 2024, several states have environmental rights enshrined in their constitutions, including Pennsylvania, where in Robinson Township v. Commonwealth, the Pennsylvania Supreme Court used these rights as a basis for declaring bans on local fracking restrictions unconstitutional. Many more states also have movements to establish constitutional rights to a clean environment, and one such movement was successful in amending the New York State Constitution to include the “right to clean air and water, and to a healthful environment,” in 2021.

On July 20, 2024, the Montana Supreme Court heard arguments for the State’s appeal of the decision. While not discounting the reality and effects of climate change, state attorneys argued that the court should avoid the issues at hand as political questions and should focus on the specific permitting decisions discussed and asserted that the plaintiff’s claims are weakened by a lack of a clear remedy. The Montana Supreme Court has not yet released their ruling on the appeal.

While Juliana mostly failed to assert environmental rights on the federal level, environmental rights may be more enforceable on the state level, and it is likely that environmentalist groups will continue to bring more litigation on these grounds in the future.

Read the full District Court verdict for Held v. Montana here.