Human Rights at Home Blog

Event 10/3: Climate Litigation Virtual Summit: Climate Rights Matters

On October 3, 2024, from 1:00-2:00pm EDT, the ABA Section of Environment, Energy, and Resources will hold a webinar exploring climate litigation. The program will feature panelists Jessica Simor, Melissa Anne Hornbein, Payam Akhavan, and Sophie Marjanac.

In this webinar, climate rights litigators will discuss cases brought around the world in which they assert that international and domestic law imbue people with rights to climate mitigation and adaptation, including in Australia (Daniel Billy and Others v. Australia), Oceania, Switzerland, and international and regional courts (Commission of Small Island States on Climate Change and International Law and Association of Swiss Senior Women for Climate Protection v. Federal Department of the Environment Transport, Energy and Communications and Others). The discussion will feature the cases, strategies, and goals for litigators for future climate rights litigation, as well as highlight and contrast international litigation relative to U.S. cases such as Held v. Montana. Panelists will also discuss the legal frameworks enabling claims of climate rights globally compared with in U.S. law.

Register for the event here. CART services will be available for deaf or hard of hearing attendees.

New Article: Deprivation of Liberty as a Last Resort: Understanding the Children's Rights Law Mandate for Youth Justice

Lauren Meeler, Jonathan Todres, Deprivation of Liberty as a Last Resort: Understanding the Children's Rights Law Mandate for Youth Justice, 60 Stan. J. Int'l L. 1 (2024). Abstract below.

International law is consistent in affirming that the deprivation of liberty should be a “last resort” for children. This norm is affirmed by the extensive evidence that detention is detrimental to the wellbeing and healthy development of young people. Yet while it is broadly understood that detention of children and youth should be uncommon, there is much less clarity around what the “last resort” mandate means in practice—that is, under what circumstances is detention permissible and what, if anything, must states do prior to considering the detention of a young person. Drawing on scholarship on criminal justice and human rights, the work of international treaty bodies, and other human rights sources, this Article explores the meaning of “last resort” under international law, focusing in particular on the use of arrest, detention, and imprisonment in the youth justice context. The Article then proposes a framework for operationalizing the “last resort” mandate so that governments can respond in a more rights-affirming manner to children who are in conflict with the law.

Available at SSRN.

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.