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Montana’s landmark climate ruling: three key takeaways

by Dharna Noor, Sunday, 20 August 2023

https://www.theguardian.com/us-news/2023/aug/20/what-happened-montana-climate-trial-decision

Montana’s landmark climate ruling: three key takeaways:

A judge last week ruled the young plaintiffs have the right to a clean environment – and experts say this changed the climate litigation landscape.

 

In a groundbreaking legal decision, a Montana judge ruled in favour of young people who had accused state officials of violating their constitutional rights by promoting fossil fuels.

 

In a 103-page court order, Judge Kathy Seeley of the first judicial district court affirmed the plaintiffs’ claim that a stable climate is included in a right to a “clean and healthful environment,” guaranteed in the state’s constitution.

 

She also found a provision in Montana’s Environmental Policy Act, which prohibited the state from considering climate impacts when permitting energy projects, to be unconstitutional.

 

The state of Montana says it will appeal, so it remains to be seen if the order will stand. Either way, experts say it changed the climate litigation landscape – though some caution that its direct effects will be limited.

 

Here are three key takeaways from the ruling.

 

Trials can make a difference, and more will come.

Even before the judge’s verdict, the Held v Montana case made history when it became the first-ever constitutional climate case in US history to go to trial.

 

Soon, similar cases will probably have the same opportunity. Youth-led constitutional climate lawsuits, which, like Held v. Montana, were brought by the non-profit law firm Our Children’s Trust, are also pending in four other states. One of those cases, brought by Hawaii youth plaintiffs, is set to go to trial in June 2024, attorneys announced this month.

 

Juliana v. United States, a similar lawsuit against the federal government filed by Our Children’s Trust in 2015, is also back on the path to trial. After years of setbacks, in June, a US district court ruled that the lawsuit’s claims can be decided at trial in open court, though a date has yet to be set.

Nathan Baring, a 23-year-old plaintiff in Juliana v United States, said the Montana suit showed how important trials can be.

 

”The trial in Montana was everything,” said Nathan Baring, a 23-year-old plaintiff in the 2015 federal lawsuit Juliana v United States. “The science was put on the stand, and youth constitutional climate rights were considered in court.”

 

He said trials provide the opportunity to contest contentious claims made by government actors.

 

“Without [a trial], justice can’t be done because you can’t establish a factual record, and you can’t call out sometimes blatant falsehoods that the government is sharing,” he said. “It’s necessary.”

 

Courts are affirming climate science.

The defense didn’t exhibit much knowledge of the climate crisis at the trial. One attorney for the state referred to the IPCC – or the Intergovernmental Panel on Climate Change – as the ICP, while a public official called as an expert witness for the state said he was not familiar with the IPCC until the trial began.

 

The state did not, however, attempt to argue that climate change is not real or human-caused – something some observers expected them to do. It’s a sign of how little cachet climate denial has in the courts, said Michael Gerrard, the founder of Columbia’s Sabin Center.

 

“The scientific evidence has become so overwhelming that lawyers realize that trying to deny climate change would subject them to not only howls of ridicule, it would be a gift for the other side,” he said.

 

That’s not a new trend. Defendants in another set of climate cases, in which municipalities are suing oil companies over their alleged misinformation campaign to cover up the dangers of using their products, aren’t relying on climate denial, either.

 

In one unusual 2018 hearing in a case brought by California municipalities against energy giants, where climate science featured prominently, a lawyer representing the defendants even extensively cited the IPCC, Gerrard noted.

 

He said only one US lawsuit in recent history, wherein two anti-clean energy groups sued the EPA, even attempted to use climate-denying arguments, and a US court threw that suit out last month.

 

But the Montana ruling did not merely affirm that climate change is real or human-caused: it specifically confirmed it is caused by fossil fuel usage and that every additional ton of greenhouse gas pollution warms the planet.

 

“Judge Seeley understood not only the issues of law, but the very complex scientific issues surrounding the climate crisis,” Melissa Hornbein, an attorney at the Western Environmental Law Center who represented the plaintiffs, said on Monday.

 

The strength of the order, said Gerrard, could make it the “final nail in the coffin of any efforts to advance climate denial in the courtroom”.

 

Climate litigation could still face an uphill battle

Supporters say the reverberations of the ruling could extend far beyond Montana, spurring more positive outcomes for existing climate cases and inspiring additional lawsuits, especially in the handful of other US states that also guarantee constitutional rights to a clean environment.

 

But the order will only directly apply within the state’s borders, and there, its implications could be narrow, said Nick Caleb, a staff attorney at Breach Collective, which provides legal and strategic support to grassroots environmental groups.

 

Seeley’s ruling, if upheld, will compel Montana to consider climate change when deciding whether to approve or renew fossil fuel projects. That’s significant, especially because it’s a major coal- and gas-producing state. However, it will not prohibit the state from allowing new fossil fuel infrastructure.

 

“It doesn’t seem like it will come close to doing that,” he said.

 

Caleb, who briefly worked for Our Children’s Trust, agreed that the ruling could inspire more litigation. But because “the judiciary is just becoming more conservative over time”, cases will probably face an uphill battle.

 

Caleb said the ruling was still an exciting victory but warned that the courts won’t solve the climate crisis alone.

 

“Without the work of passing laws and re-seizing the reins of politics and going to the ballot box, we can’t win,” he said. “We should celebrate, sure, but we should be realistic about the work ahead.”

 

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