Climate Hostility, Courts, and Six Thoughts on the Future
In Held v. Montana, the judge found that it was unconstitutional for the state to ignore climate change when reviewing fossil fuel project. Zooming out, what are the implications of this ruling?
In America, policy changes start in the states, our laboratories of democracy. In Montana, conflicting views on the role government should play in addressing climate change recently came to a head. Understanding what happened in Montana is instructive, as similar conflicts will play out across the country for decades to come.
2011 was a busy year in Montana. The State Legislature passed a law that banned state agencies from considering the impact of “actual of potential impacts that are regional, national, of global in nature” (read: climate change) when assessing permitting request for fossil fuel projects. That same year, Our Children’s Trust, a legal NGO “representing young people and their legal right to a safe climate” began searching for a case in Montana to use to assert this legal right. They chose Montana because its State Constitution includes an inalienable right “to a clean and healthful environment.”
Fast-forward to 2023, and the State Legislature decided that it’s 2011 work was too subtle, so it updated the Montana Environmental Policy Act (MEPA) to explicitly prevent the state from “an evaluation of greenhouse gas emissions and corresponding impacts to the climate in the state or beyond the state’s borders.” After fits and starts, Our Children’s Trust filed a complaint in 2020 on behalf of 16 youth from Montana that became Held v. Montana.
The question before the Court in Held v. Montana was as simple as it was critical: can the state willfully ignore climate change, or must it recognize and mitigate the threat posed by climate change to protect the inalienable rights of Montanans?
The ruling from District Court Judge Kathy Seeley was unequivocal; she ruled1 that
By prohibiting analysis of GHG emissions and corresponding impacts to the climate, as well as how additional GHG emissions will contribute to climate change or be consistent with the Montana Constitution, the MEPA Limitation violates Youth Plaintiffs' right to a clean and healthful environment and is unconstitutional on its face.
Because the law builds on itself, slowly and methodically, the implications of this ruling will not be fully known for decades, but scholars are optimistic. As Michael Burger, executive director of the Sabin Center for Climate Change Litigation at Columbia University, told the New York Times
This was climate science on trial, and what the court has found as a matter of fact is that the science is right. Emissions contribute to climate change, climate harms are real, people can experience climate harms individually, and every ton of greenhouse gas emissions matters. These are important factual findings, and other courts in the U.S. and around the world will look to this decision.
Climate change is real, the harm it causes people is meaningful, every ton of emissions matters, and the state of Montana cannot both ignore these facts and meet its Constitutional mandate to ensure a “clean and healthful environment.” This is a big deal, and something to celebrate.
Zooming out, here are my key takeaways from Montana:
The ruling was rooted in the harm that climate change does to people. I care deeply about animals and their rights, but to be successful, the focus needs to be on the impacts of climate change on people.
The politicization of climate policy means that both state and federal legislators will continue working to prevent the government from acting on the climate.
State courts are one way to push back against these types of policies, but their reach is limited. The ruling in Montana relied on its State Constitution. Five additional state constitutions (Hawaii, Illinois, Massachusetts, New York, and Pennsylvania) include a right to environmental quality.
US Courts move slowly compared to the pace of action needed to prevent the worst impacts of climate change. We cannot wait on the courts to save us.
That said, regulation and government action have a critical role to play. In my view, the regulatory mandates (sticks) are likely to come from the EU (e.g. CSRD), while the US Federal government is better equipped to provide carrots for investments in a clean energy and more climate resilient future (e.g., the Inflation Reduction Act).
Regulation and litigation are key tools, but both are too slow and limited to get us where we want to go. As Al Gore said, we need to apply pressure to the fossil fuel industry. In addition, we should try to work for, buy from, and support companies and organizations that share our values when possible.
Climate change is a global, multi-faceted, and generational challenge. No single strategy or action in isolation can get us where we need to go. Instead of looking at this reality with gloom, hoping that a magical technology or court ruling will instantly change everything, we should look at is as an opportunity to realize that each of us, in our own way, has a role to play. This role can be as easy as turning off the lights or washing our clothes in cold water or having a conversation with a friend about the impact small decisions can make. Every step, every action, and the way every person pitches is matters.
Her order, which is worth a read, is on pages 101-103.