Major Victory for Climate Litigants in Montana
By: Bea Meyer
Introduction
Climate activists gained a major victory in the fight against climate change this year in the case Held v. Montana. This case was the first of its kind to reach trial in the US and could pave the way for future climate litigation. The case hinged on the right to a clean and healthful environment, which is protected as a fundamental right in Montana’s Constitution. Plaintiffs are young people in Montana, ranging in age from 5 to 22, who assert that climate change presents an immediate and future threat to their health and safety. This issue is particularly relevant in Montana, which is one of the largest coal producers in the US. Montana currently operates approximately 5,000 gas wells, 4,000 oil wells, four oil refineries, and six coal mines.
Overview of the Case
This case was brought by 16 youth plaintiffs in Montana, and targeted the State of Montana, Governor Greg Gianforte, the Montana Department of Environment Quality, the Montana Department of Natural Resources and Conservation, the Montana Department of Transportation, and the Montana Public Service Commission.
The complaint alleged that Montana’s energy system contributes to climate change and violates Plaintiffs’ constitutional rights guaranteed under Article II, Section 3; Article II, Section 4; Article II, Section 15; Article II, Section 17; Article IX, Section 1; Article IX, Section 3 of the Montana Constitution. Specifically, the complaint targeted two provisions of the Montana State Energy Policy Act (MEPA), Mont. Code Ann.§ 90-4-l00l(l)(c)-(g) and Mont. Code Ann.§ 75-1-201(2)(a) (“MEPA Limitation”), which prohibit state actors from considering the impacts of GHG emissions or climate change in environmental reviews. Plaintiffs requested that the Court find these provisions unconstitutional, as well as order Defendants to prepare a statewide GHG accounting and develop a remedial plan to reduce statewide GHG emissions.
Defendants tried a variety of methods to prevent this case from reaching trial. Defendants filed several motions to dismiss before the case reached trial, and the Court partially granted some of these requests. The Court found that Plaintiffs’ requests to order Defendants to develop and implement a remedial plan exceeded the Court’s authority under the political question doctrine. However, the Court declined to dismiss the entirety of the case, finding that it had sufficient authority to grant declaratory and injunctive relief. Defendants also requested that the Montana Supreme Court exercise supervisory control over the case, which the Supreme Court declined.
The Montana Legislature also attempted to get the case dismissed. The Montana Legislature created the MEPA Limitation in 2011, when it amended MEPA to prohibit state agencies from considering actual or potential impacts beyond Montana’s borders in any MEPA reviews. During May 2023, in a response to the complaint of this case, the Legislature adopted House Bill 971, which amends Mont. Code Ann. § 75-1-201(2)(a) and explicitly prohibits state actors from considering GHG emissions and climate impacts in MEPA reviews. MEPA reviews are produced by state agencies when considering permits and authorizations for fossil fuel and energy projects within the state, and they must include the information relied upon by the agency to accept or withhold these authorizations. Governor Greg Gianforte signed HB 971 into law on May 10, 2023, and Defendants filed a Motion to Dismiss based on the change. Governor Gianforte also signed SB 557 in May 2023, which amended several more MEPA provisions. This amendment barred courts from being able to vacate, void, or delay permits and authorizations for reasons related to climate change.
Despite these efforts, the case reached trial on June 12, 2023. The ruling was handed down from Judge Kathy Seeley on August 14, 2023.
This case laid out vital factual findings that will be significant for future cases. The Court included dozens of pages of these findings, which include the following assertions: the Earth is warming as a direct result of human GHG emissions; the impacts of climate change are caused largely by human activities, including extracting and burning fossil fuels; climate change physically and mentally harms individuals, particularly children; climate change is already negatively impacting Montana’s environment; climate change is already harming Plaintiffs’ physical and mental health; Defendant’s actions contribute to climate change and harm plaintiffs; the MEPA Limitation is unconstitutional because it prevents state agencies from being able to review all available information and could cause them to ignore alternatives to fossil fuel energy; and the right to a clean and healthful environment is a broad and fundamental right under the Montana Constitution. These factual findings are extensive, and establish Plaintiffs’ injuries and standing, the causation of Plaintiffs’ injuries from state agency action, and the redressability of Plaintiffs’ injuries.
Ultimately, the Court found that Plaintiffs established standing, causation, and redressability. Plaintiffs proved injury to their physical and mental health, homes and property, recreational, spiritual, and aesthetic interests, tribal and cultural traditions, economic security, and happiness. They also proved that these injuries have already occurred, and will continue to occur if no remedy is provided. Plaintiffs also proved causation by establishing that Defendants’ contributions to climate change are not de minimus, and that the state’s actions cause and contribute to climate change and reduce the opportunity to alleviate Plaintiffs’ injuries. Plaintiffs also established redressability, by proving that Defendants can alleviate the negative environmental effects of the state’s fossil fuel activities by allowing state agencies to consider the best available scientific information and have discretion to deny authorizations for projects on the grounds of GHG emissions and climate impacts.
The Court also found that the MEPA Limitation is unconstitutional because it eliminates the preventative, equitable remedies for MEPA litigants who raise GHG or climate issues. The Court found that the MEPA Limitation would exacerbate Plaintiff’s injuries by preventing the state from accessing and considering vital information, and could cause the state to ignore feasible renewable energy alternatives. The Court also stated that declaring the MEPA Limitation unconstitutional could redress Plaintiff’s ongoing injuries, because consideration of climate impacts will likely reduce future approvals and permits for new projects.
The Court stated that all of Plaintiffs’ constitutional claims hinge on this fundamental right to a clean and healthful environment. The Court ruled that Mont. Code Ann. § 75-1-201(6)(a)(ii) is facially unconstitutional because it eliminates MEPA litigants’ potential remedies and fails to further a compelling state interest. The Court found that the MEPA Limitation violates Plaintiffs’ right to a clean and healthful environment under Mont. Const. Art. II, Sec. 3, 15; Art. IX, Sec. 1, and is therefore subject to strict scrutiny analysis. Under this standard, the MEPA Limitation must be in furtherance of a compelling state interest and be narrowly tailored to effectuate that interest. The Court found that Defendants failed to show a compelling government interest that is served by this Limitation, and did not show that the provision is narrowly tailored to meet this interest. Therefore, it does not pass strict scrutiny and is unconstitutional.
Takeaways and Next Steps
This case marks an incredibly important milestone in climate litigation, but it is only a first step. This ruling allows the state to consider GHG emissions and climate impacts for proposed projects, but it does not create an affirmative duty for any state agencies to decline permits or authorizations on the basis of climate impacts. This case also provides a roadmap for future cases to overcome issues of standing, causation, and redressability.
This case also stands out in contrast to previous cases because of its narrowly tailored approach. This case relied on the right to a clean and healthful environment that is enshrined in Montana’s state constitution. This makes this case somewhat unique, as only a few other states have similar provisions in their own constitutions. This case creates a clear path for future climate litigation in these states, but activists will likely need to take a different approach in states that do not acknowledge this right.
The Montana Attorney General has already filed a notice that it will appeal the ruling, but other similar cases have been brought in other states. The Plaintiffs here were represented by Our Children’s Trust, a nonprofit law firm which is pursuing similar cases in several other states. Our Children’s Trust is currently pursuing similar cases in several other states, including Hawaii, Utah, Virginia, and Florida. The earliest of these cases, Navahine F. v. Hawaii Department of Transportation, is set to go to trial in Hawaii next summer. Our Children’s Trust is also pursuing Juliana v. United States, a similar case that has faced a variety of setbacks since it was filed in 2015. Despite these setbacks, the case is set to go to trial in the near future.
Climate litigation is a growing field around the world, and this case marks an important step forward for the field. A recent UN report finds that the number of such cases is increasing and reaching new areas, as well as trying new theories and approaches to support their claims. This case provides vital insight for future cases that will continue to define this area of law, and could potentially play a vital role in driving our global fight against climate change.