Climacteric Litigation Decisions  – Part I: A Discussion of the Montana Climate Trial

Introduction

In Held, et al v State of Montana, et al (“Held”), the Montana First Judicial District Court in Lewis and Clark County, Montana, handed down an Order that is reportedly the first major climate litigation decision to come from a North American court that upheld claims based on environmental rights.

This article is the first in a three-part series. In this article, we will provide a summary of the decision, which will be followed by articles on the history of climate change litigation in North America, and the potential impact of this decision - including the likelihood of further climate change litigation.

Summary of Held

Overview of the Claim

In 2020, sixteen Montana youths (the “Plaintiffs”) filed a Complaint against the State of Montana, including the Governor, Montana Department of Environmental Quality, Montana Department of Natural Resources and Conservation, Montana Department of Transportation, and Montana Public Service Commission (collectively the “State”). The Plaintiffs’ Complaint challenged the constitutionality of the State’s fossil fuel-based state energy system, which they alleged causes and contributes to climate change in violation of their constitutional rights guaranteed under certain Articles of The Constitution of the State of Montana (the “Montana Constitution”). [1]

Specifically, the Complaint challenged the constitutionality of provisions of the Montana Environmental Policy Act (“MEPA”), including a provision enacted in 2011, which forbids the State and its agents from considering the impacts of greenhouse gas (“GHG”) emissions or climate change in their environmental reviews (the “MEPA Limitation”).[2] The Plaintiffs asked the Court for a declaration that the MEPA provisions were unconstitutional, and that the Defendants’ past and ongoing aggregate actions to implement a fossil fuel-based energy system – perpetuated through the MEPA Limitation – were unconstitutional.

On May 10, 2023, the Montana Legislature made clarifying amendments to the 2011 MEPA Limitation, and on June 19, 2023, the Plaintiff’s action proceeded to trial.

Applicable Legislative Provisions

The 2011 MEPA Limitation provided in part:

(2)(a) Except as provided in subsection (2)(b), an environmental review conducted pursuant to subsection (1) may not include a review of actual or potential impacts beyond Montana’s borders. It may not include actual or potential impacts that are regional, national, or global in nature. [3]

The clarifying amendments to this provision, enacted on May 10, 2023, further prohibited Montana’s agencies from considering environmental impacts, including GHGs:

(2)(a) Except as provided in subsection (2)(b), an environmental review conducted pursuant to subsection (1) may not include an evaluation of greenhouse gas emissions and corresponding impacts to the climate in the state or beyond the state’s borders. (New language underlined).[4]

Both the 2011 and 2023 versions of the MEPA Limitation allowed fossil-fuel related projects to be permitted without consideration of impacts that increase GHG emissions.[5] Also at issue was the wording of MEPA section 75-1-201(6)(a)(ii) (the “MEPA Court Limitation”), which constrained the authority of courts when reviewing MEPA analyses:

201(6)(a)(ii) An action alleging noncompliance or inadequate compliance with a requirement of parts 1 through 3, including a challenge to an agency's decision that an environmental review is not required or a claim that the environmental review is inadequate based in whole or in part upon greenhouse gas emissions and impacts to the climate in Montana or beyond Montana's borders, cannot vacate, void, or delay a lease, permit, license, certificate, authorization, or other entitlement or authority unless the review is required by a federal agency or the United States congress amends the Federal Clean Air Act to include carbon dioxide as a regulated pollutant.[6]

The Plaintiffs’ position was that the MEPA Limitation and the MEPA Court Limitation violated their constitutional rights guaranteed by Article II, sections 3, 15 and Article IX, section 1 of the Montana Constitution (the “Guarantee”):

Article II

Section 3. Inalienable rights. All persons are born free and have certain inalienable rights. They include the right to a clean and healthful environment … [7]

Section 15. Rights of persons not adults. The rights of persons under 18 years of age shall include, but not be limited to, all the fundamental rights of this Article unless specifically precluded by laws which enhance the protection of such persons.[8]

Article IX

Section 1. Protection and improvement.

(1) The state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations.

(2) The legislature shall provide for the administration and enforcement of this duty.

(3) The legislature shall provide adequate remedies for the protection of the environmental life support system from degradation and provide adequate remedies to prevent unreasonable depletion and degradation of natural resources. [9]

Climate Science and The Harm of Climate Change

At trial, the Court accepted expert testimony from scientists regarding the physics of GHG emissions that drive climate change and how human caused fossil fuel development harms Montana's ecosystems, hydrology, communities, and the Plaintiffs. The Court accepted that human activity and the burning of fossil fuels accelerated the accumulation of carbon dioxide (“CO2”), and that the continuous rise in atmospheric CO2 caused global, national, and Montana air temperatures to rise.[10] The Court also accepted testimony from medical experts that air pollution from climate change was negatively affecting children in Montana, including the Plaintiffs, with a strong likelihood that those impacts would worsen in the absence of aggressive actions to mitigate climate change.

The State's Actions Contributed to Climate Change and Harmed the Plaintiffs

Through MEPA, the Defendants permitted the extraction of fossil fuels, processing and transportation of fossil fuels, and consumption of fossil fuels by end users.[11] The Court stated that these activities in Montana accounted for about 166 million tons of CO2 released into the atmosphere in 2019.[12] The cumulative emissions from all fossil fuels extracted in Montana since 1960 was said to be 3.7 billion tons of CO2.[13]

Traceable Connection Between the MEPA Limitation and the Plaintiffs' Injuries

Due to the MEPA Limitation, the State had not considered GHG or climate change impacts in their environmental reviews because they were precluded from doing so.[14] The State’s authorization of fossil fuel extraction, transportation, and combustion activities with no environmental review of their impact on GHG levels and climate change [15] was said to have caused substantial GHG emissions into the atmosphere, contributing to climate change.[16]

The Court further concluded that there was a traceable connection between the State’s allowance of resulting fossil fuel GHG emissions through the MEPA Limitation, which contributed to the Plaintiffs’ injuries. The State could have alleviated the harmful environmental effects of Montana’s fossil fuel activities had they been allowed to consider GHG emissions and climate change during MEPA reviews.[17]

MEPA Provisions Declared Unconstitutional

The District Court confirmed that the right to a clean and healthful environment is a fundamental right protected by Montana’s Constitution, and that this right extends to children under the age of eighteen.[18] The Court commented that Montanans’ right to a clean and healthful environment requires their government to maintain and improve the environment and provide adequate remedies to prevent unreasonable depletion and degradation of natural resources.[19]

By enacting and enforcing the MEPA Limitation, the State failed to protect the Plaintiffs’ right to a clean and healthful environment, and to protect Montana’s natural resources from unreasonable depletion.[20] The Court concluded that by prohibiting the consideration of climate change, GHG emissions, and how those emissions contribute to climate change, the MEPA Limitation violated the Plaintiffs’ right to a clean and healthful environment and was therefore unconstitutional.[21] The Court further concluded that the MEPA Court Limitation was unconstitutional because it eliminated remedies to prevent irreversible environmental degradation. [22] As a result, the District Court ordered in part, that the MEPA Limitation and the MEPA Court Limitation be declared unconstitutional.

Conclusion

Held is reportedly the first major climate litigation decision to come from a North American court that upheld claims based on environmental rights. Even if the District Court’s decision is overturned on appeal, it could have a lasting impact on climate change litigation in the United States and Canada.

Stay tuned for the next two articles where we will review the history of climate change litigation in North America and the potential impact of Held, including the likelihood that further climate change litigation will occur.

For more information on environmental and climate change litigation, contact Stuart Chambers, Aaron Mann, or any member of our Environmental & Energy Practice Group.