Climacteric Litigation Decisions – Part III: The Impact of the Held Decision and the Likelihood of Future Climate Change Litigation

This article is the third in a series. In Part I of this series, which can be found here, we provided a summary of Held, et al v State of Montana, et al (“Held”),[1] in which 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 where claims based on environmental rights were upheld. In Part II, which can be found here, we provided a summary of the history of climate change litigation in Canada and the USA in the context of Held.

In Part III, we briefly discuss the potential impact of the Held decision - including the likelihood of further climate change litigation.

The issue in Held was whether a limitation in the Montana Environmental Policy Act (“MEPA”) forbade the State and its agents from considering the impacts of greenhouse gas (“GHG”) emissions or climate change as part of environmental reviews (the “MEPA Limitation”).[2] The Montana 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.[3] 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.[4] 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.[5]

While Held focused on a single provision of MEPA, the decision is notable for - and in our view, most likely to be influential in relation to - the Court’s comments with respect to climate change. In short, 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 in particular the plaintiffs and other Montana youth. The Court accepted that human activity and the burning of fossil fuels accelerates the accumulation of carbon dioxide (“CO2”) in the atmosphere, and that the continuous rise in atmospheric CO2 has caused global, national, and Montana air temperatures to rise.[6] The Court then connected these harms to the MEPA Limitation, which was found to have violated the plaintiffs' right to a clean and healthful environment. This is reportedly a connection that has not been made explicitly by any North American court previously.

Although it is a single and arguably focused ruling from a smaller jurisdiction, we nevertheless anticipate that Held will be a persuasive decision in Canada and the USA. The Court’s comments on climate change are significant, and largely as a result of that the decision has garnered significant media and public attention. Further, the decision is a breakthrough in the sense that it is reportedly the first positive result for a North American plaintiff seeking to connect the effects of climate change with direct harm personally experienced. While Held is expected to be appealed, the findings of the District Court may well encourage other youth plaintiffs in North America to commence or continue climate change-related constitutional challenges, a number of which had already been commenced in any event.

Also notable in this context is the recent United Nations Committee on the Rights of the Child’s explicit affirmation of children’s right to a clean, healthy, and sustainable environment. The update to the 1989 Convention on the Rights of the Child is designed to protect children's rights to strengthen their hand in fighting climate change. The Committee document calls environmental degradation, including the climate crisis, "a form of structural violence against children" and that states should "[remove] barriers for children to initiate proceedings themselves". While the USA did not ratify the original Convention, the decision in Held suggests that similar recognition may be starting to arise in the that country as well.

Although the immediate effects of Held have not yet been felt in Canada, the decision will in our view likely be influential on actions pending or waiting to be heard in Canadian appeal courts, for example those discussed in Part II: Mathur, et al v Her Majesty the Queen in Right of Ontario,[7] and La Rose v Her Majesty the Queen.[8] The outcome of these proceedings will continue to shape Canadian climate change litigation. All levels of government, and Canadian businesses, should be prepared for future climate-change related litigation, which is likely to become increasingly prevalent as more such lawsuits make their way through our courts, and in particular, as courts issue rulings and comments such as those in Held.

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