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In Keeping With Global Trend, Youths Continue to Advance Climate Litigation in the United States in 2023

On August 14, 2023, a Montana state court issued a first-of-its-kind judgment in the United States in favor of young plaintiffs in climate litigation. The action Held v. Montana featured 16 youth plaintiffs alleging that state law violated the Montana Constitution's guarantee to a "clean and healthful environment." In a 103-page order granting judgment, the court agreed, finding that the plaintiffs enjoyed standing to sue and that Montana's "globally significant" greenhouse gas emissions contribute to climate change. Held illustrates the willingness of courts—at least in certain circumstances—to curb state action based on environmental rights in state constitutions.  

The claims in Held turned on unique provisions of the Montana Constitution. Article IX, Section I of the Constitution sets forth that the state must maintain "a clean and healthful environment in Montana for present and future generations." The Held plaintiffs challenged a fossil fuel provision of the Montana Environmental Policy Act ("MEPA"), which forbade state agencies from considering the impacts of greenhouse gas emissions or climate change in their environmental reviews. Applying strict scrutiny, the court found the provision violated the constitution.  

Held features at least three significant results.  

First, Held concludes that the young plaintiffs have standing based on injury to physical and mental health. In reaching this conclusion, the court relied on testimony by academic experts on greenhouse gas emissions and climate change modeling. 

Second, the court again relied on expert testimony to find that Montana's fossil fuel activities have a "real impact" on global warming and can be measured both by immediate local effects and by global climate change. Held emphasized Montana's contribution to climate change was "nationally and globally significant." 

Third, Held found that climate harm is redressable through a declaratory judgment. The court found that the state can alleviate fossil fuel harms by removal of MEPA's limiting provision. State agencies must have the discretion to deny permits for fossil fuel activities to prevent the degradation and depletion of Montana's environment.  

For its part, the United States government maintains Held has limited force. In Juliana v. United States, pending in the District of Oregon, young plaintiffs sued the federal government, alleging a constitutional due process right to a "stable climate system capable of sustaining human life." The government has moved to dismiss the second amended complaint, and the Juliana plaintiffs used Held to argue that a plaintiff can prove climate injuries at trial and that courts can redress those injuries. In a September 5, 2023, response, the federal government maintained that Held focuses "narrowly on the constitutionality of the Montana Environmental Policy Act" and relies on unique language in the Montana Constitution. Because the Montana Constitution confers a right to a "clean and healthful environment" and because no analogous fundamental right exists in the United States Constitution, the government insists Held has no bearing on the Juliana litigation. Nonetheless, in granting judgment for the plaintiffs, Held delivered to young litigants a novel victory. Other plaintiffs have already asserted similar claims in Utah, Hawaii, and Virginia, with potentially more litigation under state constitutions to come.  

Held adds a court within the United States to the list of forums open to similar climate protection lawsuits and themes. In 2021, the German Federal Constitutional Court held unconstitutional parts of an act governing climate targets because the targets (which were only in effect until 2030) violated the fundamental rights of the complainants, who were mostly young. And more recently, in August 2023, the United Nations Committee on the Rights of the Child issued a report asserting that "[a] clean, healthy and sustainable environment is both a human right itself and necessary for the full enjoyment of a broad range of children's rights." The report identified several rights under the Convention on the Rights of the Child affected by "environmental degradation" and urged for "access to justice pathways for children" to pursue an effective remedy for "violations of their rights relating to environmental harm." Current and future litigation will determine the full scope of this trend, but there appears no slowdown in youth climate litigation for 2023 and beyond. 

Read the full Climate Report.

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