Earthward: Montana Climate Case

This week in Montana, a trial court judge delivered an important and decisive victory for young people. It ruled that the state constitution, which affirms that citizens have a right to a clean and healthful environment, is violated by laws that prevent considering climate change impacts from new fossil fuel projects. The plaintiffs in this case against the state are a group of 16 youths represented by Our Children’s Trust, the nonprofit environmental law firm dedicated to preserving a stable climate for future generations. OCT is considering lawsuits in all 50 states and supports a number of efforts worldwide. Although there have been some notable successes abroad, the victory this week in the Montana case, Held v. State of Montana, is the first trial win in a US climate case. The decision is pathbreaking; the faculty director of Columbia University’s Sabin Center for Climate Change Law, Michael Gerrard, opined on National Public Radio that this was one of the strongest decisions on climate change ever issued by any court.

Trial courts are where plaintiffs (the youth) and defendants (the State of Montana) present evidence for their respective positions, after which the judge makes “findings of fact” – deciding on what the facts are to guide her decision. About 50 years ago, Montana enacted an overarching environmental law, the Montana Environmental Protection Act (MEPA), which requires environmental impact statements for major state actions that significantly affect the quality of the human environment. MEPA quickly inspired an amendment to the Montana Constitution, one of only a handful like it in the country, stating that “the state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations.” Montana, however, is also a fossil fuel production state where coal mining and oil and gas drilling generate significant revenues and employment. In 2011, fossil fuel interests succeeded in pressuring the Republican-dominated legislature to amend MEPA, preventing state agencies from considering how their permits for fossil fuel excavation affect the environment outside Montana. This effectively prevented analysis of how these fossil fuel projects cumulatively impact greenhouse gas emissions and climate change.

A key claim that the youth plaintiffs made in their lawsuit was that these MEPA amendments are not consistent with Montana’s constitution. To evaluate this at trial, the judge had to make “findings of fact,” which in this case amounted to evaluating the testimony of expert witnesses from both sides. Plaintiffs enlisted a large number of highly credible witnesses, including climate scientists, renewable energy specialists, analysts of Montana-specific climate impacts, and even specialists in children’s health and psychology. Judge Kathy Seeley’s opinion strongly reflected the testimony of these witnesses, which she clearly found highly credible. Her opinion describes, as “findings of fact”, the quantitative buildup of carbon dioxide in the atmosphere, its persistence for centuries to millenia, the consequence of this buildup for Earth’s present energy imbalance, the well-developed capacity of climate and energy specialists to accurately calculate the emissions from a given amount of fossil fuel excavation, the impacts of climate change in Montana, and the capacity of the state to replace its fossil fuels with wind, water and sunlight. The links between fossil fuel burning, anthropogenic climate change and environmental degradation are now established facts in Montana’s 1st Judicial District.

Judge Seeley’s findings of fact go well beyond what is needed to resolve the question posed in the case, indeed offering a well-justified argument that any further excavation and burning of Montana’s fossil fuels is inconsistent with the “clean and healthful environment” mandated by the state’s Constitution. Ruling that the MEPA amendments are unlawful was not a stretch. One might have hoped that the judgment could go further, perhaps disallowing (as unconstitutional) all further permitting of new fossil fuel projects or even mandating closure of existing mines and drilling sites. Indeed, at an earlier stage of the proceedings, the youth plaintiffs had asked the court to require Montana to develop a remedial plan to reduce greenhouse gas emissions. But Judge Seeley declined, asserting instead that only the legislative and executive branches of government could enact and enforce the execution of such a plan. This judicial limitation, known in legalese as the “political question doctrine”, has come up before in US climate change lawsuits and will unfortunately continue to limit what can be achieved by this approach.

Climate change action in the US has become hostage to culture wars, where demonizing of the “other” replaces rational negotiation. Misleading arguments about climate science fundamentals and the discounting of climate change impacts are staples of the political Right, so one might have expected such arguments from the Montana state defendants in this case. Instead, their “star” witness did not appear at the June trial, and another witness that did testify was found not credible. It appears that the defense caved, barely trying to put forward an argument that might have produced a result in their favor. We should be so lucky in other cases, or even in this one. An appeal to the Montana Supreme Court appears likely, and one thing that appellate courts of review can do is send matters back to trial courts, for further “findings of fact.”

Even if Judge Seeley’s opinion is unchallenged or is upheld on appeal, its actual impact on Montana’s actions is unlikely to be large. Both Montana’s governor and its legislature are Republican, and the business of politics in the state is heavily determined by what the coal, oil and gas interests want. Greenhouse gas estimates may now be made as part of MEPA, but, like its federal analog NEPA (the National Environmental Policy Act), the state law only mandates a thorough review, not a favorable outcome in any particular case. Montana decisionmakers after MEPA review may even purport to find justification for new fossil fuel permitting in the Held opinion. The holding correctly notes that even small amounts of greenhouse gas emissions add to the burden of climate change, but it also goes to some lengths to emphasize that Montana’s overall emissions are equal to or higher than those of many small countries that are working to reach net zero under the international Paris accords. Focusing on the latter, it would be disingenuous, but not surprising, if new permits continue to be issued with the justification that additional emissions are small compared to Montana’s total.

The political realities in fossil fuel production states should not blind us to the importance of the youth’s victory in this case. In addition to the main decision, the court also found that the young plaintiffs met the criteria for judicial standing – meaning that they could show that they had been injured in ways that were fairly traceable to Montana’s actions, and that a favorable decision could provide meaningful redress of their harms. Establishing standing has been a difficult hurdle in some other climate cases. OCT further emphasizes that the decision upholds many constitutional rights that are predicated on a clean and healthy environment, including equal protection, dignity, health and safety, and public trust. The victory also offers inspiration and guidance for legal actions in other states, such as Pennsylvania and Massachusetts, that also designate a healthy environment as a right under their respective state constitutions. And efforts to amend more state constitutions along these lines are ongoing across the country.

In comments to the news site Oregon Live, emeritus professor James Huffman of the Northwestern College of Law, a rare conservative in the ranks of environmental law professors, rather coarsely notes that the ruling “…provides nothing beyond emotional support for the many cases seeking to establish a public trust right, human right or a federal constitutional right” to a healthy environment. This is true so far as it goes, but it doesn’t go very far. Cases based on constitutional and public trust rights are particularly challenging to bring: although the public’s right to common natural resources has roots in ancient Roman and English law, its applicability in the US has mainly been limited to navigable waters. The US Supreme Court certainly does not recognize federal public trust rights in the atmosphere. And of course, the US Constitution contains no explicit clause asserting the rights of citizens to a healthy environment, as Montana’s Constitution does.

In fact, cases based on the theories mentioned by Huffman make up only part of the litigation seeking to hold fossil fuel companies liable for damages from climate change. More prominent are cases brought by municipalities and states against fossil fuel companies, seeking the payment of damages for destruction wrought by climate change. These cases are sometimes based on public nuisance law, and may also involve violation of consumer protection, product liability or even racketeering laws. A key unifying element in these cases is the well-documented, willful promotion of climate disinformation and deception by companies such as ExxonMobil. The states and cities argue that they should not have to bear the full burden of paying for the costs of climate change damage, while the industries that created the crisis incur no costs for their disinformation campaigns.

There are now dozens of these cases brought by cities and states throughout the country, and they have been enmeshed for years in procedural delays. Although brought in state courts, the fossil fuel company defendants have been seeking to have them adjudicated at the federal level, where they think they will be more likely to succeed. But it is now clear that this strategy is failing; in case after case, federal circuit courts of appeal have indicated that state venues are perfectly appropriate, and a few months ago, the Supreme Court declined to hear the companies’ continued petitions.

Many cases now have a green light to proceed at the state level. Among them is County of Maui v. Sunoco LP, filed in October, 2020. Maui alleges that defendant companies were directly responsible for the rise in CO2 emissions from 1965 to the present, and but for their participation in “denialist campaigns” to mislead the public, the impacts of climate change “would have been substantially mitigated or eliminated altogether.” The recent devastating Maui wildfires, connected to flash droughts that are made more likely by climate change, have claimed over 100 lives. Estimated damages already exceed five billion dollars.


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Earthward is written by Dr. John Perona and is an outgrowth of the climate education work begun with From Knowledge to Power: The Comprehensive Handbook for Climate Science and Advocacy (K2P).