Legal Right to Safe Climate Goes on Trial in Montana Youth Case

A landmark climate trial that will reverberate in states and litigation across the US is set to begin Monday, when more than a dozen young people face off with the state of Montana at Lewis and Clark County District Court.

The 16 plaintiffs, led by the legal nonprofit Our Children’s Trust, sued the Montana government in 2020 claiming the state—the nation’s fifth-largest coal producer—must be held liable for homes and land degraded by climate change.

The case sets “powerful precedent,” according to Maya van Rossum, founder of the Green Amendment for the Generations national movement.

“This will be the first case that really is being robustly pursued purely on the grounds of the right to a safe climate and that being a constitutionally protected entitlement,” Rossum said.

Their case hinges on legal language that makes Montana unique among many states. A healthy and safe environment is enshrined in its constitution, something that is codified in only two other state bills of rights: Pennsylvania and New York. This affirmative human right is a cornerstone framework for the Held v. Montana complaint, which could open the door to even more legal action.

“Regardless of what the outcome is, it’s going to strengthen the efforts of advocates to establish some kind of right to sue” under state environmental provisions, Northeastern University law professor Martha Davis said.

State of Play

Montana has taken steps to derail the trial through administrative moves that would render the case unnecessary.

Gov. Greg Gianforte (R) in March signed a repeal of the State Energy Policy, a law that plaintiffs say “degraded and depleted Montana’s environment” and caused “substantial harm to Youth Plaintiffs in violation of their constitutional rights.”

That repeal came alongside alterations to Montana’s Energy Policy Act.

Those two actions make the youths’ lawsuit moot, according to Attorney General Austin Knudsen (R).

His office filed a writ of supervisory control to the Montana Supreme Court on June 5, which insists “there are no relevant facts to find, and there are no existing Montana laws or policies for the District Court to interpret, apply, or attempt to fashion some form of relief.”

“Following the legislative session, there are no existing laws or policies for the district court to rule on,” according to a statement from Emily Flower, spokeswoman for Attorney General Knudsen.

“A show trial on laws that do not exist, as the district court seems intent on holding, would be a colossal waste of taxpayer resources,” she said in an email.

The state Supreme Court denied the request on June 6, ruling that “trial, with preparation literally years in the making, is set to commence less than a week from now; we are not inclined to disturb the District Court’s schedule at this juncture.”

Judge Kathy Seeley—who will be presiding over the trial—can only provide declaratory, rather than injunctive relief should the plaintiffs prevail. This means a victory for the plaintiffs would at best be a court statement that Montana violated the constitution, rather than an affirmative order to do something about emissions.

The trial, which begins on June 12, will continue through June 23 at the First Judicial District Court in Helena.

Human Rights Nexus

The lawsuit is part of a thicket of US youth climate cases, including the landmark national lawsuit Juliana v. US. Youth activists use the cases to push governments on climate action through constitutional frameworks, testing legal actions that are more common among international litigants.

Climate rights cases are now ubiquitous globally, and some of the biggest cases against energy giants and national governments have been met with success.

Royal Dutch Shell and the government of the Netherlands have both lost challenges brought by environmental advocates pushing for emissions reductions.

Rights-based cases around climate are harder to bring successfully on the US legal stage, and Juliana v. US has the highest profile among such cases currently pending in domestic courts. Because a right to a healthy environment isn’t explicit in the US Constitution, Juliana v. US had struggled to make it to more advanced stages of litigation, such as discovery.

Judge Ann Aiken of the US District Court for the District of Oregon changed that trajectory last week, when she revived the case for trial under an amended complaint.

But state-based constitutional cases such as Held v. Montana and other youth cases have advanced further than Juliana, partly because state constitutions are easier to amend than the federal one.

“This is a feature of state constitutions, they tend to address issues that were left out of the federal constitution, like education or like welfare,” Davis said.

Pennsylvania, New York, and Montana are currently the only states with a healthy environment provision in their bill of rights, but other states do have similar provisions that can be used for rights-based environmental litigation.

Challengers in Hawaii successfully won two victories this year under constitutional language that says every citizen “has the right to a clean and healthful environment, as defined by laws relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources.”

The Hawaii Supreme Court in March rejected a challenge from a biomass power plant developer, ruling that its contested project flew against the affirmative right “to a life-sustaining climate system.”

And in April, another youth climate case from Our Children’s Trust was greenlit for a September trial, becoming the second in US history.

“What’s happening in the states here, what’s happening in Montana is really part of a very broad movement of youth, especially, but also people that are being affected, to say it’s really up to government to take this more seriously and show us what they’re doing to try to mitigate,” Davis said.

The case is Held v. Montana, Mont. Dist. Ct., No. CDV-2020-307.