Montana Climate Ruling Boosts Case for States’ Green Amendments

Montana youth activists in the first US climate case to make it to trial owe much of their victory to environmental provisions in the state’s constitution, infusing urgency into efforts in other states looking to adopt similar climate rights.

A state judge’s ruling this month that Montana’s energy project permitting laws violate constitutional rights to a healthy environment is a historic win that highlights how affirmative constitutional climate rights—also called green amendments—can be useful in the legal movement to stem emissions.

“It is really going to galvanize these ongoing debates about the value and utility of having a green amendment,” according to Sarah Everhart, a law professor at Widener University. “This is the first time that a green amendment has been used in this specific way, and the ruling is very powerful.”

With state governments that have climate rights already baked into their individual civil liberties, lawyers don’t need to call on other statutory authorities to establish standing to sue, which helps cut down steps necessary for potential success in court.

A climate provision in a state’s bill of rights “makes that green amendment self-executing, meaning that the parties can challenge inaction without any other grant of authority,” Everhart said. “And that’s really important in environmental law.”

Montana, Pennsylvania, and New York are the only states with green amendments in their bill of rights, said Maya K. van Rossum, founder of Green Amendments for the Generations. But none of those states’ amendments specifically mention climate, relying instead on the environment more broadly.

The Held v. Montana decision was so influential because it paves the way for climate issues, not just water and air quality, to be considered part of states’ green amendments, van Rossum said. Since much of the case was spent arguing that same issue, she said more states could learn to use exact wording in future amendments.

“There’s always this risk when you’re not explicit with your language that a judge won’t agree with you,” she said.

Green Amendment Movement

Fifteen states, including New Mexico, New Jersey, and Florida, have active campaigns to codify green amendments. All are in different stages: some have legislation drafted, while others have strong grassroots efforts.

New Mexico state Rep. Joanne Ferrary and state Sen. Antoinette Sedillo Lopez, both Democrats, have proposed a green amendment three times, and the legislation contains climate-and environmental justice-specific language. But they say it hasn’t passed for a few reasons, chief among them being the state’s powerful oil and gas lobby.

“A green amendment strikes fear in their hearts,” Sedillo Lopez said.

The two say they’ll try again in 2024. Grassroots support has been growing for the past few years, which “will help us counter” industry pushback, Sedillo Lopez said.

Montana’s Held decision further galvanized state residents who were already pushing to codify a green amendment, activists say.

“What we’ve seen with the Held case is that we have a tool that is powerful enough to stop industry in its tracks,” said Nicole Olonovich, a New Mexico green amendment activist and political director of the state’s Adelante Progressive Caucus.

In New Jersey, there’s “strong bipartisan support” for a green amendment, said David Pringle, a consultant and green amendment activist.

This isn’t uncommon, van Rossum said. Rural populations, which tend to skew Republican, have “experienced how much a polluted, dirty environment costs them,” just like urban populations have, she said.

Because New Jersey is so industrialized, “we face environmental problems sooner and more significantly,” Pringle said. He’s optimistic that the state will see a green amendment on the ballot in the next couple of years, he said.

Changing Behavior

The US constitution doesn’t explicitly have a right to a stable climate enshrined, presenting a challenge for the landmark youth case at the federal level, Juliana v. US. Attorneys for Juliana have to prove such rights are implied, and are being violated by US government energy policies.

Held v. Montana is the first constitutional climate case to prevail in the US legal system, where climate plaintiffs have had mixed success despite litigating in a country with the most pending global warming lawsuits in the world.

Advocates in other nations have had more success waging human rights-based climate battles, due in part to the fact that many countries already include affirmative environmental rights in their constitutions. Because of youth climate cases like Held, that could start changing in the US, at least within individual states.

“It gives the parties a much stronger foundation upon which to challenge government action, because we have certain civil liberties and constitutionally established rights, that is something that the judiciary takes very seriously,” Widener’s Everhart said.

The relief that’s provided in these types of cases also brings distinct advantages, according to attorney Jeffrey B. Simon, partner at Simon Greenstone Panatier PC.

Simon represents Oregon’s Multnomah County, which is the latest municipality to file a climate misinformation case against oil and gas companies.

Multnomah’s case and others like it across the US are seeking monetary compensation that will gird them for climate impacts, but rulings that declare state behavior unconstitutional like the Held case can spur changes in behavior, Simon said.

“In Montana, it’s not that they can force or did force the defendants to change energy policy,” Simon said. “But if the ruling is upheld, they’re forcing the state to consider greenhouse gas effects in its energy policies, which obviously in its transactional relationships with energy companies probably will result in a change of behavior.”