[Judge Kathy Seeley’s ruling in the youths’ favor sets a
powerful precedent for the role of “green amendments” in climate
litigation. ]
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MONTANA KIDS WIN HISTORIC CLIMATE LAWSUIT  
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Amber Polk
August 15, 2023
The Conversation
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_ Judge Kathy Seeley’s ruling in the youths’ favor sets a
powerful precedent for the role of “green amendments” in climate
litigation. _

The young plaintiffs in Held v. State of Montana, ages 5 to 22, walk
to the courthouse with their lawyer., William Campbell/Getty Images

 

Sixteen young Montanans who sued their state
[[link removed]] over climate change emerged victorious on
Aug. 14, 2023, from a first-of-its-kind climate trial.

The case, Held v. State of Montana, was based on allegations
[[link removed]] that state energy policies
violate the young plaintiffs’ constitutional right to “a clean and
healthful environment” – a right that has been enshrined in the
Montana Constitution
[[link removed]] since
the 1970s. The plaintiffs claimed that state laws promoting fossil
fuel extraction and forbidding the consideration of climate impacts
during environmental review [[link removed]] violate
their constitutional environmental right.

Judge Kathy Seeley’s ruling in the youths’ favor
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sets a powerful precedent for the role of “green amendments
[[link removed]]” in climate
litigation.

The lawsuit, heard in Montana district court, was the first in the
U.S. to rely on a state’s constitutional right to a clean and
healthful environment to challenge state policies that fuel climate
change. In light of the success in Held, it won’t be the last.

What is a green amendment?

The U.S. Constitution does not contain a green amendment, but several
state constitutions do.

Pennsylvania, Montana, Hawaii, Massachusetts and Illinois all amended
their state constitutions during the environmental movement of the
1970s to recognize the people’s right to a clean and healthful
environment. Because these green amendments are constitutional
provisions, they function as limits on what government can do.

Early cases in Pennsylvania [[link removed]]
and Illinois
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testing these newly recognized constitutional rights saw little
success. By the 1990s, the Illinois Supreme Court had eviscerated
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Illinois’ green amendment, concluding that the environmental right
did not provide a basis upon which a citizen could bring a lawsuit.

In 1999, however, when green amendments were all but forgotten, a
single case in Montana quietly vindicated
[[link removed]] Montanans’
constitutional right to a clean and healthful environment.

It was brought by local environmental groups over water quality
concerns at a proposed gold mine. At that time, Montana’s
environmental laws allowed the state to issue permits for projects
that would discharge pollutants into Montana waters without conducting
any environmental review. The Montana Supreme Court determined that
such a law violated Montanans’ fundamental right to a clean and
healthful environment and was unconstitutional.

[A group of people hikes through a forest with dead trees on one
side.]
Montana’s forests are facing new threats as temperatures rise.
Whitebark pine, a foundational species, are increasingly at risk from
diseases and insects that previously couldn’t thrive in the
high-mountain habitat. Chip Somodevilla/Getty Images
[[link removed]]

The next green amendment success
[[link removed]] took 14
years and occurred in Pennsylvania. In the early 2010s, Pennsylvania
enacted a state law that gave the oil and gas industry the right to
commence hydraulic fracturing
[[link removed]],
or fracking, anywhere in the state. This law prevented local
governments from making land use decisions to restrict or limit
fracking in their jurisdictions. The Pennsylvania Supreme Court struck
down [[link removed]] this
state law as violating Pennsylvanians’ constitutional right to a
clean and healthful environment.

That Pennsylvania decision ignited an explosion of interest in green
amendments.

In Hawaii, public interest groups began challenging the state’s
approval of carbon-intensive electricity generation on the ground that
it violates Hawaiians’ right to a clean and healthful environment.
The state now relies on its green amendment to reject new
carbon-intensive electricity sources
[[link removed]]
for powering Hawaii.

In 2022, New York [[link removed]] became the first state
since the 1970s to adopt a green amendment. Currently, Arizona
[[link removed]], Connecticut
[[link removed]],
Iowa [[link removed]],
Kentucky [[link removed]],
Maine
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Nevada
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New Jersey [[link removed]], New
Mexico
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Tennessee
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Texas
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Vermont [[link removed]],
Washington
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and West Virginia
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are considering adopting green amendments.

Success in Montana

Based on the extensive scientific evidence presented at the trial in
June, Judge Seeley found that the Montana youth are being harmed by
climate change occurring in Montana and that those climate change
effects can be attributed to the state law the plaintiffs challenged.

Seeley also determined that declaring the state law forbidding the
consideration of climate impacts during environmental review
unconstitutional would alleviate further harm to the youth. On these
grounds, she struck down the state law as unconstitutional.

This result sets a groundbreaking precedent for climate litigation and
demonstrates a new way in which green amendments can be invoked to
elicit environmental change. It suggests that in other states with
green amendments, state laws cannot forbid the consideration of
greenhouse gas emissions and their climate impact during environmental
review.

[A silhouetted family watches as smoke rises from the Robert Fire in
Glacier National Park, near West Glacier, Montana]
Wildfire smoke has become an unwelcome part of life during summer and
fall in parts of Montana. Robin Loznak/Getty Images
[[link removed]]

However, Seeley made it clear long before trial that she does not have
the power [[link removed]] to order the
state to create a remedial plan to address climate change.

Further, the Montana legislature repealed
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the state policies promoting fossil fuel extraction just two months
before the trial began, and a judge cannot generally rule on the
constitutionality of a repealed law. So, whether state policies
promoting fossil fuel extraction violate the people’s constitutional
right to a clean and healthful environment is a question for another
day and another case.

A spokeswoman for Montana’s attorney general said the state plans to
appeal
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Seeley’s ruling.

Impact on federal climate litigation

It is unclear how the Montana youths’ victory will influence federal
climate litigation. The federal youth climate case Juliana v. United
States [[link removed]],
which was recently revived, relies on the Fifth and Ninth amendments
to the U.S. Constitution, as well as the common law public trust
doctrine [[link removed]]. Neither the Fifth
Amendment nor the Ninth Amendment is considered environmental rights
akin to a green amendment. However, the public trust doctrine has been
relevant in some states’ green amendment jurisprudence
[[link removed]].

In the states that have green amendments, climate advocates will
certainly rely on the Montana youth case as they challenge state laws
that promote climate change.

In recent years, we have witnessed an erosion of our environmental
laws through politics
[[link removed]]
and the courts
[[link removed]]. That
has fueled new legal claims of environmental rights
[[link removed]]
in the U.S., Canada
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and other countries.

This phenomenon is the focus of my research
[[link removed]], of which green amendments
are just a part. I believe we will continue to see cases, like Held v.
State of Montana, invoke rights-based approaches to tackle
environmental problems in the future.

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