Montana Supreme Court Holds Constitutional Right to Clean Environment Free From Effects of Climate Change

The average global surface temperature has increased by around 2°F since 1900. This coincides with a sharp increase in C02 emissions for the same period. The increased temperature has led to more extreme weather events. The countries burning the most fossil fuels, which scientists believe is the largest contributor to climate change, are falling behind on their goals to reduce emissions established in the Paris Accords.

All of this is making a lot of people worried. Particularly young people. That's why several have attempted to take matters into their own hands through the legal system by filing lawsuits against oil companies and governments. Most of these lawsuits (at least in the U.S.) have met with little success. Until now.

Montana's Progressive Environmental Protections

According to the Montana Supreme Court, the state's lack of concern for greenhouse gas emissions violates the state constitution. However, the Montana Constitution has some unique provisions.

Under Article II, Section 3, all state residents have an inalienable right to "... a clean and healthful environment.” Further, Article IX, Section 1 holds that:

• "The state ... shall maintain and improve a clean and healthful environment in Montana for present and future generations (emphasis added)
• The legislature shall provide adequate remedies for the protection of the environmental life support system from degradation and provide adequate remedies to prevent unreasonable depletion and degradation of natural resources"

This is not a universal protection in state constitutions. There is no similar provision in the U.S. Constitution, and only Hawaii, Illinois, Massachusetts, Montana, Pennsylvania, and Rhode Island contain a similar right to a quality environment. New York was the latest state to enact such a provision in 2021. While almost every state has something related to the environment in its constitution, such as provisions relating to navigable waters, few grant a clean environment as a right.

Does climate change count as environmental degradation? According to the Montana Supreme Court, yes. Montana courts have determined that the Montana Constitution contains "the strongest environmental protection provision found in any state constitution."

Effects of Climate Change

Before getting to the legal arguments, it's important to note that the plaintiffs, 16 young Montana residents, proved that C02 emissions are harming the Montana environment during the trial in district court. Some ill effects of climate change include:

• Harming the air of the Bob Marshall wilderness
• Polluting the water and clear air in the Bull Mountains
• Creating a "wildfire stench" in Missoula and the rest of the state due to increased forest fires

During the trial, the district court made "undisputed findings of fact that GHG emissions are drastically altering and degrading Montana’s climate, rivers, lakes, groundwater, atmospheric waters, forests, glaciers, fish, wildlife, air quality, and ecosystem." The district court is the fact-finding court. The question before the Montana Supreme Court on appeal wasn't whether environmental degradation due to climate change was occurring. Instead, the questions before Montana's highest court were whether:

• Freedom from climate change was a constitutional right
• The plaintiffs even had the right to bring the lawsuit (standing)
• Montana state law preempted the lawsuit

The state did not contest that climate change is occurring or that greenhouse gas emissions contribute to it. No defendant in these types of lawsuits has ever thought contesting climate change on the merits was worth pursuing.

One-of-a-Kind Ruling

The Montana state government argued that the state constitution's right to a "clean and healthful environment" did not include climate change and was more about direct pollution of rivers, lakes, and air. In addition, the defendants argued the state legislature preempted this lawsuit under Montana’s State Energy Policy Act. It also claimed that none of the plaintiffs had standing, noting that standing to bring a lawsuit requires a specific, concrete injury, and none of the young people filing suit were directly harmed, at least not any more so than anyone else in the state.

The Montana Supreme Court did not find these arguments persuasive. First, it held that the framers did not intend to prevent only "environmental degradation that could be conclusively linked to ill health or physical endangerment." Instead, it was designed to be a broad right to a clean environment, including protection from the worst consequences of climate change for present and future generations. As for the standing requirement, the court held that the plaintiffs were directly harmed by climate change and that just because it was a harm that applied to everyone equally didn't mean the plaintiffs didn't have standing to bring suit. Finally, the court held that state laws prohibiting the consideration of greenhouse gas emissions or climate impacts during fossil fuel permitting decisions were directly in conflict with this constitutional protection and, therefore, unconstitutional.

What It Means

This is a simplified summary of the case. Ultimately, the decision means that the Montana Legislature must consider the effects of greenhouse gas emissions when conducting environmental assessments and environmental impact reviews under the Montana State Energy Policy Act. The decision does not, however, require the Montana legislature to meet specific emission guidelines, nor does it require other affirmative steps to reduce climate change.

The effect for Montana residents may be limited, but it is a notable decision for climate activists who have routinely been stymied by state and federal courts. And it may, perhaps, lead Montana to embrace lower-emission energy sources in some circumstances.

Related Resources

• Climate Change and the Law (FindLaw's Learn About the Law)
• The Charged Battle Over Trucking in America (FindLaw's Courtside)
• Will U.S. Courts Begin Weighing In on Climate Change? (FindLaw's Courtside)