In June, we reported on the case of Held vs Montana, a suit initiated by several young climate activists who sued the state, claiming it has breached its duty to provide the citizens of Montana with a “clean and healthful environment.”
Article IX of the Montana Constitution, which is entitled Environment And Natural Resources, states:
In Section 1 — Protection and Improvement, Article IX:
(1) The state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations.
(2) The legislature shall provide for the administration and enforcement of this duty.
(3) 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.
In the 2023 session of the Montana legislature, Republicans passed new laws that attempted to limit the effect of that section of the state’s constitution. In its ruling, the court brushed aside those new laws as being clearly unconstitutional.
Montana has the largest reserves of recoverable coal in the nation and has a flourishing oil and methane gas industry. The Guardian reports that its greenhouse gas emissions exceed those of some nations.
During a 5-day trial, Roger Sullivan, the lead attorney for the young plaintiffs, claimed that climate change is fueling drought, wildfires, extreme heat, and other environmental disasters throughout Montana, all of which are taking a major toll on the young plaintiffs’ health and well being. There is a “scientific consensus,” he noted, that these changes can be traced back to the burning of fossil fuels.
Montana assistant attorney general Michael D. Russell told the court, “Climate change is a global issue,” and that whatever emissions Montana may be responsible for, they are “too minuscule” to have any impact on the fact that the Earth is getting hotter.
Montana Court Rules For Plaintiffs
On August 14, 2023, Judge Kathy Seeley ruled in favor of the young plaintiffs. According to the Washington Post, the court determined that a provision in the Montana Environmental Policy Act passed recently by the state legislature that prevents state agencies from taking climate change into account when considering requests for oil and gas drilling permits has harmed the state’s environment and the young plaintiffs by preventing Montana from considering the climate impacts of energy projects. The provision is accordingly unconstitutional, the court said.
“My initial reaction is, we’re pretty over the moon,” Melissa Hornbein, an attorney at the Western Environmental Law Center who represented the plaintiffs in the 2020 lawsuit, told The Guardian. “It’s a very good order.”
The state of Montana chose not present a defense to the suit, relying instead on snarls and invective to make its point, which was that this is a political question that should be decided exclusively by the state legislature and the court should butt out. Instead, Judge Seeley decided to butt in, and in no uncertain terms.
There is a certain irony that the men of the state legislature should be dressed down by a women judge. Ouch! Assistant attorney general Russell derided the case in his closing statement as a “week-long airing of political grievances that properly belong in the Legislature, not a court of law.”
“People around the world are watching this case,” Michael Gerrard, the founder of Columbia’s Sabin Center for Climate Change Law, told the Washington Post. He went on to say the decision by the state not to mount a defense was a big surprise. “Everyone expected them to put on a more vigorous defense. They may have concluded that the underlying science of climate change was so strong that they didn’t want to contest it.”
Appeals Are Inevitable
This a ruling by a trial court. The decision of the court is sure to be appealed. The question now is whether an appellate court will have the courage to interpret the law or will knuckle under to political considerations. All judges were politicians first, and although they often serve for life, they retain their allegiance to those who elevated them to the bench in the first place long after they are anointed.
Several legal experts told the Washington Post the favorable verdict for the youths could influence how judges approach similar cases in other states and prompt them to apply “judicial courage” in addressing climate change.
The plaintiffs’ attorney, Phil Gregory, said the court’s verdict could empower youth everywhere to take to the courts to secure their futures. “There are political decisions being made without regard to the best scientific evidence and the effects they will have on our youngest generations. This is a monumental decision,” he said.
The nonprofit law firm Our Children’s Trust, which represents the plaintiffs, has taken legal action on behalf of youths in all 50 states, and has cases pending in four other states. It also represents the young plaintiffs in the US federal court in the case of Juliana Vs United States. Actually, the plaintiffs in that case may be ready for Social Security by the time the case is finally heard. It began in 2015 and is still waiting to go to trial, thanks to a flotilla of defense motions filed by the defendants, many of whom are some of the world’s largest fossil fuel companies.
The Takeaway
The decision in Held Vs. Montana highlights the interaction between law and policy. The spineless members of the Montana legislature for years have been kowtowing to the interests of the fossil fuel companies in an attempt to brazenly push the plain language in Article IX aside. Ordinarily, such efforts would be doomed to failure, but the US Supreme Court has just concocted a new tool that rabid right-wing Republicans can use to tilt the legal process in their favor.
It is called the “major questions” doctrine and it says that the legislature has priority when it comes to setting policy that involves major questions of law. And what are major questions? They are whatever five members of the Supreme Court say they are. And if the Supremes in their infinite wisdom should determine that a legal action involves such a major question, the court says it is now OK to duck its constitutional duty and throw the ball back to Congress to take appropriate action.
If Juliana Vs US ever gets before the Supreme Court, that august body can now invoke the “major questions” doctrine and pass the hot potato to the Congress to handle. It’s a setup that anyone who is paying attention can see coming a mile away.
So for now, a small but significant victory for climate justice has been achieved. But the forces of evil spawned by fossil fuel companies will never rest until the last molecule of coal, oil, and methane had been liberated from beneath the surface of the Earth, by which time the human race will be all but extinct except for a small contingent of super wealthy tech entrepreneurs waiting out the climate apocalypse in their underground bunkers in New Zealand.
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