Montana should have taken a better look at its constitution before deciding to pursue its current climate change-enabling energy policies, because it’s opened them up to a lawsuit from a group of Gen Z activists asserting that the state has violated their constitutional rights.
Montana’s state constitution includes the words, “The state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations.” At this point, the effects of climate change are so undeniable that any policy supporting or enabling the fossil fuel industry—or indeed, anything other than a good-faith attempt to minimize the use of fossil fuels much as possible—is a clear breach of that promise.
Continued usage and export of fossil fuels isn’t just lowering the air quality but exacerbating the cataclysmic rise in global temperatures and all of the environmental disasters that result, from wildfires to dangerous, unseasonable storms and rising sea levels as the ice caps melt. This is undeniable, and yet Montana remains one of the largest coal exporters in the United States, with the mines and fuel companies thriving as a direct result of state policies.
Enter the 16 young Montanans and their lawsuit.
Gathered together by the environmental group Our Children’s Trust, which is managing the lawsuit, the plaintiffs range in age from five to 22 and will be testifying about the material harms they’re facing or have already experienced as a result of the state’s energy policy. Included among the plaintiffs are members of local Indigenous tribes, asthmatics whose breathing has been impacted by forest fires and pollution, and members of a farming family whose access to clean water is under threat. The group aims to demonstrate the wide-ranging impact of the state’s current and former policies on the environment and its citizens, and how this serves as a violation of their constitutional right to “a clean and healthful environment”.
Montana’s Republican Attorney General, Austin Knudsen, has tried to get the lawsuit dismissed on procedural grounds multiple times since it was first filed in 2020. Having previously referred to the case as a publicity stunt, dismissively claiming it was about “shutting down responsible energy development in our state” (one questions his definition of responsible), he gave the following statement to the Vox podcast The Weeds when asked for comment:
Following the legislative session, there are no existing laws or policies for the district court to rule on. 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. This same lawsuit has been thrown out of federal court and courts in a dozen other states — and it should be dismissed here in Montana as well.
Clearly the judges who have heard his attempts dismissed do not agree, as he has yet to find a single one who agreed with him. His most recent attempt came after Montana repealed its energy policy, one of the two laws challenged by the plaintiffs, but also amended another law to prevent the state from considering potential greenhouse gas emissions when granting licenses for projects involving fossil fuels. Knudsen wanted the parts of the suit that dealt with the former energy policy dismissed, as well as for the hearing to be delayed so the state’s lawyers have more time to prepare their defense of that amendment.
While she was willing to allow the parts of the suit dealing with the now defunct policy to be dismissed State District Judge, Judge Kathy Seeley refused to push back the date of the hearing, saying, “I would suggest you continue to prepare for trial. I’m not intending to just stop everything so that we can spend months wrapped around that spoke.”
More significantly however, Seeley also declared that while the courts lacked the power to force the government to consider the impact of greenhouse gases when making legislation, it absolutely does have the power to strike down any statute, like the new amendment, that actively prevents them from doing so. This declaration seemingly walks back at least some of the impact of her 2021 ruling that the courts could only provide “declaratory judgment” on the case; that they had the authority to declare the state to be in violation of its constitution, but not to order the creation of any specific legislation to remedy it, as that was a matter for the executive and legal branches instead.
That was a judgment Jim Huffman, environmental law expert and dean emeritus at Lewis & Cark Law School in Portland, said would render any victory for the plaintiffs largely symbolic, as the state could and likely would ignore the verdict and continue acting as before. Now, however, with this new amendment on the table and Seeley willing to take action to strike it down, the case suddenly has more immediate, tangible stakes than symbolism once again.
As for the rest of the suit, while a declaratory judgment would still have no legislative power, climate activists and legal experts maintain this lawsuit, and any victory that might result, are still significant steps in the fight for legislative action on climate change. This lawsuit is the first to make it to trial in the United States and, as Sandra Nicholas Thiam, a lawyer at the Environmental Law Institute, told the AP, “It’s highly significant that this case is going to trial at all. Getting all of this information on the record will be a major advancement in climate litigation.”
Any victory in this case is also likely to influence the outcome in similar upcoming trials in Oregon and Hawaii as judges look to it for guidance, as well as establish a precedent on whether or not the courts can tell the government to take action on climate change—though, in light of Seeley’s earlier ruling, there’s understandable skepticism about that last part. Currently, Montana’s defense includes the claim that climate change is not man-made, and that the plaintiffs are relying on emotional appeals rather than facts. A verdict in the plaintiffs’ favor will also go a long way in setting a baseline of scientific fact, and eradicating climate denial as a defense when more cases inevitably make their way to court in the future.
The trial begins on Monday.
(featured image: Chip Somodevilla/Getty Images)
Published: Jun 16, 2023 05:58 pm