How significant is the youth-led constitutional climate trial in Montana and what are its implications?
As the first-ever trial in the U.S. in a climate change lawsuit, , set for June 12-23, is historic. Plaintiffs — 鈥� sued the state over its energy policies claiming the state’s actions have violated their constitutional right.
The right they claim is the right to 鈥渁 clean and healthful environment鈥� as mandated by the : 鈥淭he state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations.鈥� They argue that the state government supports, promotes, and prioritizes fossil fuels, impacting climate change and disproportionately harming them. Instead of seeking monetary damages, they are asking the court to declare that Montana’s fossil fuel energy policies and actions violate their state constitutional rights.
For example, the state energy policy, amended in 2011, bars the state from considering climate change when deciding whether to issue new permits for fossil fuel projects. And in May 2023 Montana again passed a law that prohibits state agencies from considering climate change impacts when issuing permits for the building of power plants and coal mines.
In response to the lawsuit, the Montana Attorney General鈥檚 office stated: 鈥淔ollowing the Legislative session, there are no existing laws or policies for the district court to rule on. . . . 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.鈥�
The first youth climate lawsuit in the U.S. was filed in 2011 and several have followed since then. The claims were all dismissed without going to trial. However, recent developments are noteworthy. A Circuit Court judge ruled in April 2023 that a lawsuit could go to trial which was brought by 14 Hawaii youth against the state Department of Transportation claiming that it is not doing enough to curb emissions that contribute to climate change.
A high-profile youth climate lawsuit against the federal government, Juliana v. U.S., could also go to trial. The suit was brought by 21 youths between the ages of eight and 18 in 2015, alleging that the nation鈥檚 leaders were propelling climate change and have violated young people鈥檚 constitutional right to life, liberty, and property. In 2020 the Ninth Circuit Court of Appeals dismissed the suit on the ground that the judiciary does not have the power to enact climate policy that the plaintiffs are seeking and which only the legislative and executive branches can do.
The plaintiffs requested to amend their suit and instead of pursuing a change in policy, they asked for a ruling declaring that the U.S. energy system, which is fossil fuel-based, is unconstitutional. US District Court Judge Ann Aiken allowed the plaintiffs to amend their complaint and hence the case will go to trial. She wrote: 鈥淚t is a fundamental doctrine that when government conduct catastrophically harms American citizens, the judiciary is constitutionally required to perform its independent role and determine whether the challenged conduct, not exclusively committed to any branch by the Constitution, is unconstitutional.鈥�
And on June 16, 2023, 24 young people, both from the U.S. and Canada, submitted an Amicus Brief to the International Tribunal on the Law of the Sea emphasizing that it is critical for the Tribunal to rely on the best available science when interpreting the Law of the Sea鈥檚 Convention obligations of countries to 鈥減revent, reduce, and control pollution of the marine environment from any sources [including] pollution through the atmosphere.鈥�
Held is significant because the judge has heard the evidence from climate experts and, although there will surely be an appeal to the Montana Supreme Court no matter who wins, the courts could possibly be the site for providing the remedy on climate change. The children indeed are well placed to make convincing arguments for holding governments responsible and for intergenerational justice.
Ved Nanda is Distinguished University Professor and director of the Ved Nanda Center for International Law at the University of Denver Sturm College of Law. His column appears the last Sunday of each month and he welcomes comments at vnanda@law.du.edu.
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