On August 14, a group of sixteen young people from Montana, United States, (ages 5 to 22), emerged victorious from a pioneering climate trial of its kind after suing the state because it was doing little for a healthy environment.
The case Held v. the state of Montana argued that state energy policies were violating the constitutional right of the young plaintiffs to “a clean environment and healthy,” which is a right enshrined in the Montana Constitution since the 1970s. The plaintiffs alleged that state laws that promote fossil fuel extraction and prohibit consideration of climate impact during environmental review violate their constitutional right to the environment.
Judge Kathy Seeley’s favorable sentence for young people sets a powerful precedent on the role of “green amendments” in climate litigation.
The lawsuit, heard by a Montana district court, was the first in the United States to rely on the constitutional right of a right to a clean and healthy environment to challenge state policies that fuel climate change. The success of the Held case will not be the last in this area.
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green amendment
Pennsylvania, Montana, Hawaii, Massachusetts, and Illinois all amended their state charters during the environmental movement of the 1970s.
The United States Constitution does not contain a Green Amendment, but several state constitutions do. Pennsylvania, Montana, Hawaii, Massachusetts, and Illinois amended their state charters during the environmental movement of the 1970s to recognize people’s right to a clean and healthy environment. Since these green amendments are constitutional provisions, they serve as limits on what the government can do.
Early cases in Pennsylvania and Illinois testing these newly recognized constitutional rights met with little success.. In the 1990s, the Illinois Supreme Court had gutted the Illinois Green Amendment, concluding that environmental law did not provide a basis on which a citizen could sue.
(Keep reading: 21st century mining boom in the tropics degrades rivers in 49 countries)
However, in 1999, when the green amendments were all but forgotten, a single case in Montana quietly vindicated the constitutional right of Montaneans to a clean and healthy environment.
It was submitted by local environmental groups concerned about the quality of water from a gold mine. At the time, Montana environmental law allowed the state to issue permits for projects that would release pollutants into Montana waters without conducting any environmental studies. The Montana Supreme Court found that the law violated the fundamental right of Montananese to a clean and healthy environment and was unconstitutional.
The next success of the green amendment took 14 years and occurred in Pennsylvania. In the early 2010s, Pennsylvania enacted a state law giving the oil and gas industry the right to initiate hydraulic fracturing, 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 this state law for violating the constitutional right of Pennsylvanians to a clean and healthy environment.
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The Pennsylvania Decision it triggered an explosion of interest in ecological amendments.
In Hawaii, interest groups have begun challenging the state’s approval of carbon-intensive power generation, claiming it violates Hawaiians’ right to a clean and healthy environment. The state is now relying on its green amendment to reject new sources of electricity carbon-intensive plants to power Hawaii.
In 2022, New York became the first state since the 1970s to adopt a green amendment.. Currently, Arizona, Connecticut, Iowa, Kentucky, Maine, Nevada, New Jersey, New Mexico, Tennessee, Texas, Vermont, Washington, and West Virginia are considering adopting green amendments.
success in Montana
Based on the extensive scientific evidence presented at trial in June, Judge Seeley found that Montana youth are being hurt by climate change taking place in that state and that those effects of climate change can be attributed to the state law that the plaintiffs were challenging.
(Read more: The early melting of Antarctica decimates the emperor penguins)
Seeley also determined that declaring state law that prohibits consideration of weather effects during environmental review unconstitutional would further alleviate the harm to youth. For these reasonsstruck down the state law as unconstitutional.
This result sets an unprecedented precedent in climate litigation and demonstrates a new way of invoking the green amendments to bring about environmental change. It suggests that in other states with green amendments, state laws may not prohibit consideration of greenhouse gas emissions and their climate impact during environmental review.
However, Seeley made it clear well before the trial that he has no power to order the state to come up with a remedial plan. to deal with climate change.
In addition, the Montana legislature struck down state policies promoting fossil fuel extraction just two months before the trial began, and a judge cannot, in general, rule on the constitutionality of a repealed law. Therefore, whether state policies that promote the extraction of fossil fuels violate the constitutional right of the population to a clean and healthy environment is a matter for another day and another case.
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Impact on litigation
It’s unclear how a victory for Montana youth will play out in federal climate litigation. The recently revived federal youth climate case Juliana v. United States is based on the Fifth and Ninth Amendments to the United States Constitution, as well as on the common law public trust doctrine.
Neither the Fifth Amendment nor the Ninth Amendment are considered environmental rights similar to an ecological amendment. However, the public trust doctrine has been relevant in the green amendments case law of some states.
In states that have green amendments, climate advocates will no doubt build on the case of Montana youth when challenging state laws that promote climate change.
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In recent years, we have seen an erosion of our environmental laws through politics and the courts. This has fueled new legal claims for environmental rights in the United States.Canada and other countries.
In the future we will continue to see cases, such as Held v. State of Montana, in which rights-based approaches are invoked to address environmental issues.
AMBER POLK
THE CONVERSATION (**)
Assistant Professor of Law at Florida International University.
(**) It is a non-profit organization that seeks to share ideas and academic knowledge with the public. This article is reproduced here under a Creative Commons license.
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