Know Your Rights (And the Climate’s): Held v. State of Montana as a Catalyst for Enforcing State-Level Green Amendments

Held v. State of Montana is a landmark climate case, decided in August of 2023, in which it was ruled that youth in the state of Montana have the right to a “stable climate system” and that Montana has the duty as a state to act forcibly to reduce climate emissions. While Held marks a turning point for climate justice in Montana, it throws into sharp focus the historic inaction of state governments when it comes to climate change. Its calls for Montana to protect the climate system for the sake of its citizens are important but do not adequately address the processes that would need to occur to thoroughly mitigate this problem in the present and the future. When it comes to litigation against the government, we need to ensure that the victories in the courthouse are eventually preserved in the law, protecting them from changing administrations and securing their place in influencing the country’s future.

The right upheld in the Montana Constitution by Held is the right to a clean and healthful environment. Following the first Earth Day in 1972, Montana passed a “Green Amendment”, a brief addition to their Constitution that specifically outlined the State’s responsibility to “maintain and improve a clean and healthful environment in Montana for present and future generations”. One of the products of the Green Amendment push was the Montana State Environmental Policy Act (MEPA), a largely procedural law that requires the government to examine potential environmental impacts of proposed projects. In April 2023, Montana gutted MEPA, limiting the extent to which the state can consider projects’ environmental impacts, specifically when it comes to climate change, and making it unlawful to evaluate “greenhouse gas emissions and corresponding impacts to the climate in the state or beyond the state’s borders”. This led to sixteen youth plaintiffs immediately suing Montana in the case that would become Held v. State, alleging a violation of Montana’s State Constitution. The plaintiffs in Held focused specifically on “future generations”, and found a sympathetic ear with Judge Kathy Seeley of Montana’s first Judicial District, who ruled in their favor. 

Prior to Held, attempts by youth to take on government inaction towards climate change have been shot down in court. Juliana v. United States, a federal lawsuit led by youth activists filed in 2015, attempted to invoke the Fifth and Fourteenth Amendments, which outline a US citizen’s rights to “life, liberty and property”, to demand government protection of natural resources and the environment under the theory that these are collective public goods. Juliana was ultimately rejected for lack of standing by the Ninth Circuit Court of Appeals, citing failure to state a cognizable constitutional claim. It may return to the Courts as plaintiffs are currently amending their complaint. Held provides a glimmer of hope in the dark context of climate change cases and may have more of an impact than its predecessors.

Other states have Green Amendments in their constitutions and have the capacity to host the next Held. Pennsylvania, Illinois, Hawaii, Massachusetts, and New York have all specified that a healthy environment is something their citizens are entitled to. Most of these Green Amendments, like Montana’s, originated in the 1970s after the first wave of mainstream environmental activism in the United States. New York State is the exception, as its Green Amendment only passed last year. Almost as soon as they were passed, cases in Illinois and Pennsylvania tested the extent of these new rights, with little success. In 1975, a street widening project was implemented in Wilkes-Barre, Pennsylvania, at the expense of a small park and several established trees. The Green Amendment was invoked to stop the changes, but this claim was rejected, setting the very vague precedent that, if environmental harm could not be eliminated, it had to be “minimized”. Later that year, in Illinois, a statute was passed to allow fluoridation of the water in Madison County, IL, despite complaints about possible impacts on the environment. This resulted in a new precedent in Illinois that statutes impacting the environment could not be scrutinized more critically than statutes that did not impact the environment. In the 1990s, the Green Amendment in Illinois became functionally useless. In 1988, the office of Cook County in Illinois granted a special permit for a landfill to be built on a site that contained standing water: a project that had twice been denied a required permit from the Army Corps of Engineers pursuant to the Clean Water Act. When several towns and cities within the County tried to invoke the state’s Green Amendment to invalidate the special permit, the Illinois Supreme Court decided that environmental right was not a basis on which a citizen could bring a lawsuit, effectively eliminating the use of that Amendment. While Green Amendments have historically been reduced to formality, the Held decision may reinvigorate their legal power.

Environmental law is something that has historically been very difficult to establish and enforce. Generally speaking, legal standing is almost impossible to prove about an overarching environmental issue like climate change. A key issue that arises with standing is proving that an injury caused by an environmental issue exists. Cases that deal with specific instances of pollution, such as Anderson v. W.R. Grace & Co., usually have measurable effects on a population, but when the threat is as existential as climate change, immediate effects may not impact individuals in a way that a court will recognize. The injury must also be personal enough to differentiate the person from the general public or even the rest of the world. Massachusetts v. EPA held that the petitioners lacked standing because their complaints, against global warming caused by unregulated vehicle emissions, harmed humanity at large and not specifically themselves as Americans, thus removing the responsibility for action to regulate emissions from the United States government. In Held v. State, there was a break from the precedent of specific personal injury, as Judge Seeley considered climate-induced factors like the “reduced snowpack” which strains both the natural water and grasses needed to fuel Montana’s cattle industry as an injury against the state as a whole. This extends environmental injury to everyone who currently resides in the state, or who will in the future, providing a new and more encompassing precedent in considering the impacts of environmental changes on a population. Implementing policies that would eliminate the need for constant lawsuits has also been a challenge. One example of this is in New York State’s Climate Leadership & Community Protection Act (CLCPA), a sweeping climate overhaul of the state government, which, despite having passed in 2019, is still floundering with both enforcement and funds. Suspicion from both industrial and state actors, and a failure to adhere to the guidelines that the CLCPA put into place, have caused reality to fall short of the ambitious policies that it espouses.

While Held was upheld, action still needs to be taken to ensure it is properly enforced. This could include investment of state workers’ retirement funds into green energy, updates to state laws to include newly recognized pollutants, or overhauls of local power grids so they rely on renewable produced electricity rather than greenhouse gasses. The most important thing about all of these possible endeavors is that they are codified into concrete and protected legislation. The State of Montana plans to appeal the recent decision, and while it has not filed a brief yet, the coming developments will control the legacy of Held. Since the decision, the MEPA limitation has been declared unconstitutional and blocked, and the rulings surrounding personal injury, public health, and redressability have opened up new possibilities for litigation surrounding climate change down the road. 

There are some more climate cases similar to Held to watch in the coming months. One of the most notable is Navahine F. v. Hawai’i Department of Transportation, another case involving youth plaintiffs. Italleges that the establishment, operation, and maintenance of Hawai’i’s State Transportation System violates the public trust doctrine and the right to a clean and healthful environment established in the Hawai’i State Constitution. Trial dates have been set for June 24-July 12, 2023, and the verdict is highly anticipated. There is a great deal riding on the Navahine case for Hawai’i, but more locally, another complaint has been filed by the Clean Air Coalition of Western New York and the Sierra Club in New York State in response to a New York Public Service Commission (NYPSC) decision. The decision effectively stripped the CLCPA of the ability to protect disadvantaged communities, one of the key tenets of the Act, by stating that the consideration of disadvantaged communities was “beyond the scope of the review undertaken” when considering the sale of the Fortistar power plant to a private corporation in order to mine cryptocurrency. The increased use of the power plant for this purpose could increase emissions by up to 3500%, as well as massively increase pollution in nearby regions. With the potential to give teeth to the CLCPA, the Clean Air case is another that potentially provides some hope for the power of environmental legislation, though it is still in its early stages, having just been filed in Albany County.

It is an unprecedented time in history for climate-based litigation, and every new case that comes to court is vital for the future of our planet. When it comes to holding states and nations accountable for acting against climate change, the only practical way forward is through the courts, where legislation becomes solidified and enforcement of climate-forward policies becomes compulsory. While recent victories like Held v. State provide hope for the future, it is unwise for the climate movement to rest on our laurels, as many more cases are coming down the docket that require action and attention.

Edited by Sacha Elan Toberoff