Montana Lawsuit Confronts States’ Responsibility for Climate Change

UPDATE: On August 14, 2023, the judge in the case ruled for the plaintiffs, finding that the state’s policies promoting fossil fuels without considering the impact on climate change violated the state constitution.

The nation’s first constitutional climate trial is set to begin on June 12 in a Montana state courthouse. In Held v. State of Montana, 16 plaintiffs ranging from toddlers to teenagers claim that Montana’s fossil fuel–friendly energy policies violate the state constitution’s guarantee of “a clean and healthful environment.” The case will be a key test of the impact that environmental rights inscribed in state constitutions can have on state actions that contribute to the climate crisis.

At issue are state policies promoting fossil fuel production, transportation, and use, including the State Energy Policy and a provision in the Montana Environmental Policy Act that exempts government projects from having to assess their impact on climate change. The plaintiffs identify a wide range of adverse climate impacts in Montana that affect their physical and mental health, livelihoods, and futures, such as rising temperatures, wildfires, glacial melt, and worsening droughts. They are asking the judge to acknowledge the connection between the state’s actions and their injuries and to order the state to protect against climate destabilization to satisfy its constitutional obligations.

But what does it take to give teeth to a constitutional provision as ambitious and underexamined as the Green Amendment adopted by the state’s 1972 constitutional convention? On the motion to dismiss, the trial court held that there was “a genuine factual dispute” over whether the state’s actions were a “substantial factor” in the plaintiffs’ injuries, even as it acknowledged the national and global prevalence of emission sources.

That means the plaintiffs must prove a causal connection between the state’s actions, global climate change, localized climate impacts, and their individual harms. As a result, the trial will be a major stage for the nation to see contemporary climate attribution science, which links climate change to both slow onset changes in the environment and more immediate, short-term, extreme events.

One key issue will be whether the state is responsible both for emissions within the state and downstream emissions from fossil fuels extracted in the state and transported elsewhere, or whether it is responsible only for emissions within its territory. Another key issue will be whether the distinction matters. According to plaintiffs, every ton of greenhouse gas emissions contributes to the climate crisis, a view consistent with that of the United Nations Intergovernmental Panel on Climate Change. The state, on the other hand, contends that whatever emissions it is responsible for are, in the grand scheme, inconsequential, and that no specific harms can be traced back to them. (For some background on these causation issues, see The Law and Science of Climate Change Attribution.)

In addition to proving Montana’s policies contributed to their injuries, the plaintiffs will have to show that a court order is capable of redressing those wrongs. On this point, they will seek to prove that reducing Montana’s emissions will mitigate their injuries.

Finally, even if the plaintiffs prove causation and redressability, they must still persuade the state court that the state’s constitutional “right to the environment” protects against these particular climate-related harms.

Held may be the first case to put these issues to trial, but courts in the United States have touched on them to varying degrees in different contexts. For example, in its 2007 decision in Massachusetts v. EPA, the U.S. Supreme Court drew on documentary evidence and expert reports to conclude that the loss of state property due to sea level rise could be traced to the Environmental Protection Agency’s decision not to regulate emissions from motor vehicles. The Court noted that U.S. vehicles then generated approximately 6 percent of worldwide emissions, a “meaningful contribution” to global emissions. The Court acknowledged that regulation would not solve the climate crisis but could provide partial redress.

In Juliana v. United States, in which youth plaintiffs from across the country claimed that federal policies and actions violated the U.S. Constitution’s due process protections, the district court, presented with more than 1,000 pages of evidence on the nature and causes of the climate crisis, found triable issues of fact pertaining to causation and redressability. The Ninth Circuit Court of Appeals reversed, finding that while causation did present a triable issue, it was beyond the court’s power to grant the plaintiffs the requested relief — a nationwide plan for carbon drawdown.

In each instance discussed above, courts have seen through the “drop in a bucket” defense, in which governments argue that climate change is simply too big for anyone to be held responsible under the law. This issue has also been addressed at length in a special report by David Boyd, the United Nations’ special rapporteur on human rights and the environment. As U.S. district Judge Josephine Staton, writing in dissent in Juliana, explained it:

“The right at issue is not to be entirely free from any climate change. Rather, plaintiffs have a constitutional right to be free from irreversible and catastrophic climate change. . . . Practical redressability is not measured by our ability to stop climate change in its tracks and immediately undo the injuries that plaintiffs suffer today — an admittedly tall order; it is instead measured by our ability to curb by some meaningful degree what the record shows to be an otherwise inevitable march to the point of no return.”

So what is likely to happen? It is difficult to say. None of the decisions discussed above are binding on Montana state courts interpreting the Montana Constitution. And other court decisions have found that even where some government or corporate obligation to reduce emissions does exist, it is not the courts’ domain to define exactly how they must do so.

One way or another, Montana is preparing for a whole new kind of climate impact — the effects, positive and negative, of the media circus, youth caravans, interested observers, and others who are set to descend on the city to attend the Held trial.

Michael Burger is executive director of the Sabin Center for Climate Change Law and a senior research scholar at Columbia Law School.