Montana Supreme Court Recognizes State Constitutional Right to a "Stable Climate System"

A state Supreme Court gives environmental activists an important symbolic victory that will not do much of anything to mitigate the threat of climate change.

Last week, in Held v. Montana, the Montana Supreme Court held that the Montana Constitution's guarantee of a "clean and healthful environment" encompasses a right to a "stable climate system that sustains human lives and liberties." On this basis it concluded that legislative amendments to the State Energy Policy Act and Montana Environmental Policy Act barring the consideration of climate impacts and impacts beyond Montana's borders as part of statutorily mandated environmental reviews of some permit applications were unconstitutional. In the process, it also concluded that the citizen-suit plaintiffs had standing (in state court) to bring such claims. The vote was 6-1, with one justice dissenting on standing grounds.

Held v. Montana is the first decision by an appellate court in the United States recognizing a constitutional right to a "stable climate." This is no doubt significant. Efforts to vindicate such a claim in federal court, as in the Juliana litigation, have been unsuccessful beyond the trial court level. Yet the legal significance of this case is somewhat limited. The decision only affects activities in Montana and is based on provisions in the Montana state constitution expressly recognizing a right to a clean and healthful environment. And as a policy matter, the actual judgment--invalidating a limitation on MEPA reviews--will have no meaningful impact on climate change whatsoever. What activists are hoping for is that Held will spur other courts to follow suit, or that it will encourage further efforts to adopt meaningful climate mitigation policies.

This is not the first Montana court decision concluding that citizens could sue in state court to vindicate their state constitutional right to a clean and healthful environment. Part of what is interesting (and perhaps path-breaking) about the Held decision is that it appears to be the first in which the plaintiffs did not need to be able to identify any tangible way in which their constitutional rights were violated (such as by a tangible change in environmental quality), nor did they need to identify any way in which a favorable judgment would redress such injuries (such as by preventing or ameliorating identifiable environmental harm). So while the Court adopted a standing inquiry that paralleled that which is required in federal court, the substance of that inquiry was far more permissive.

As interpreted by the majority, the state constitutional right to a stable climate system is violated insofar as the state barred state agencies from considering climate-related imapcts as part of a legislatively mandated environmental review process. So while there was no claim that the MEPA environmental review process was itself constitutionally mandated, the state could not choose to exempt certain environmental questions--such as the effect of permitted activities on global climate change--from that review process. That allowing such review--indeed, that prohibiting all greenhouse gas emissions from all of Montana--would not do much to lessen the impacts of climate change in Montana (or anywhere else for that matter) did not matter. Limiting what is considered in the MEPA review process, by itself, constitutes an "injury" to the plaintiffs constitutional right "to a clean and healthful environment."

From Chief Justice McGrath's opinion for the Court:

It may be true that the MEPA Limitation is only a small contributor to climate change generally, and that declaring it unconstitutional will do little to reverse climate change. But our focus here, as with Plaintiffs' injuries and causation, is not on redressing climate change, but on redressing their constitutional injuries: whether the MEPA Limitation unconstitutionally infringes on Plaintiffs' right to a clean and healthful environment. . . .

the question is whether legal relief can effectively alleviate, remedy, or prevent Plaintiffs' constitutional injury, not on whether declaring a law unconstitutional will effectively stop or reverse climate change. … To make that a requirement for standing would effectively immunize the State from any litigation over whether its laws are in accordance with the "affirmative [constitutional] duty upon the[] government to take active steps to realize" Montanans' right to a clean and healthful environment.

According to McGrath, by limiting the review of climate impacts, the state legislature undermined the ability of the state and its citizens to address climate change.

MEPA mandates that the State take a "hard look at the environmental consequences of its actions" before it leaps, which is impossible when the State intentionally refuses to consider an entire area of significant environmental consequences. . . . Obviously, a clean and healthful environment cannot occur unless the State and its agencies can make adequately informed decisions. . . . . Nor can Plaintiffs be informed of anticipated impacts to the environment when the Legislature forecloses an entire area of review proven to be harmful to Montanans' right to a clean and healthful environment. . . . Nor will the Legislature be informed of whether laws are adequate to address climate change when MEPA precludes an environmental review addressing the impacts from potential state actions.

Justice Sandefur concurred separately, agreeing with the Court's bottom line, but disagreeing on some particulars. He wrote in part:

I first concur with the Majority on the easy question of whether Mont. Const. art. II, § 3 (right to "clean and healthful environment"), generically includes the right to a stable climate system that sustains human lives and liberties. However, the harder and more complex question unaddressed by the Majority, and the conspicuously absent particularized causation evidence in this case, is how that fundamental Montana constitutional right possibly can or should apply to restrictive MDEQ MEPA-compliance review of the gubernatorial energy policies originally at issue below, not to mention particular projects that otherwise comply with all applicable air quality review and permitting standards and requirements of the controlling federal Clean Air Act and subordinate Montana Air Quality Act regulatory scheme, in the face of the very real and uniquely complex global warming problem plaguing the entire planet, not just the slice of sky over Montana. . . .

The overly simplistic focus of Plaintiffs and the Majority of this Court on the undisputed and indisputable fact that global warming "is harming Montana's environmental life support system now and with increasing severity for the foreseeable future" is no more than a political and public policy statement of the obvious. As such, it further serves as a smokescreen diverting attention away from those inconvenient facts of record and the other similarly indisputable fact: accelerated global warming caused by fossil fuel burning and other human sources of greenhouse gases is a highly complex global problem, any solution or meaningful mitigation to or of which lies exclusively in the domain of federal and international public policy choices and cooperation, rather than in a flashy headline-grabbing rights-based legal case in Montana. . . .

Justice Rice dissented, arguing that the "growing urgency" of climate change "affords no discretion or authority to excuse the constitutional requirement that Plaintiffs bring a concrete case or controversy before the Court—a case or controversy that must be defined by constitutional principles governing justiciability and standing, not by policy significance or vogue." He continued:

These other measures may well move the executive and legislative branches to action, but they are not permitted to so compel the judicial branch. Failure to enforce constitutional case or controversy requirements inevitably turns a court into an ad hoc legislative body. Without a doubt, the debate about climate change, and related topics such as possible geoengineering solutions—from the enormous carbon dioxide vacuum facility in Hellisheidi, Iceland, to the massive direct carbon dioxide air-capture facility in Odessa, Texas, to stratospheric aerosol injection technology designed to deflect more and capture less sunlight and thus cool the earth, to enhancement of the capability of the oceans' phytoplankton habitat to draw and absorb carbon dioxide—are both   fascinating and controversial, but courts must nonetheless resist the temptation to depart from their lane, and refrain from entering these matters except upon clear demonstration of a justiciable case or controversy as required by the constitution.

That does not exist here. The Court emphasizes the breadth of the Constitution's environmental protections, but that, of itself, does not create a case or controversy. Many constitutional provisions are considered to be "broad." All of the environmental cases relied upon by the Court involved a government action that operated upon, and thus directly impacted, the subject plaintiffs, who brought an action in each of those cases to challenge the particular government action affecting them. Here, as further analyzed below, there is no such operative government action—no project, no application, no decision, no permit, no enforcement of a statute—which directly impacted the Plaintiffs. Rather, the only government action raised here is an enactment of a statute that could operate to affect Plaintiffs if applied in an actual case. The District Court struck down these statutes as unconstitutional, even though the statutes had never operated upon the Plaintiffs, and then struggled to define what this result meant, because there was no actual pending dispute to which its ruling could attach. Consequently, instead of a "decree of conclusive character," . . . , the District Court entered a floating judgment of generic unconstitutionality.

As much as we want to encourage young people to involve themselves in the political process, that desire itself cannot turn Plaintiffs' compelling stories into constitutional standing. That is because Plaintiffs' stories are not legally unique. Like compelling stories could also be drawn from the more than one million other Montanans who are likewise affected by climate change—about how climate change has impacted them, affected their wellbeing, and created fear and concern about their future. Indeed, it is not only young people who have been impacted by climate change and are very concerned about it. "In the last generation, [climate] changes that have had a decisive influence on all social life have occurred"—was a description of the impact of climate change upon the generation that also endured the Great Depression and fought World War II. Is the World Getting Warmer?, supra, at 23. Climate change is universal in effect and nondiscriminatory; it affects everyone. And even if it has affected some persons more than others, that impact does not erase the population-wide effect of climate change.

Because there is nothing about Plaintiffs' stories that could not also be found within the collective experience of the entire Montana population, their allegations are not distinguishable from the general public at large, and thus erode a claim to standing. What is necessary for standing is a Montana government action that has directly impacted a member of the Montana population, which is absent here. As explained more specifically herein, the Court's ruling opens the courts for litigants, upon a hypothetical set of facts, to seek and obtain redress from courts by advisory opinions. I thus turn to the governing constitutional principles. . . .

While I agree the clean and healthful provision is an expansive right that is intended to apply to every citizen of Montana, it does not follow that any impact, current or imminent, upon a clean and healthful environment allegedly allowed by a statute alone constitutes a sufficiently concrete injury to every citizen for standing purposes, such that an action can be brought without demonstration of a personal stake in the litigation—that is, the government's application of the statute in a controversy affecting the citizen. . . .

standing requires that the MEPA Limitation be a cause of the injury, which is the degradation of a clean and healthful environment. An alleged injury cannot be a theoretical observation that the challenged MEPA framework is insufficient; rather, for standing purposes, a concrete current or impending violation of the constitutional right to a clean and healthful environment—the injury—by way of the government's application of the framework to the Plaintiffs—the cause—is required.