Portside

A group of young plaintiffs won a historic lawsuit in Montana in mid-August, when a district court judge ruled that state agencies were violating the plaintiffs’ constitutionally guaranteed right to a clean and healthy environment. 

Our Children’s Trust, a public interest law firm, filed the lawsuit, Held v. Montana, in 2020, on behalf of sixteen young people whose ages at the time ranged from two to eighteen years old. 

Held v. Montana argued that the state of Montana failed to protect young people’s constitutional right to a clean environment when approving energy projects without taking into account their impact on the climate.  

Montana’s constitution mandates that the “state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations.”

The ruling is important in two regards: First, this case is the first of its kind to successfully use a state constitution to ensure intergenerational climate justice; and second, it will enhance scrutiny of future energy projects during the approval process. 

Montana is the fifth-largest coal producer and the twelfth-largest oil producer in the United States. With the ruling, state agencies will now have to weigh the environmental impacts of any future coal, oil, or gas projects. The state attorney general’s office said it would appeal the ruling. 

The momentum of the youth initiative in Montana extends far beyond its borders. Our Children’s Trust has filed youth-led climate lawsuits and other legal actions in all fifty states. The nonprofit currently also has ongoing litigation in Florida, Hawai‘i, Utah, and Virginia. 

In April 2018, eight plaintiffs in Florida filed Reynolds v. Florida, which accused the state of violating young people’s fundamental rights to a stable climate system under Florida common law and the Florida constitution. Two years later, a judge dismissed the case but issued a ruling that would be conducive to appeal. 

Subsequently, on January 5, 2022, four of the youth plaintiffs involved in Reynolds v. Florida filed a petition with Florida’s Department of Agriculture and Consumer Services (FDACS), asking it to establish a goal to derive 100 percent of Florida’s electricity from renewable energy sources by 2050. 

In response, on August 9, 2022, FDACS issued Florida 50-5, which set the following renewable energy goals for the state’s electric utilities: at least 40 percent by 2030; 63 percent by 2035; 82 percent by 2040; and 100 percent by 2050.

In Hawai‘i, fourteen youth plaintiffs filed a constitutional climate lawsuit last year, called Navahine F. v. Hawai‘i Department of Transportation, claiming that the state’s transportation system produces high levels of greenhouse gas emissions in violation of the plaintiffs’ rights to “live healthful lives in Hawai‘i, now and into the future.” The trial is scheduled to start in June 2024. 

In Utah, seven youth plaintiffs filed a similar lawsuit, Natalie R. v. State of Utah, arguing that the state’s continued development and exploitation of fossil fuels violate their constitutional rights to life, health, and safety. That case goes before the Utah Supreme Court later this year. 

In Virginia, twelve young people filed Layla H. v. Commonwealth of Virginia in February 2022, arguing that the commonwealth’s permitting of fossil fuel infrastructure violates their right to a healthy environment. A court dismissed the case later that year, and the plaintiffs are appealing. 

In addition to Montana, New York and Pennsylvania constitutions include rights to a healthy environment via green amendments, and several other states are considering similar measures, according to the National Caucus of Environmental Legislators. (A green amendment amends a state constitution’s bill of rights to guarantee citizens the right to clean air and water and a healthy environment.) 

The strategy of filing lawsuits to demand climate action is being used by young people across the world.

A report in July by the U.N. Environment Programme and the Sabin Center for Climate Change Law at Columbia University noted that the number of climate change-related court cases has more than doubled globally in just five years, from 884 cases in 2017 to 2,180 in 2022. Those include thirty-four cases that have been brought by and on behalf of children and youth under twenty-five years old. 

According to a press release about the report, most of these cases fall into one of six categories: “cases relying on human rights enshrined in international law and national constitutions; challenges to domestic nonenforcement of climate-related laws and policies; litigants seeking to keep fossil fuels in the ground; advocates for greater climate disclosures and an end to greenwashing; claims addressing corporate liability and responsibility for climate harms; and claims addressing failures to adapt to the impacts of climate change.”  

While most of these cases were brought in the United States, about 17 percent are from developing countries. 

Given the slow pace of international negotiations on climate change mitigation and greenhouse gas reduction, climate litigation is an increasingly important tool in climate activists’ toolbox. The increasing number of cases, and the success in some of them, demonstrate that they are already having an important impact.

With the slow pace of international negotiations, climate litigation is an increasingly important tool.

[Tina Gerhardt is an environmental journalist and an academic. Her writing has been published in The Guardian, The Nation, and Orion. She is the author of "Sea Change: An Atlas of Islands in a Rising Ocean" (University of California Press 2023).]