Air Date: Week of January 3, 2025

Youth plaintiffs Badge Busse, Mica Kantor, and Eva L. are cheered on by supporters as they arrive for their second day of trial in June 2023. The district court ruling from Judge Kathy Seeley in August 2023 was upheld by Montana’s State Supreme Court in December 2024. (Photo: Robin Loznak/Courtesy of Our Children’s Trust)

In a landmark 6 to 1 decision, the Montana State Supreme Court upheld a ruling that found young people, and by extension all people in Montana, have a constitutional right to a livable climate that state officials can’t ignore. Vermont Law and Graduate School Emeritus Professor Pat Parenteau explains to Host Steve Curwood how the plaintiffs presented their case and how the ruling could guide litigation in other states.

Transcript

CURWOOD: It’s Living on Earth, I’m Steve Curwood. By a 6 to 1 majority the Montana State Supreme Court has upheld a ruling that found young people—and by extension all people in Montana—have a constitutional right to a livable climate that state officials can’t ignore. To help us put this decision in context we turn now to former EPA regional counsel and Vermont Law and Graduate School emeritus professor Pat Parenteau. Hi, Pat, welcome back to Living on Earth!

PARENTEAU: Thanks, Steve. Pleasure to be with you.

CURWOOD: Hey, Pat, how big a deal is this Montana State Supreme Court decision saying, in essence, that young people have the right to not have the state be promoting climate disruption?

PARENTEAU: Right, so this is the first court in the United States to recognize a constitutional right to a stable climate, that's the language that the court used, and that the state cannot turn a blind eye to this and when it's making decisions that's making this crisis worse by continuing to pump more and more fossil fuel, not only into the energy system, but into the atmosphere. That's a violation of these constitutional rights, and it's a landmark decision, because we've seen what's happened in the federal courts in the Juliana case, those attempts to seek a constitutional right to a climate system capable of supporting human life, is the way it was framed in that case, that's gone nowhere. Those cases have all been thrown out. In fact, Our Children's Trust, which brought the case in Montana, has lost many of the other cases that they've brought seeking constitutional rights. So this was a real breakthrough, and it needs to be recognized as historic in that sense. In other parts of the world, we've seen courts recognize constitutional rights, human rights, and a variety of bases to attack the climate problem, but in the United States, we've gotten nowhere. So this was a big, big breakthrough.

CURWOOD: Remind our listeners, what's the premise of this youth lawsuit?

PARENTEAU: So this case was originally brought to challenge Montana's energy policy, which, of course, is heavily fossil fuel dependent, because, among other things, Montana has the largest reserves of coal in the United States, plus a lot of oil and gas. So the original case was to try to force the state to change its energy policy and transition to renewables. Then the case sort of morphed and changed into simply a request for a declaratory judgment that a particular statute that the Montana legislature had adopted was unconstitutional because it violates Montana's right to a clean and healthy environment. So the way the case finally was framed, it was a question of whether or not this individual statute was unlawful and in violation of the Montana constitution.

CURWOOD: And I take it that the plaintiffs were saying that that right to a clean environment, of course, includes a right to not be roasted by climate change.

PARENTEAU: Yes, exactly. And that was not a foregone conclusion. I mean the language of the provision, “clean and healthy environment” doesn't, of course, mention climate, nor did the legislative history of the 1972 constitutional amendment talk about climate. So it was not a foregone conclusion that the courts would ultimately read the Montana constitution to include the right to a stable climate. That became the central focus of the case.

CURWOOD: And I guess they're helped by the Federal ruling that carbon dioxide is a pollutant, so therefore it's not clean. It's polluting the atmosphere.

PARENTEAU: Yes, and in the trial of this case before the district court, there was extensive evidence, which, by the way, the state did not attempt even to rebut, that climate change, global warming, was damaging air, water, land, wildlife, wilderness, basically challenging the whole physical character of the state of Montana. Plus impacting public health, including the health and the mental health of the young plaintiffs that were bringing the case. So the record in this case is one of the most extensive that I've seen on documenting all the ways in which the warming that has already occurred is causing serious daily damage to the resources of Montana and other states.

CURWOOD: Pat, let's get just a little bit of the status of this case. What has the Supreme Court of Montana done now?

PARENTEAU: So the Supreme Court heard arguments last summer. There are seven members of the court. They are elected. They're not appointed, as in other states, and, of course, our own US Supreme Court, as we know, so, the Montana Supreme Court has a majority of democratic justices, and they have to stand for reelection periodically. So that's one of the distinctive factors about this case is this is probably one of the most liberal state supreme courts in the country. So when the Supreme Court heard argument, the argument of the state was, look, everybody in Montana is affected in every bit the same way as these young plaintiffs. There's no distinction here. So the Supreme Court took that head on and said, look, the fact that everybody is affected by this crisis shouldn't mean that nobody has standing to challenge what's going on here in terms of this prohibition on considering climate change impacts when you license and permit oil and gas development, right? So that was a big decision. And in fact, the extent to which the court lays out a blueprint for how you think about young people bringing these cases, not just in Montana, but anywhere, I think it's a blueprint for other state courts to follow, and I think there probably will be other state courts dealing with these issues. So that was a big concern. And then the question was, if all you're asking for is a declaratory judgment, how does that change anything? How does that give you any relief or any remedy? And the answer to that, the Supreme Court said, is, look this right in the Montana Constitution has been interpreted by previous Montana Supreme Court decisions as being a fundamental right, not just a incidental right, but one that requires what's called strict scrutiny when a legislative act like this statute encroaches upon that right. So this is the highest level of protection a Constitution can provide. And so the court said, the fact that you're violating that fundamental right, that's enough to justify a declaration that it's unconstitutional and the state can't persist in closing its eyes to the impacts of what it's doing. So very, very significant, I would say precedent that's fleshed out, it's about, I think, a 70 page decision. It's an extensive discussion, and other courts are going to look at it.

CURWOOD: So this is the state Supreme Court on a state case. To what extent can the people unhappy with this decision, I think the Republican dominated governor and such, to what extent might they be able to go to the federal system, to the United States Supreme Court, to get this thing flipped?

PARENTEAU: They may try. I mean, it's true that Governor Gianforte has told President-elect Trump that you can count on Montana to back up your energy dominance agenda, and it is drill, baby, drill. So we know that the leadership in Montana is probably not going to change its ways in response to this decision, but it will be very difficult to get the US Supreme Court to weigh in on this case. There's no federal nexus here at all. This is all about state law, state constitutional law. It's a limited remedy. It's only telling the state what it can't do, which, again, as I said, close its eyes to the consequences of what it's doing in permitting all of this fossil fuel development. That's all that the Court has said. It hasn't said you have to change your energy policy. It hasn't affected any other state. It doesn't trip any of the wires that would normally lead to the United States Supreme Court feeling like it has to step in. I think if you were to ask this Supreme Court the question, do you think there's a constitutional right or should be, I think I know what the answer would be. I just don't think that question is going to get to the court in this case. If you start to see other state courts follow this decision, so that you start to see more widespread impacts on energy systems, including fossil fuel based systems, you might maybe in the future, see that the Supreme Court gets interested, but as of right now, I think they stay out of this.

CURWOOD: Pat, what other states, what other jurisdictions have the kind of constitutional protections for the environment in their state constitutions, so that perhaps actions might be brought in those states?

PARENTEAU: Yeah. So there are at least eight states that have this, what's called a green amendment to their constitution, a right to a healthy environment. You know, some surprising states, Alaska, Louisiana, Florida, and then some not so surprising, New York and Pennsylvania. So I would expect to see cases being brought in those states selectively. That's the whole game here is you've got to really have a strong factual case with strong plaintiffs that can demonstrate standing under different states. So all of this is quite complicated, but I do expect to see other cases being brought. There's one pending in New Mexico now that doesn't deal directly with climate, but New Mexico has an interesting provision that requires the state to limit pollution from oil and gas extraction. And so there's a case moving its way up through the New Mexico courts. It's the Atencio case. That bears watching, because that's headed for the New Mexico Supreme Court, which is another pretty progressive Supreme Court. I can see a pattern developing of trying to find constitutional bases for climate cases grounded in state constitutional law. Forget federal constitutional law, for now, but looking at state constitutions coming up with creative, well thought-out, well-grounded lawsuits. We could see a trend develop. I'm not necessarily predicting that, but we could see that, and it would be a good thing to see.

CURWOOD: Pat, before you go, how important are the states in this? You know, famously the state constitution of Massachusetts, which was drafted back in the late 1700s calling for equal rights eventually led to a ruling in favor of gay marriage.

PARENTEAU: Yeah, I do have greater confidence that the states are not only the laboratory for the development of environmental law, constitutional law, human rights law, but also the forums that the states provide are so different, and the opportunities to bring cases in courts that are inclined to read into constitutions, rights that aren't explicitly enumerated, but rights that any sort of rational person would recognize as fundamental. And what could be more fundamental than having a climate system, as Judge Aiken in Oregon famously said, capable of supporting human life on Earth? I mean, how can you argue that that should not be a fundamental right recognized and enforced through constitutional based lawsuits? So I do have hope. I'm not naive enough to think we're going to see 50 states doing this. But as these conditions get worse and worse, climate is forcing the courts at every level, but now we're talking state courts, forcing courts to acknowledge that more needs to be done, that there are real victims of the failure of government to deal with these problems. So that is where the battleground is. I think it's in the states, and we'll see what happens.

CURWOOD: Pat Parenteau is a former EPA Regional Council and emeritus professor at Vermont Law and Graduate school. Pat, thanks for taking the time with us, and we'll keep up with you throughout the New Year.

PARENTEAU: Thanks, Steve.

 

Links

Daily Montanan | “Montana Supreme Court Affirms Decision in Held, Historic Youth Climate Case”