The kids won!
The climate change lawsuit against the state of Montana has shown what young people can achieve.
A few weeks ago, right when we started this series actually, I wrote an article about Oregon’s Multnomah County suing Big Oil for its part in climate change that’s impacting the city. And in that article I had mentioned that there were a hundreds (thousands?) of lawsuits around the country that were aiming to tackle climate change through similar lawsuits. As you can imagine many of these lawsuits get dismissed, or are otherwise very slowly making their way through the court system. Well, this week, we got a big result from the state of Montana.
Unfortunately, as we’re going to find out, while this is a really amazing win for those trying to fight against the fossil fuel industry and the states that back it, this specific lawsuit will likely be pretty limited to just Montana. But first, let’s dig into the lawsuit a little bit.
Held v. Montana
Held v. Montana is the official court case for a lawsuit based in the state of Montana and going through the state courts of Montana, not the federal courts. That said, it’s still a landmark constitutional case within the state concerning the right to a "clean and healthful environment." This has been emphasized because it’s going to play heavily into the reason why the case was won.
Filed in March 2020 by Our Children's Trust on behalf of sixteen youth residents, it became the first climate-related constitutional lawsuit to go to trial in the U.S. on June 12, 2023. The plaintiffs contended that the state's support of the fossil fuel industry and a specific provision in the Montana Environmental Policy Act (MEPA) had exacerbated climate change effects, violating their constitutional rights. The state defended itself by asserting that it was following the law and claimed that the issue was a political grievance, not actionable in court. Kind of a weeny argument in my opinion, but I’m not a lawyer.
Regardless, on August 14, 2023, Judge Kathy Seeley ruled that the existing MEPA, which prevented consideration of environmental factors in decisions on oil and gas permits, violated the rights of the youth plaintiffs. The state, of course, has promised to appeal but the fact that it cleared the first hurdle is pretty impressive. But why they lost is actually pretty interesting and, unfortunately, means that it’s also not really applicable to other states.
Why did Montana lose?
Montana lost, basically, because its state constitution enshrines the right of Montanans to have “a clean and healthful environment” right in it. But let’s back up a little bit because this lawsuit brings to light a few nefarious things that conservative states have done.
Back in 1969, the United States passed a law called the National Environmental Policy Act, better known as NEPA. And this law basically laid out what the analysis process to ensure that a project does not cause undue harm on humans or protected wildlife. This is done through something that is more commonly known as an Environmental Impact Statement (EIS). All told, NEPA has been a pretty mixed bag in terms of actually protecting the environment, but it’s enough of a thorn that it at least makes companies, city, and state governments consider the impacts of their projects and propose mitigations, something that would not be done otherwise.
But NEPA is a national law and, as such, really only applies to projects that apply on a federal level. That means it would either need to be receiving federal money, using federal lands, or impacting something that is federally protected. As such, 20 states and territories in the country have passed similar, state-level versions. Montana was one of those states. In 1971, the state legislature passed the Montana Environmental Policy Act (MEPA) in order to catch everything that slipped through the cracks of NEPA. From Montana’s own “Guide to the Montana Environmental Policy Act” handbook:
In MEPA’s innovative provision for environmental impact statements on “major actions of state government significantly affecting the quality of the human environment”, MEPA significantly expanded the public right to participate in the decisions of government. Such impact statements were in effect deeply conservative provisions requiring thoughtful, informed, and deliberate consideration of the consequences and impacts of state actions. Simply expressed, they mandated, “Look before you leap.”
Seems pretty reasonable, right? If you work on state lands, take state money, or have a project that will unduly harm Montanans or Montana wildlife, you have to go through the MEPA process. However, a provision was created within MEPA that precluded the state from considering greenhouse gas emissions from energy projects within the state, and that, the case was arguing, was unconstitutional per that original quote above from the state’s own constitution, which the judge agreed with.
For their part, the state argues that climate change falls outside of the purview of the simple state of Montana and, as such, they shouldn’t be held accountable for it. But Montana actually has more of a hand in climate change than they may want to admit.
Montana’s disproportionate impact on climate change
Montana is a coal producing state. That narrative perhaps gets lost in much of the national conversation, mostly due to West Virginia’s outsized influence in the area, but regardless Montana is as tied to coal as Texas is to oil. As of 2020, the state produced around 40 million tons of coal per year. And while that’s a huge amount of coal, the state has much more still in the ground with an estimated 119 billion tons yet to be mined. So you can imagine that the state of Montana is quite eager to extract and sell that resource in order to boost state budgets and company profits that call the state home.
It’s precisely because of this coal export industry that Montana has an outsized influence on climate change. Were the lawsuit arguing that Montana simply wasn’t doing enough to curb driving habits, or energy use within the state, they likely wouldn’t have lost. But the fact that Montana is a huge coal producing state, a source of energy well known for its climate change inducing effects, and the fact that it specifically precluded MEPA from analyzing greenhouse gas emissions from projects occurring within the state, creates a compelling argument that Montana is disregarding its own constitution.
And it’s also not like Montana’s coal was only being used in Montana. According to what I could find online, Montana’s coal is used in power states all around the country (though specifically the midwestern states), but can also be found in Japan, China, and South Korea. This means that Montana is directly fueling climate change around the world, exacerbating the effects of climate change for everyone. The state’s argument that their impact is pretty minimal is likely true, but it is also absolutely disproportionate.
Ultimately, while this lawsuit was a win for everyone involved, it’s impact on the greater landscape of climate change lawsuits around the country, will be fairly minimal. At the heart of this win was the fact that the state enshrined the environment in its constitution, something few other states and countries have done.
But a win is a win! 🥳