Mid-Week Musings on Montana Youth Climate Case

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AFTERMATH OF MONTANA YOUTH CLIMATE CASE: Yesterday’s court victory for the 16 young plaintiffs in the Montana climate case might have limited repercussions (if it is not overturned on appeal) for several reasons.

The first is the issue of implementation: The state’s Republican-led legislature will be tasked with determining how to bring the court’s decision – that the state violated the youths’ constitutional right to a “clean and healthful environment” by approving new fossil fuel projects – into compliance, meaning that any substantive changes could be far off.

Then, there’s the issue of an appeal: Montana Attorney General Austen Knudsen’s office vowed to appeal the decision to the Montana Supreme Court. Emily Flower, a spokeswoman for Knudsen, described the judge’s decision as “absurd,” and noted that similar cases failed to gain traction in other U.S. states.

“Their same legal theory has been thrown out of federal court and courts in more than a dozen states,”Flower told the Washington Examiner in an email. “It should have been here as well.”

Importantly, Montana is not like most states: Coal-fired power plants provided the single largest share of Montana’s electricity generation in 2022, according to the U.S. Energy Information Administration, accounting for roughly 42% of in-state power generation, and more than most U.S. states.

And the state constitution contains a unique provision: The plaintiffs argued that Montana’s Environmental Policy Act, which requires state agencies to weigh environmental health hazards against the development of new energy resources—is unconstitutional, since it violates a provision in the state’s constitution to “maintain and improve a clean and healthful environment” for current and future generations.

But states hoping to follow in Montana’s footsteps could face a much more complicated path.

Our Children’s Trust, the nonprofit legal group that represented the Montana lawsuit, has filed suits in all 50 U.S. states and has active cases in Florida, Utah, Virginia, and Hawaii. It has also raised $20 million to bankroll its lawsuits in U.S. states and federal court.

Climate change cases as a whole have been particularly difficult to advance in many U.S. states, which lack the “clean and healthful environment provision” language in Montana’s constitution (or something similar). Just several others, including Pennsylvania, Massachusetts, New York, and Hawaii, contain such provisions.

Hawaii, where Our Children’s Trust also has an active lawsuit, states in Section 9 of its constitution that each person has “the right to a clean and healthful environment … including control of pollution and conservation, protection and enhancement of natural resources.”

From the Washington Examiner, Daily on Energy, August 14, 2023