Sam Bookman*<\/p>\n
Download a copy of the PDF.<\/a><\/p>\n Courts have always played an important role in American climate governance. They determine statutory interpretation of existing pollution control laws, resolve conflicts between state and federal governments, and fix the limits of executive powers.[1]<\/a> But many climate activists and lawyers imagine a more expansive role for courts. Rather than clarifying (or restricting)[2]<\/a> governmental responses to climate change, these activists want courts to be an engine of climate action. They want courts to call state and federal governments out for their lack of action on climate change, and order them to do better.<\/p>\n The challenge for these activists is to find explicit legal authority which supports this role. And in the United States, such authority is hard to find. Most federal environmental legislation predates widespread concern about climate change.[3]<\/a> The United States Constitution, unlike most of the world\u2019s constitutions, does not expressly protect environmental rights.[4]<\/a> Innovative legal theories, such as the application of the public trust doctrine to the entire climate system, have failed to bear fruit.[5]<\/a> In the absence of clear authority, courts have refused to take on a more ambitious role in climate policy, instead finding climate-ambitious claims to violate prudential rules of standing[6]<\/a> and the political question doctrine.[7]<\/a> Most notably, in Juliana v. United States<\/em>, the Ninth Circuit in 2020 found that plaintiffs challenging federal climate policy lacked standing, because no remedy from the court could redress the plaintiffs\u2019 climate-related injuries.[8]<\/a> These cases have seemed increasingly at a dead end.<\/p>\n But activists\u2013especially youth-led activists\u2013have not given up. In Held v. Montana<\/em>, they turned to a largely untested source of authority: state constitutional law. They argued that state legislation violated Montana\u2019s state constitution, which protects a \u201cright to a clean and healthful environment.\u201d[9]<\/a> The Court agreed and struck down two offending laws.[10]<\/a> The climate rights<\/em> movement now has its clearest win in United States courts.<\/p>\n In one sense, the decision is narrow: it rests on a right found in only a handful of state constitutions[11]<\/a> and relates only to two pieces of state legislation.[12]<\/a> But in other respects, it is highly significant. In this Article, I contextualize and summarize the decision. I review what lessons the Held <\/em>decision might offer for other climate suits. First, I highlight the limited but significant potential of state constitutional law as a basis for future claims. Secondly, I consider the Held<\/em> decision\u2019s significance for standing and causation litigation barriers. In particular, I explore how the Court engaged with and applied climate science to establish a convincing chain of logic between the State\u2019s greenhouse gas emissions and particular, present harms experienced by the plaintiffs. Thirdly, I consider the significance of the narrowness<\/em> of the claims. Though plaintiffs initially brought an ambitious challenge against the State, the court\u2019s narrowing of the claim to two pieces of legislation may have done the plaintiffs an enormous favor: it is a strategy that could be replicated by future litigants. And finally, I consider the effects of the decision beyond the courtroom, and in particular, the role played by rights discourse in political organizing efforts.<\/p>\n I conclude by asking what happens next. The decision is far from final: the State has already indicated that it will appeal to Montana\u2019s Supreme Court.[13]<\/a> The ruling will undoubtedly spark countermobilization efforts by conservative groups. How the decision is framed within the political discourse of a deep-red state will likely influence whether it has a lasting impact on climate policy. The decision is only one step in a much broader battle over the future of the United States\u2019 response to climate change.<\/p>\n Held<\/em> was filed in 2020 by a group of 16 young people, then aged between two and 18. The complaint was ambitious. It called on the court to declare unconstitutional a range of state laws and actions and to implement a remedial plan with ongoing court supervision to ensure compliance.[14]<\/a> Much of this challenge was dismissed on mootness grounds\u2013many of the challenged statutes were repealed, and the claims were therefore no longer relevant.[15]<\/a> The extensive remedial plan was found to exceed the court\u2019s authority under the political question doctrine (in other words, it was beyond the court\u2019s jurisdiction to develop and supervise an extensive plan to rectify the state government\u2019s climate policies).[16]<\/a> Instead, by the time the case came to trial, the issue before the court was a relatively narrow one.<\/p>\n The case centered on a challenge to two provisions of Montana\u2019s Environmental Policy Act (MEPA). First, the plaintiffs challenged a provision known as the \u201cMEPA Limitation.\u201d[17]<\/a> The MEPA Limitation, enacted in 2011, prevented state agencies from considering environmental impacts outside of Montana\u2019s borders when conducting environmental reviews.[18]<\/a> This amendment had significant implications for the approval of proposed energy projects in a coal-rich state. For example, rather than weighing the potential economic benefit of a coal mine against the costs associated with global greenhouse gas (GHG) emissions, the law appeared to allow consideration only of climate impacts within Montana\u2013and arguably, only those fossil fuels burned within the state. In 2023, the MEPA Limitation was extended even further. After a judge rebuked a state agency for failing to consider even those limited climate impacts,[19]<\/a> the state legislature responded with an even more restrictive measure. House Bill 971, enacted in May 2023, prevented consideration of any <\/em>climate impacts unless \u201cthe United States congress amends the federal Clean Air Act to include carbon dioxide emissions as a regulated pollutant.\u201d[20]<\/a> Second the plaintiffs challenged a second law passed by the Montana legislature, SB 557. SB 557, enacted a few days after the MEPA Limitation, provided that courts could not \u201cvacate, void, or delay\u201d proposed projects on climate grounds.[21]<\/a><\/p>\n The plaintiffs\u2019 challenged these two provisions under a provision of the Montana Constitution, which protects \u201cthe right to a clean and healthful environment.\u201d[22]<\/a> Such a right is found only in a handful of other state constitutions.[23]<\/a> Since this right was enacted in Montana in 1972, state courts have developed a body of law interpreting and applying the right. Most significantly, in 1999 the Montana Supreme Court held that the right is a \u201cfundamental right\u201d warranting strict scrutiny, meaning that the state must be able to point to particularly compelling interests in order to limit the right.[24]<\/a> The right, however, had never been applied by Montana courts in the context of climate change. But the existence of the express constitutional rights meant that the plaintiffs did not have to argue such a right was implied in other constitutional rights or in state common law.<\/p>\n Instead, the clear environmental right, and the relatively narrow statutory provisions being challenged, gave the case a sharp focus and avoided some of the political question and redressability obstacles faced elsewhere. In particular, the plaintiffs did not encounter some of the challenges encountered by plaintiffs in Juliana v. United States<\/em>, a case brought against the federal government.[25]<\/a> Unlike the Montana Constitution, the United States Constitution does not contain an express environmental right. In order to advance their claims, the Juliana <\/em>plaintiffs had to demonstrate that a right to a \u201cstable climate system\u201d was implied in the Constitution and the common law.[26]<\/a> Furthermore, plaintiffs requested an extensive plan to remedy alleged pervasive failures in federal climate policy.[27]<\/a> Without considering the merits of the plaintiffs\u2019 claims concerning the existence of a climate right, the court in Juliana<\/em> concluded that the plaintiffs\u2019 claims were too sweeping\u2013they could not be adequately redressed by the court.[28]<\/a> By seeking a narrow remedy, and by grounding their claims in an express<\/em> environmental right, the Held<\/em> plaintiffs were able to avoid many of the challenges experienced by the Juliana<\/em> plaintiffs.<\/p>\n The district court\u2019s decision sets out an extensive scientific record presented at trial, which was largely uncontested by the State. The court affirmed the reality of global warming caused by \u201canthropogenic changes in the environment, not natural variability\u201d[29]<\/a> and spelled out how climate change affects young people, the state of Montana, and the plaintiffs in particular. The court noted that children are particularly affected by climate change not just because they will live longer into a hotter future, but also because \u201cclimate change is already harming plaintiffs\u201d[30]<\/a> through changes to the local environment, as well as physical and mental health harms.[31]<\/a> The court observed that many of the present effects of climate change, such as climate anxiety, are particularly harmful to children.[32]<\/a> The court noted the particular cultural and environmental impacts on Native American children,[33]<\/a> as well as the uneven impact of climate change produced by existing deprivation and inequality.[34]<\/a> And Judge Seeley set out specific impacts of climate change on the State: glacial loss, reduced river flow, drought, wildfires, and biodiversity loss.[35]<\/a> The court catalogued the unique injuries suffered by each of the plaintiffs, providing a powerful record of the already-manifest impacts of climate change.[36]<\/a> The court concluded that \u201cbecause of their unique vulnerabilities, their stages of development as youth, and their average longevity on the planet in the future, Plaintiffs face lifelong hardships resulting from climate change.\u201d[37]<\/a><\/p>\n Next, the court considered Montana\u2019s contribution to global GHG emissions. The court accepted the evidence offered by the plaintiff expert witness while finding that testimony offered by the State\u2019s expert economist was \u201cnot well-supported, contained errors, and was not given weight by the Court.\u201d[38]<\/a> Accounting for fossil fuel extraction, processing and transportation, and consumption by end users (including end users outside of Montana), the court concluded that in 2019, Montana was responsible for the emission of 166 million tons of carbon dioxide (not accounting for other greenhouse gases),[39]<\/a> and was responsible for 3.7 billion tons of carbon dioxide emissions since 1960.[40]<\/a> The court contextualized this footprint as being larger than that of many countries, noting that emissions resulting from fossil fuels extracted in Montana were larger than those of fuels derived from Brazil, Japan, Mexico, Spain, or the United Kingdom.[41]<\/a> Crucially, the court noted that the State was still actively involved in permitting and licensing future projects and that \u201cMontana\u2019s land contains a significant quantity of fossil fuels yet to be extracted.\u201d[42]<\/a> Overall, concluded the court, \u201cwhat happens in Montana has a real impact on fossil fuel energy systems, carbon dioxide emissions, and global warming.\u201d[43]<\/a><\/p>\n The court\u2019s decision included multiple holdings informed by these extensive factual findings. First, the court held that plaintiffs had established standing: they had demonstrated a cognizable injury, traceable to the defendant, which could be redressed by the court.[44]<\/a> Emphasizing effects on plaintiffs\u2019 mental health, the court accepted that the harms experienced by the plaintiffs\u2013harms that would be intensified by ongoing greenhouse gas emissions\u2013amounted to cognizable injuries.[45]<\/a> Furthermore, Judge Seeley found that the MEPA Limitation would contribute to plaintiffs\u2019 injuries because it \u201cprevents the availability of vital information\u201d that would allow the State to comply with its constitutional duty.[46]<\/a> The Limitation \u201ccauses the State to ignore renewable energy alternatives,\u201d[47]<\/a> despite \u201cabundant renewable energy resources\u201d in the State.[48]<\/a> In light of Montana\u2019s extensive and ongoing contribution to climate change, the court found that the state\u2019s actions were \u201cnot de minimis<\/em> but are naturally and globally significant,\u201d and thus \u201ccause and contribute to climate change and Plaintiffs\u2019 injuries and reduce the opportunity to alleviate Plaintiffs\u2019 injuries.\u201d[49]<\/a> Plaintiffs\u2019 injuries were accordingly traceable to the State. Finally, the court found those injuries redressable. Because Montana still possesses significant coal reserves, and the consideration of climate impacts in permitting decisions could reduce the likelihood of future approvals, invalidating the MEPA Limitation would redress plaintiffs\u2019 ongoing injuries:[50]<\/a> \u201cevery additional ton of greenhouse gas emissions exacerbates Plaintiffs\u2019 injuries and risks locking in irreversible climate injuries.\u201d[51]<\/a><\/p>\n In light of the fundamental constitutional nature of the environmental right, the court then applied strict scrutiny analysis to the challenged laws. In other words, having been found to infringe on the protected environmental right, the laws could only be upheld if they served a compelling state interest, and were narrowly tailored to effectuate that interest.[52]<\/a> Relying on judicial precedent and the intent of the right\u2019s framers (including one convention delegate who testified at the trial),[53]<\/a> the court found that the \u201cclean and healthful environment\u201d extended to the climate,[54]<\/a> and that the state owed an affirmative duty \u201cto take active steps to realize this right.\u201d[55]<\/a> Contrary to that duty, the state had not offered a compelling government interest that would justify infringing upon that right, and no argument that the MEPA Limitation was sufficiently tailored to serve that interest.[56]<\/a><\/p>\n The court also found the second challenged law, SB 557, facially unconstitutional. SB 557 prevented courts from vacating, voiding, or delaying proposed projects on climate grounds.[57]<\/a>\u00a0 In other words, SB 557 prevented courts from finding that environmental reviews were inadequate for failing to consider greenhouse gas emissions or climate impacts. Although SB 557 was passed after plaintiffs filed their initial complaint, the State relied on the provision in arguing the case should be dismissed, and both parties addressed the provision\u2019s constitutionality during later trial briefings.[58]<\/a> Applying strict scrutiny, the court held that SB 557 violated Article IX, Sec. 1(3) of the Montana Constitution,[59]<\/a> which obligates the legislature to provide \u201cadequate remedies for the protection of the environmental life support system from degradation.\u201d[60]<\/a> Specifically, the court found that the provision violated plaintiffs\u2019 right to \u201cpreventative, equitable relief,\u201d[61]<\/a> and \u201cfails to further a compelling state interest.\u201d[62]<\/a><\/p>\n On the one hand, the decision has relatively limited scope. It is based on a constitutional provision found only in a handful of other states[63]<\/a> and concerns an unusually egregious law: one which not only prevents consideration of global GHG emissions from extraction projects, but all <\/em>GHG emissions, including those which will impact people living within the state. The court\u2019s order might require Montanan decision-makers to consider the climate impacts of greenhouse gas-emitting projects, but they will not be under any substantive obligation to withhold approvals.[64]<\/a> And the State has already announced that it will appeal the decision.[65]<\/a> The full practical impact of the decision is unclear.<\/p>\n On the other hand, the decision amounts to a long-sought victory for climate activists\u2013and particularly youth climate activists\u2013seeking a pathway for courts to play a more ambitious role in climate governance. For these movements and their lawyers, there are several lessons that can be learned.<\/p>\n First, it suggests that state constitutional law might provide a vehicle worth exploring in future climate litigation, particularly in Montana, as well as the five other jurisdictions with existing environmental rights provisions. Many of those provisions have been historically underutilized in litigation,[66]<\/a> but there are signs they could be reinvigorated. Pennsylvania\u2019s Supreme Court has recently found that the State\u2019s environmental rights provision imposes strict fiduciary obligations on the State.[67]<\/a> Even more recently (and more explicitly related to the context of climate change), Hawaii\u2019s Supreme Court this year upheld the State\u2019s Public Utility\u2019s Commission\u2019s (PUC) to deny approvals based on climate grounds, finding that the PUC had acted to protect environmental rights guaranteed by the state constitution.[68]<\/a> The NGO which litigated the Held<\/em> claim, Our Children\u2019s Trust, has filed a similar claim in Hawaii, hoping to replicate Held<\/em>\u2019s success elsewhere.[69]<\/a><\/p>\n Courts in those states with environmental rights provisions, but without a developed jurisprudence\u2013Illinois, Massachusetts, and New York (where voters approved an environmental rights amendment in 2021)\u2013might begin to develop similar doctrines. Activists in states whose constitutions have non-rights-based environmental provisions might also draw on Held <\/em>in their litigation.[70]<\/a> And climate activists across the country might work to amend their state constitutions to include additional rights, providing them with more solid footing in state courts. Proposals for state constitutional environmental rights provisions\u2013known as \u201cgreen amendments\u201d\u2013are already on the table in several states, supported by a national network of organizers.[71]<\/a> The success of the Held <\/em>plaintiffs will likely give these movements added impetus.<\/p>\n Secondly, the Held <\/em>judgment could serve as a model for litigants seeking to overcome interrelated standing and causation hurdles. Such hurdles arise in many different contexts in climate litigation, well beyond state constitutional suits such as Held<\/em>.<\/p>\n In Held<\/em>, the court generally followed the federal test for standing: plaintiffs must demonstrate cognizable injuries; fairly traceable to the defendant\u2019s conduct; and redressable through a favorable decision by the court.[72]<\/a> These requirements have been notoriously difficult to prove in the climate context. First, courts generally require that injuries be \u201cactual or imminent.\u201d[73]<\/a> Historically, it has not always been easy for plaintiffs to demonstrate imminent<\/em> harms resulting from climate change, as opposed to heightened future risk.[74]<\/a> However, in Held<\/em>, plaintiffs were able to construct an effective claim that they were already experiencing significant harm: not only because of climate-related changes to the Montana environment, but also because of mental health and anxiety challenges faced by them (and many other young people), as convincingly documented through expert evidence.<\/p>\n Secondly, attributing climate harms to the conduct of defendant states (or companies) has proven extremely difficult in many climate litigation contexts. This is a challenge not only for standing purposes, but in proving causation requirements across many doctrinal tests.[75]<\/a> Greenhouse gases are emitted from an enormous range of sources located all over the world. Demonstrating that the actions of a single emitter or government \u201ccaused\u201d injury to a particular plaintiff is extremely challenging.[76]<\/a> Defendants typically argue that their emissions have caused injury only by mixing together with those of many other emitters, including those located outside the state and country;[77]<\/a> and if they hadn\u2019t extracted and burned fossil fuels (or approved such practices), someone else would have instead\u2013sometimes referred to as \u201cmarket substitution\u201d[78]<\/a> or \u201cperfect substitute\u201d argument.[79]<\/a><\/p>\n Despite these challenges, the Held <\/em>court pieced together a persuasive causal chain leading from the state\u2019s authorization of fossil fuel projects to concrete injuries suffered by the plaintiffs. This chain relied extensively on plaintiff expert evidence, which the State\u2019s expert failed to persuasively contradict.[80]<\/a> The injuries of each individual plaintiff derived from global fossil fuel emissions; the share of those emissions caused by Montanan fossil fuels was significant; and the MEPA Limitation made it more likely that Montana would continue to be a significant source of emissions, thus aggravating the plaintiffs\u2019 injuries. This final step in the causal chain helped to show that the plaintiffs\u2019 injuries (unlike those in Juliana<\/em>[81]<\/a>) were redressable: with the MEPA Limitation invalidated, the court reasoned the state would have better-quality information, and therefore would be less likely to approve GHG-emitting projects.[82]<\/a> Once this simple causal narrative was assembled, it is hard to imagine how Montana could successfully defend the law.<\/p>\n Still, it should be noted that the court avoided some difficult issues, which could be raised on appeal. The court does not deal with the market or perfect substitution argument.[83]<\/a> It does not offer a reason as to why \u201cmore than de minimis,\u201d or even \u201cnationally and globally significant,\u201d is a sufficient standard for establishing causation.[84]<\/a> It does not set out a test or threshold at which a contribution becomes \u201cmore than de minimis<\/em>.\u201d It does not purport to quantity what share of the plaintiffs\u2019 injuries are caused by the State\u2019s emissions, let alone potential future emissions. It does not try to quantify the extent to which the plaintiffs\u2019 injuries would be alleviated if Montana kept its fossil fuels in the ground. Instead, the court (not unreasonably) observed that Montana\u2019s contribution to overall emissions is indeed significant and vastly disproportionate to the State\u2019s population.[85]<\/a> While this is a plausible theory of causation and redress, it still leaves open several avenues that the State may address on appeal.<\/p>\n Thirdly (and relatedly), the decision shows the value of narrow, targeted challenges. This was not the intention of the plaintiffs: as noted above, the initial complaint was far more wide-ranging. Several challenged provisions, however, were repealed before trial (rendering these claims moot), and the extensive remedies pursued by the plaintiffs were found to exceed the Court\u2019s authority under the political question doctrine.[86]<\/a> But in narrowing the issue to the validity of the MEPA Limitation, the Court may have done the plaintiffs an immense favor.<\/p>\n Wide-ranging climate claims are risky. If plaintiffs win, then the payoff may potentially be bigger. But in order to win, plaintiffs need to overcome two major interrelated hurdles: redressability and political question concerns. The political question doctrine concerns whether the matter is appropriate for judicial, rather than political, consideration;[87]<\/a> redressability concerns whether the claimed injury is something that courts are capable of remedying.[88]<\/a> Courts will be reluctant to interfere with whole-of-government policies, which often involve complex polycentric decisions and trade-offs.[89]<\/a> In particular, courts may feel that such decisions lack \u201cjudicially manageable standards,\u201d rendering such interventions inappropriate under the political questions doctrine.[90]<\/a> Relatedly, judges might worry that their intervention in major government policies may simply be ineffective: a judicial order can only do so much. As observed by the Ninth Circuit in Juliana<\/em>, ordering the development of a plan\u2013and actively supervising such a plan\u2013may simply be beyond the court\u2019s enforcement power.[91]<\/a><\/p>\n These issues did not prevent the Held<\/em> court from finding in favor of the plaintiffs. Rather than having to devise a plan to guide the State\u2019s climate policy, the court simply had to determine whether two narrow legislative provisions conformed to the State Constitution. The form of relief was simple: striking down the challenged provisions, and injuncting the State from acting in accordance with the statutes.[92]<\/a> While the impact of the decision may not have been as sweeping as the plaintiffs would have hoped, the narrow issue, and simple negative remedy, alleviated these other concerns.<\/p>\n Finally, the decision shows the power of legal mobilization through courts, by young people, through rights discourse.[93]<\/a> The Held <\/em>case did not emerge in a vacuum. Instead, it forms part of a broader strategy by young people and their supporters to highlight the urgency of the climate crisis, and to force action by governments. Our Children\u2019s Trust, the NGO litigating the claim, also backed the Juliana <\/em>case as well as suits in all 50 states, and currently has cases pending in Florida, Hawai\u2019i, Utah, and Virginia.[94]<\/a> These American cases, in turn, comprise only part of the voluminous youth-led climate litigation movement around the world, many cases of which are based on constitutional and human rights claims.[95]<\/a><\/p>\n As noted above, the immediate implications of the decision are relatively narrow. But the political ramifications could be significant. The decision helps political campaigns craft a broader narrative, demonstrating that governments are failing to live up to the fundamental commitments that they owe to their citizens\u2013and to young people in particular. The court\u2019s finding that the State is a significant cause of injuries to its own children is one that can be used in campaigns to argue that all <\/em>governments have a duty\u2013a moral, if not a legal one\u2013to act more ambitiously on climate change, including by reducing the extraction and consumption of fossil fuels.<\/p>\n Litigation can help these broader political aims in several ways. Most obviously, litigation attracts significant media attention: it is unlikely that the Held <\/em>plaintiffs would have received such significant national attention without having gone to trial.[96]<\/a> But more subtly, litigation success can give these claims an imprimatur of legitimacy, cloaking their arguments in what Professor Stuart A. Scheingold influentially described as \u201cthe myth of rights.\u201d[97]<\/a> These myths can be used as political resources, helping movements gain new followers and supporters, and persuade legislators to take stronger action. The causal pathways between cases such as Held <\/em>are complex and uncertain, and many involve action well beyond the courtroom.<\/p>\n So what happens next? The court\u2019s decision in Held<\/em> bars the state from enforcing either of the laws at issue.\u00a0 The Montana Attorney General\u2019s Office has harshly criticized the decision as \u201ca week-long taxpayer publicity stunt.\u201d[98]<\/a> Referring to some of the barriers experienced by other climate plaintiffs, a spokesperson claimed that \u201cour state has no impact on the global climate.\u201d[99]<\/a> The State will appeal the decision.[100]<\/a><\/p>\n Even if the ruling is upheld, its impact on future Montanan fossil fuel production and consumption will require political will and public support. Taking fossil fuel emissions into account in agency decision-making will make little difference if decision-makers are skeptical that these are real harms, or that they outweigh the economic benefits of continued extraction. And such benefits should not be understated: as of 2021, Montana holds 30% of total recoverable coal reserves in the United States, meaning that it remains a potentially lucrative source of revenue.[101]<\/a> If political elites in the State are able to portray the Held <\/em>decision as a judge forcing Montana to pay for an ultimately global (or even non-existent) problem, they could significantly undermine public legitimacy in the decision\u2013even if it is upheld.<\/p>\n Montana, of course, is a deep-red state. Nevertheless, a 2021 national survey found that a majority of Montanans revealed that they are worried about climate change, and two-thirds of Montanans believed it will harm future generations.[102]<\/a> These figures are lower than the national average, but not by much.[103]<\/a> Certain renewable energy policies, such as tax rebates for energy-efficient vehicles or solar panels, are wildly popular in Montana.[104]<\/a> And the very existence of the environmental rights amendment in the Montana Constitution shows that environmental concerns, and environmental organizing, can bear fruit. The challenge for in-state climate activists will be to demonstrate that cutting back on fossil fuel projects benefits not only the country and the world, but the people in the state itself. The difficulty of such a task should not be understated, but it is not impossible. Decisions like the one issued in Held <\/em>may give the climate justice movement more ammunition in making that case to state agencies, legislators, and the public at large.<\/p>\n <\/a>* S.J.D. Candidate, Harvard Law School. Many thanks to Susan Kath, and to Hannah Perls and the Harvard Environmental & Energy Law Program, for helpful comments on an earlier draft and shorter version of this note.<\/p>\n [1] For recent examples of such judicial interventions, see Am. Elec. Power Co. v. Connecticut, 564 U.S. 410 (2011); Louisiana v. Biden, 64 F.4th 674 (5th<\/sup> Cir., Mar. 16, 2022); Massachusetts v. EPA, 549 U.S. 497 (2007); Utility Air Reg. Group v. EPA, 573 U.S. 302 (2014); West Virginia v. EPA, 597 U.S. ___.<\/p>\n [2]<\/a> See,<\/em> e.g.<\/em>, West Virginia v. EPA, 597 U.S. ___.<\/em><\/p>\n [3]<\/a> See, e.g.<\/em>, the Clean Air Act, U.S.C. 42 \u00a7 7401 et seq., which was last substantially amended in 1990.<\/p>\n [4]<\/a> For a survey of world constitutions, see David Boyd, Good practices on the right to a healthy environment<\/em>, U.N. Doc. A\/HRC\/43\/53 (2020); Sam Bookman, Demystifying Environmental Constitutionalism<\/em>, 54 Envt\u2019l L. (forthcoming 2024).<\/p>\n [5]<\/a> This approach has been most fully developed in Mary Christina Wood, Nature\u2019s Trust: Environmental Law for a New Ecological Age (2014). But see<\/em> Aji P. v. State, 480 P.3d 438 \u00b6\u00b6 56-62 (Wa. Ct. App. 2021) (declining to expand the public trust doctrine to include the climate system).<\/p>\n [6]<\/a> See, e.g.<\/em>, Juliana v. United States, 947 F.3d 1159 (9th Cir. 2020) (denying standing because plaintiffs\u2019 injuries could not be redressed by the Court).<\/p>\n [7]<\/a> See, e.g.<\/em>, Kanuk v. Alaska, 335 P.3d 1088 (2014); Aji P. v. State, 480 P.3d 438, \u00b6 13. (Wa. Ct. App. 2021) (declining to expand the public trust doctrine to include the climate system).<\/p>\n [8]<\/a> See, e.g.<\/em>, Juliana v. United States, 947 F.3d 1159 (9th Cir. 2020).<\/p>\n [9]<\/a> Mont. Const. art. II \u00a7 3.<\/p>\n [10]<\/a> Held v. Montana, No. CDV-2020-307 (1st Dist. Ct. Mont., Aug. 14, 2023). The decision can be found online at: https:\/\/perma.cc\/Q993-VYBC.<\/p>\n [11]<\/a> The others are New York (N.Y. Const., art I, \u00a7 19), Pennsylvania (Pa. Const. art. I, \u00a7 27), Illinois (Ill. Const. art. XI, \u00a7 2), Massachusetts (Mass. Const. art XLIX, amended by <\/em>Mass. Const. art. XCVII), and Hawaii (Haw. Const. art. XI, \u00a7 9). See <\/em>Amber Polk, The Unfulfilled Promise of Environmental Constitutionalism<\/em>, 74 Hastings L.J. 123 (2022).<\/p>\n [12]<\/a> H.R. 971, 2023 Leg., 68th Reg. Sess. (Mont. 2023) (HB 971); and Sen. 557, 2023 Leg., 68th Reg. Sess. (Mont. 2023) (SB 557).<\/p>\n [13]<\/a> Blair Miller, Judge sides with youth in Montana climate change trial, finds two laws unconstitutional<\/em>, Daily Montanan (Aug. 14, 2023), https:\/\/perma.cc\/GVD2-FSDB.<\/p>\n [14]<\/a> Held, <\/em>slip. op. at 2\u20133.<\/p>\n [15]<\/a> Id. <\/em>at 3\u20134, 8.<\/p>\n [16]<\/a> Id. <\/em>at 3.<\/p>\n [17]<\/a> Mont. Code Ann. \u00a7 75-1-201 et seq. (2022).<\/p>\n [18]<\/a> Mont. Code Ann. 75-1-201(2)(a) (2022).<\/p>\n [19]<\/a> Mont. Env\u2019t Info. Ctr. v. Dep\u2019t of Env\u2019t Quality, No. DV-56-2021-1307 (13th Dist. Ct., April 6, 2023) [hereinafter MEIC].<\/p>\n [20]<\/a> Mont. Code Ann. Sec 75-1-201(2)(a) (enacted My 10, 2023). Given the reality of congressional deadlock and disagreement on climate change, that prospect seems extremely unlikely.<\/p>\n [21]<\/a> Mont. Code Ann. Sec 75-1-201(6)(a)(ii) (signed May 19, 2023), amended by <\/em>Sen. 557, 2023 Leg., 68th Reg. Sess. (Mont. 2023) (SB 557).<\/p>\n [22]<\/a> Mont. Const., Art. II \u00a7 3.<\/p>\n [23]<\/a> See generally<\/em> Emily Zackin, Looking for Rights in All the Wrong Places 146-196 (2013). The others are New York (N.Y. Const., art I, \u00a7 19), Pennsylvania (Pa. Const. art. I, \u00a7 27), Illinois (Ill. Const. art. XI, \u00a7 2), Massachusetts (Mass. Const. art XLIX, amended by <\/em>Mass. Const. art. XCVII), and Hawaii (Haw. Const. art. XI, \u00a7 9). For an overview of the history and intent of the framers at that convention, see<\/em> MEIC<\/em>, supra <\/em>note 19, at \u00b6\u00b6 65-77; Held v. Montana, No. CDV-2020-307, 95\u201397 (1st Dist. Ct. Mont., Aug. 14, 2023).<\/p>\n [24]<\/a> See <\/em>Mont. Env\u2019t Info. Ctr. v. Dep\u2019t of Env\u2019t Quality, 1999 MT 248 \u00b6 63, 296 Mont. 207, 988 P.2d 1236 (Mont. 1999).<\/p>\n [25]<\/a> Juliana v. United States, 947 F.3d 1159 (9th Cir. 2020).<\/p>\n [26]<\/a> Id. <\/em>at 11\u201312, (summarizing plaintiffs\u2019 claims as being grounded in the Due Process Clause of the Fifth Amendment, the Ninth Amendment, and the public trust doctrine).<\/p>\n [27]<\/a> Id. <\/em>at 11.<\/p>\n [28]<\/a> Id. <\/em>at 25 (\u201c[I]t is beyond the power of an Article III court to order, design, supervise, or implement the plaintiffs\u2019 requested remedial plan.\u201d).<\/p>\n [29]<\/a>Held v. Montana, No. CDV-2020-307, 17\u201326 (1st Dist. Ct. Mont., Aug. 14, 2023).<\/p>\n [30]<\/a> Id. <\/em>at 46\u201364.<\/p>\n [31]<\/a> Id. <\/em>at 30.<\/p>\n [32]<\/a> Id. <\/em>at 30\u201333.<\/p>\n [33]<\/a> Id. <\/em>at 33 (\u201cFor indigenous youth, like Ruby, Lilian, and Sariel, extreme weather harms their ability to participate in cultural practices and access traditional food sources, which is particularly harmful to indigenous youth with their place-based cultures and traditions.\u201d).<\/p>\n [34]<\/a> Id.<\/em> at 33.<\/p>\n [35]<\/a> Id. <\/em>at 35\u201346.<\/p>\n [36]<\/a> Id. <\/em>at 46\u201364.<\/p>\n [37]<\/a> Id. <\/em>at 33.<\/p>\n [38]<\/a> Id. <\/em>at 66.<\/p>\n [39]<\/a> Id.<\/em> at 67.<\/p>\n [40]<\/a> Id. <\/em>at 68.<\/p>\n [41]<\/a> Id.<\/em> at 67.<\/p>\n [42]<\/a> Id. <\/em>at 69.<\/p>\n [43]<\/a> Id. <\/em>at 70.<\/p>\n [44]<\/a> Id. <\/em>at 86\u201390. This three-part standing test applied by the court follows the same structure as United States federal law. See e.g. <\/em>Allen v. Wright, 468 U.S. 737 (1984).<\/p>\n [45]<\/a> Held v. Montana, No. CDV-2020-307, 87 (1st Dist. Ct. Mont., Aug. 14, 2023) (\u201cPlaintiffs\u2019 mental injuries stemming from the effects of climate change on Montana\u2019s environment, feelings like loss, despair, and anxiety, are cognizable injuries.\u201d).<\/p>\nI\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Introduction<\/h2>\n
II\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The Decision<\/h2>\n
A \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Background<\/h4>\n
B\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The Evidence<\/h4>\n
C\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The Legal Analysis<\/h4>\n
III\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 What We Learned<\/h2>\n
A\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The Potential of State Constitutional Law<\/h4>\n
B\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 A Model for Tackling Standing and Causation<\/h4>\n
C\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Keeping it Narrow<\/h4>\n
D\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Beyond the Courtroom<\/h4>\n
IV\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 What Happens Next?<\/h2>\n