Monday, September 25, 2023
Monday, September 25, 2023

A deep red state just delivered a huge win for climate justice

by admin
A deep red state just delivered a huge win for climate justice

While national media focused on a Georgia courtroom Monday, other significant legal news broke thousands of miles away. In Montana, a judge ruled in favor of 16 young people who sued the state over a law that barred state officials from considering climate change in environmental reviews of energy policies.

Judge Kathy Seeley of the Montana 1st Judicial District Court found that the law violated the state constitution’s right to a clean environment by turning a blind eye to the ways that fossil fuels worsen climate change. The decision may have ripple effects around the world.

Even before Seeley’s ruling, this case was already unusual: It was only the second trial ever where climate scientists took the stand, were placed under oath and were subjected to cross-examination. (In the first trial, in Vermont back in 2007, the side favoring climate action won.) Montana had hired its own climate scientist as an expert witness who was going to downplay the dangers of climate change. In the end, the state did not even put her on the stand — perhaps deciding that the plaintiffs’ evidence was so compelling that they didn’t want to pick this battle.

The court’s decision was eagerly awaited by environmental lawyers not only in the U.S. but around the world.

Seeley’s ruling reflected the evidence presented to her. “There is overwhelming scientific consensus that Earth is warming as a direct result of human GHG [greenhouse gas] emissions, primarily from the burning of fossil fuels,” she wrote. So long as greenhouse gas emissions stay at high levels, the Earth will keep getting warmer and the climate impacts we are already seeing — wildfires, drought, sea-level rise, extreme heat — will keep getting worse.

The burden of this crisis, Seeley noted, will fall disproportionately on the plaintiffs (who range from 5 to 22 years old) and other young Montanans. “Children born in 2020 will experience a two to sevenfold increase in extreme events, particularly heatwaves, compared with people born in 1960,” she noted. Based on the testimony from the plaintiffs and several physicians, Seeley wrote that children are “disproportionately vulnerable” to the impacts of climate change and air pollution, both psychologically and physiologically.

Crucially, the state’s constitution says that all Montanans have “certain inalienable rights,” including “the right to a clean and healthful environment,” and that “the state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations.” Yet a provision in the Montana Environmental Policy Act, as summarized by Seeley, “forbids the State and its agents from considering the impacts of … emissions in their environmental reviews.” Not mincing words, the court found that “catastrophic harms … will worsen if the State continues ignoring GHG emissions and climate change” — especially since renewable energy sources such as wind and solar are cheaper, more efficient and widely available. Thus, Seeley concluded, the MEPA provision violates the Montana Constitution.

The state’s attorneys have already said they will appeal the ruling to the Montana Supreme Court. (They had earlier tried to get that court to prevent the trial from even happening, but the court unanimously refused.) The state Supreme Court is the last stop for this case; the U.S. Supreme Court does not take cases like this one that are based purely on state law.

This does not mean that the state will necessarily change its energy policies; it merely needs to consider climate change in setting these policies. Perhaps some officials, seeing how Montana’s support of fossil fuels harms the health of its residents, will change the state’s policies. And if they do not, this information could provide ammunition for other challenges to these policies.

The pace of climate litigation around the world has accelerated in the last few years.

The court’s decision was eagerly awaited by environmental lawyers not only in the U.S. but around the world. The decision is most relevant to the other states whose constitutions declare environmental rights — Hawaii, Pennsylvania, Illinois, Massachusetts, Rhode Island and (most recently) New York. An upcoming trial in Hawaii about the state’s transportation policies will test this. The decision may also energize efforts to adopt green amendments in other states.

The ruling’s impact could be felt globally as well. As the executive and legislative branches of almost every country have failed to take adequate action on climate change, and as extreme weather events worsened by climate change (most recently the conflagration in Maui) become alarmingly frequent, more and more people are looking to the courts. About 150 countries have environmental rights clauses in their constitutions. This decision, while not binding elsewhere, may well inspire similar cases in some of those jurisdictions, seeking orders (as some courts have already issued) requiring governments to, at last, act strongly on climate change.

The pace of climate litigation around the world has accelerated in the last few years, with each new case building on prior victories; the Montana decision now becomes another building block.

Michael B. Gerrard

Michael B. Gerrard is a professor at Columbia Law School and founder and faculty director of the Sabin Center for Climate Change Law.

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