Vol. No. 54-1 Natural Resources
Natural Resources
Held v. Montana, West Virginia v. EPA, and the Future of Climate Litigation
Introduction
In August 2023, a Montana state judge issued a landmark climate ruling in the case Held v. Montana. In a case brought by youth plaintiffs challenging the constitutionality of a provision of the Montana Environmental Policy Act (MEPA), District Court Judge Kathy Seeley held in a declaration of law that the state’s failure to take climate change and greenhouse gas emissions into account when approving state projects was unconstitutional.[1] The case represents years of effort by youth activists and environmental groups across the country, who have brought cases alleging state constitution violations to achieve environmental wins. While other youth activist cases challenging states and their dependence on fossil fuels were plagued by procedural setbacks[2] and skeptical judges,[3] the Montana case is not only the first to go to trial, but also the first to go to trial and win.
Held is a landmark case because it gives insight into the future of climate litigation. Held occurred against a backdrop of a rapidly warming climate[4] and a federal judiciary that has placed greater barriers on the ability of federal agencies to address major issues such as climate change.[5] But, as Held signals, federal action is not the only way forward. Instead, plaintiffs, like the youth plaintiffs in Held, are increasingly willing to bring challenges under state law.[6] Reorienting climate litigation around state, rather than federal, law is a new front in the fight against climate change. And, as Held demonstrates, that new front could create important climate wins.
Montana v. Held
Held was filed in 2020 by sixteen young Montanans, then ranging in age from two to eighteen years old.[7] Their complaint challenged the constitutionality of a provision of MEPA. The challenged provision “forbids the State and its agents from considering the impacts of greenhouse gas (GHG) emissions or climate change in their environmental reviews” of state actions.[8] The plaintiffs challenged the provision based on a section of the Montana state constitution that provides residents with “the right to a clean and healthful environment,” and further places responsibility on the state to ensure a healthful environment “for present and future generations.”[9]
The youth plaintiffs successfully argued that the existence of climate change was already causing harm to the natural resources of the state,[10] which was a direct result of emissions in the state, largely coming from the state’s fossil fuel industry.[11] Those emissions only increased as the state permitted and approved additional fossil fuel projects without first undertaking a full environmental review.[12] As Judge Seeley concluded, that caused direct harms to the plaintiffs.[13] Therefore, the challenged provision was “facially unconstitutional” because it directly contravened a provision of the state constitution by precluding the state from considering the effects of something known to diminish the healthful environment of the state.[14] The court then applied strict scrutiny because the MEPA provision implicated “Plaintiffs’ fundamental right to a clean and healthful environment.”[15] Judge Seeley ultimately concluded that the provision did not “serve a compelling government interest,” and even if there was such an interest, the provision was “not narrowly tailored to serve any interest.”[16] Thus, the provision was invalid, giving the youth plaintiffs one of the most important litigation wins of the decade and possibly signaling a path forward for future environmental claims.
Climate Litigation Post-Held
Held did not occur in a vacuum—it occurred against a backdrop of two competing forces. The first force is what motivated the Held plaintiffs to bring their case in the first place: climate change. Over the past summer, the world shattered heat records. June 2023 was the hottest June on record.[17] July was the hottest July on record.[18] And August was the hottest August on record.[19] The most recent summer of extreme heat followed eight of the hottest years on record.[20] These records have exacerbated extreme weather events across the country.[21] Further, in Montana specifically, Judge Seeley found that climate change is currently “degrading” Montana’s environment through “changing precipitation patterns, increasing droughts and aridification, increasing extreme weather events, increasing severity and intensity of wildfires, and increasing glacial melt and loss in like droughts and wildfires.”[22] That is the reality that the youth plaintiffs found themselves in, and it is what motivated them to bring their action against the state.
The Major Questions Doctrine and Increasing Limitations on Federal Action
The second force is the movement opposing large-scale agency actions that has overtaken the federal judiciary. This force culminated in the 2022 Supreme Court decision West Virginia v. EPA. West Virginia presented a challenge to the Obama Administration’s Clean Power Plan (CPP). The CPP was the Administration’s major climate action that attempted to curb greenhouse gas emissions from coal-burning power plants. The CPP used an infrequently utilized provision of the Clean Air Act to not only increase emission controls within power plants but to also force generation shifting away from coal power and towards renewable sources.[23] The Court ultimately invalidated the CPP using the newly minted major questions doctrine.[24]
According to the Court, in cases of great political or economic importance, an agency, such as the Environmental Protection Agency (EPA), must point to clear congressional authorization to take valid administrative action.[25] In practice, the major questions doctrine is a limit on a federal agency’s ability to address regulatory issues through comprehensive and systematic rules. By their nature, few statutes are written with the level of precision required under the doctrine. Therefore, federal agency actions to address major problems like climate change are likely to be met with skepticism by the federal judiciary, thereby creating a void in the fight against climate change. However, as Held demonstrates, the void creates an opportunity for independent state actions, specifically to use state constitutions to undertake protective actions that are now more difficult on a federal level.
Green Amendments and the Growing Importance of State Constitutions
The amendment to the Montana Constitution at the center of Held was passed in the 1970s, at the beginning of the modern environmental movement.[26] That movement launched in response to growing public awareness of environmental harms from rampant pollution.[27] States responded to the movement by adding environmental provisions into their state constitutions. These so called “green amendments” varied in coverage, but at their core, they provide protections for the environments of their respective states.[28] For most of the intervening fifty years, these state provisions went largely unused.[29] However, as seen in Held, they have now reemerged with a newfound importance.
As of October 2023, Hawaii, Illinois, Montana, New York, Pennsylvania, Massachusetts, and Rhode Island all have green amendments within their state constitutions.[30] Additionally, fifteen other states have ongoing campaigns to codify similar amendments within their own constitutions.[31] These amendments work in two ways. They enable states to affirmatively enact legislation to more directly address issues posed by climate change,[32] and they also give litigants a means to enforce climate protections.[33] For climate activists, the cause of action created by such amendments is especially important in major fossil fuel producing states such as Montana and Pennsylvania, which might otherwise be hesitant to take aggressive steps to curb emissions.[34]
While the use of Montana’s green amendment presents a fair amount of promise for activist litigants, it is unlikely that the success of Held will be the silver-bullet solution long-sought by environmentalists.[35] First, the impact of Held may be limited, because it is unclear how much persuasive value the decision will have since other courts have yet to consider it. Second, outside of Pennsylvania, states with green amendments are not among the highest greenhouse gas-emitting states in the country.[36] The movement to adopt green amendments largely occurs outside of the states that most need to limit their greenhouse gas emissions.[37] Instead, the movement focuses on states with existing plans to address climate change and reduce emissions.[38] Lastly, it is unclear what tangible effects Held will have. The youth plaintiffs failed to secure an injunction to force the state to act; instead, Judge Seeley’s ruling was limited to a declaration of law.[39] Furthermore, the state has promised to appeal the decision to the Montana Supreme Court.[40] These actions may ultimately limit Held’s impact. Nevertheless, Held is an important first step toward addressing the issue of climate change by filling the void left in the aftermath of West Virginia.
Conclusion
The Supreme Court’s decision in West Virginia limited the ability of federal agencies to address complex problems. But there is still an opportunity for action at the state level. While the decision in Held may not be the key in the fight against climate change, it remains an important example of the kind of action that can occur within states. Specifically, it creates an important model for future litigants hoping to capitalize on the inclusion of green amendments in state constitutions. And it signals a wider willingness within state judiciaries to embrace the arguments raised by environmental litigants about the deleterious effects of climate change.
Francesca Eick is a Senior Associate with Baker Botts in Austin. Ms. Eick’s practice focuses on regulatory compliance, permitting, litigation, and transactions involving environmental, land use, natural resource, and energy issues. Ms. Eick has advised public and private clients on matters relating to a range of environmental statutes including the Clean Water Act (CWA), the Endangered Species Act (ESA), the Clean Air Act (CAA), and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).
Julie Molina is a 3L from Houston, Texas. She attended New York University and joined TELJ during her second year of law school. Julie will be practicing in the field of environmental law at a firm upon her graduation.
[1] Held v. Montana, 2023 MT Dist. Ct. CDV-2020-307, ¶ 60–67 at 100–02.
[2] See Juliana v. United States, 947 F.3d 1159 (9th Cir. 2020).
[3] See Reynolds v. Florida, No. 2018-CA-819, 2020 WL 3410846, at *1 (Fla. Cir. Ct. June 10, 2020) (dismissing the complaint by youth plaintiffs because “[t]he claims are inherently political questions that must be resolved by the political branches of government.”).
[4] Rebecca Lindsey & Luann Dahlman, Climate Change: Global Temperature, Nat’l Oceanic & Atmospheric Admin. (Jan. 18, 2023), https://www.climate.gov/news-features/understanding-climate/climate-change-global-temperature.
[5] See Daniel Deacon & Leah Litman, The New Major Questions Doctrine, 109 Va. L. Rev. 1009, 1036 (2023) (discussing the Supreme Court’s development of the major questions doctrine and its impact on federal agency action: “[T]he new major questions doctrine functions as a kind of carve out to an agency’s authority broad, but generally worded authority. Congress must clearly and explicitly authorize the particular agency action at issue. If Congress has not done so, that is the end of the matter.”); see also West Virginia v. Env’t Prot. Agency, 142 S. Ct. 2587 (2022).
[6] See generally Held, No. CDV-2020-307; Juliana, 947 F.3d at 1159; Reynolds, 2020 WL 3410846.
[7] Held, No. CDV-2020-307 ¶1 at 9.
[8] Id. at 2.
[9] Mont. Const. art. IX, pt. IX, § 1.
[10] Held, No. CDV-2020-307 ¶140 at 35.
[11] David Gelles & Mike Baker, Judge Rules in Favor of Montana Youths in a Landmark Climate Case, N.Y. Times (Aug. 14, 2023), https://www.nytimes.com/2023/08/14/us/montana-youth-climate-ruling.html?smid=url-share (“Montana has 5,000 gas wells, 4,000 oil wells, four oil refineries and six coal mines.”).
[12] Held, No. CDV-2020-307 ¶265k at 79.
[13] Id. at ¶138 at 34.
[14] Id. at 100.
[15] Id. at 94.
[16] Id. at 100–01.
[17] Julie Bosman, Why Summers May Never Be the Same, N.Y. Times (Oct. 5, 2023),
https://www.nytimes.com/2023/10/05/us/summer-climate-change.html.
[18] Id.
[19] Id.
[20] Henry Fountain & Mira Rojanasakul, The Last 8 Years Were the Hottest on Record, N.Y. Times (Jan. 10, 2023), https://www.nytimes.com/interactive/2023/climate/earth-hottest-years.html.
[21] Bosman, supra note 17.
[22] Held, No. CDV-2020-307, at 35.
[23] West Virginia, 142 S. Ct. at 2596.
[24] Id. at 2616.
[25] Id.
[26] Eric Dietrich, As It Turns 50, Is Montana’s ‘Progressive’ State Constitution Facing a Conservative Midlife Crisis?, Mont. Free Press (Mar. 21, 2022), https://montanafreepress.org/2022/03/21/montana-constitution-50th-birthday-midlife-crisis/.
[27] Id.
[28] Green Amendment, Nat’l Caucus of Env’t Legislators, https://www.ncelenviro.org/issue/green-amendment/ (last visited Nov. 15, 2023).
[29] Amanda Eggert, How the Montana Constitution Shapes the State’s Environmental Landscape, Mont. Free Press (Mar. 24, 2022), https://montanafreepress.org/2022/03/24/montana-constitution-environment-stream-access/.
[30] Evan George, Will More States Add Green Amendments to Their Constitution?, LegalPlanet (Aug. 30, 2023), https://legal-planet.org/2023/08/30/will-more-states-add-green-amendments-to-their-constitution/.
[31] Id.
[32] See Green Amendment, supra note 28.
[33] See Held, No. CDV-2020-307, at 102.
[34] See How Much Energy Does Your State Produce, Dep’t of Energy (Nov. 10, 2014), https://www.energy.gov/articles/how-much-energy-does-your-state-produce#:~:text=In%20fact%2C%20the%20top%20five,five%20fossil%20energy%2Dproducing%20states.
[35] George, supra note 30.
[36] See Energy-Related Carbon Dioxide Emissions by State, 2005-2016, Energy Info. Admin. (Feb. 27, 2019),
https://www.eia.gov/environment/emissions/state/analysis/.
[37] See id.; Jennifer Hijazi & Drew Hutchison, Montana Climate Ruling Boosts Case for States’ Green Amendments, Bloomberg L. (Aug. 29, 2023), https://news.bloomberglaw.com/environment-and-energy/montana-climate-ruling-boosts-case-for-states-green-amendments.
[38] For example, New York, Hawaii, Rhode Island, Massachusetts, and Montana already have net zero goals in place. See Rona Cohen, States with Net-Zero Carbon Emissions Targets, CSG E. (Mar. 24, 2023), https://csg-erc.org/states-with-net-zero-carbon-emissions-targets/.
[39] George, supra note 30.
[40] Gelles & Baker, supra note 11.