Our Perspectives on the Latest Issues
On August 14, 2023, a Montana state trial court decided that the legislature violated the people's constitutional right to a "clean and healthful environment" by exempting climate change from the standard environmental review to which major projects are subject. It did so after a week-long trial in which the state made no serious effort to challenge the scientific validity of human-caused climate disruption.
While many climate cases are pending, Held v. Montana is the first constitutional climate decision in the U.S. based on a trial—and climate disruption lost.
The story is not over because Montana's attorney general has appealed the decision to the state's supreme court. But that court has already held that two other legislative exemptions to environmental laws violate the right to a “clean and healthful environment.”
The case began in March 2020 when 16 Montana youth filed suit. Since 1971, the Montana Environmental Policy Act has required the state to assess the environmental impact of proposed major state actions that may significantly affect the environment. More recently, the legislature adopted an exemption to that act. As the trial court explained, the exemption "bars agencies from considering [greenhouse gas] emissions and climate impacts for any project or proposal, even to assess whether the project complies with the Montana Constitution."
In its decision, the trial court made detailed findings of fact about:
The court held that the plaintiffs "have a fundamental constitutional right to a clean and healthful environment, which includes climate as part of the environmental life-support system."
The exemption infringes on that right, the court held, and thus is subject to strict scrutiny. Under Montana constitutional law, a law (like this exemption) that infringes on a fundamental right can still be constitutional if it survives strict scrutiny review. To do so, the law must be narrowly tailored to serve a compelling government interest.
The state did not provide any evidence on this issue. Therefore, the trial court held the exemption to be unconstitutional and enjoined the state from acting in accordance with it.
On the merits, the attorney general's appeal must address prior Montana Supreme Court decisions that appear to weigh strongly against the state.
In Montana Environmental Information Center v. Department of Environmental Quality (1999), the state legislature exempted arsenic discharges from groundwater pumping tests from review under the state's water quality nondegradation statute. The plaintiffs claimed the exemption violated their right to a "clean and healthful environment.”
They demonstrated that the tests would increase the concentration of arsenic in the receiving water above the concentration that would have required review under the nondegradation statute. The exemption, the state's Supreme Court held, thus intrudes on the plaintiffs' right to a "clean and healthful environment."
In a later case, Park County Environmental Council v. Montana Department of Environmental Quality (2020), the Montana Supreme Court held that a legislative exemption to MEPA violated the right to a" clean and healthful environment." The amendment barred courts from issuing injunctions to prevent violations of MEPA.
In this case, the Department of Environmental Quality approved an exploration permit for mining in the Yellowstone River watershed 15 miles from Yellowstone National Park. However, its MEPA analysis did not adequately analyze wildlife and water quality effects. Under the statutory amendment, the company would have been able to continue conducting exploration activities while the MEPA defects were being corrected.
The court held the amendment unconstitutional on its face, using strict scrutiny analysis, because it removed "the Plaintiffs' only available remedy adequate to prevent potential constitutionally-proscribed environmental harms."
MEPA requires environmental impacts to be considered before a decision. But if the state considers these impacts, MEPA does not stop the state from approving a fossil fuel project that will be environmentally damaging. So even if the plaintiffs win on appeal, coal mines, gas wells, and oil and gas pipelines may continue to be approved.
However, the state would be required to provide public information about the climate change impacts of these projects and alternatives to them. This information is likely to have some negative effect on these projects. Otherwise, the legislature would not likely have passed the exemption.
Pennsylvania’s constitution (Article I, Section 27) recognizes that the people have a right to “clean air, pure water,” and the preservation of certain environmental values. This is similar to the right to a “clean and healthful environment” in Montana. Article I, Section 27 also requires the Commonwealth to “conserve and maintain” public natural resources for the benefit of present and future generations. There is nothing like that in Montana’s constitution.
Pennsylvania has no statute like MEPA. Still, Article I, Section 27 could be an effective tool to address climate change. Robert McKinstry, an environmental attorney, and I have argued that in an article.
In a recent case, petitioners challenged a PA Department of Environmental Protection (DEP) regulation that would reduce carbon dioxide emissions from major power plants. They allege that this regulation, which would enable Pennsylvania to join the Regional Greenhouse Gas Initiative (RGGI), was not authorized by the state's Air Pollution Control Act. The Commonwealth Court agreed with them and issued a preliminary injunction against the regulation in 2022.
On appeal to the Pennsylvania Supreme court, the Widener Commonwealth Environmental Law and Sustainability Center and Robert McKinstry, as well as PennFuture, supported the regulation. In separate friend-of-the-court briefs, we argued that DEP has statutory authority and that Article I, Section 27 supports the state's authority to adopt this regulation. A decision on that appeal is pending.
On November 1, the Commonwealth Court issued a permanent injunction against the RGGI regulation. Governor Josh Shapiro has 30 days to appeal that decision to the PA Supreme Court.
Constitutional provisions like those in Montana and Pennsylvania are not silver bullets for fighting climate change. But they can play an essential role in the effort.