Posted on August 15, 2023 by Seth Jaffe
Yesterday, the plaintiffs prevailed in the Montana climate litigation. Time will tell whether the decision will end up being seen as a watershed moment or just a blip. In trying to answer that question, it does seem worth briefly reviewing what the case was actually about and what the decision says.
First, it’s important to acknowledge that the decision’s formal reach is limited. It found unconstitutional and permanently enjoined enforcement of a provision in the Montana Environmental Policy Act that forbids consideration of the impacts of climate change in environmental impact reviews. The basis for the Court’s decision was straightforward. Article IX, Section 1, of the Montana Constitution provides that:
(1) The state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations.
(2) The legislature shall provide for the administration and enforcement of this duty.
(3) The legislature shall provide adequate remedies for the protection of the environmental life support system from degradation and provide adequate remedies to prevent unreasonable depletion and degradation of natural resources.
There are two notable aspects here. First, while many states have similar constitutional provisions, not all do. Second, Article IX, Section 1(3) turned out to be very important. The Court relied on the text of Section 1(3) in concluding that Article IX provides a judicial remedy to enforce the protection of Article IX. Specifically, section 1(3) rendered unconstitutional efforts by the Montana legislature to preclude litigation challenging the limitation on MEPA review. Again, some other state constitutions may have similar provisions, but not all do.
Finally, it’s also significant that the Montana Supreme Court had already interpreted Article IX, Section 1, including one decision containing the simple statement that:
MEPA is an essential aspect of the State’s efforts to meet its constitutional obligations.
I’m not a Montana lawyer and I know nothing about the current composition of the Montana Supreme Court, but I will say that, if the Montana Supreme Court has respect for precedent, there’s a very good chance that this decision will be affirmed on appeal.
The more important question is what impact this decision will have on other climate cases. That’s even more difficult to assess, because the answer depends on subjective factors such as momentum and atmospherics and, dare we say, the weather outside, as much as it depends on state constitutional provisions and jurisprudence.
I’ll only point out, as I’ve written previously, that in the examples of tobacco litigation and gay marriage litigation, the plaintiffs lost case after case until, all of a sudden, they didn’t. I’m not sure we’re at that tipping point in climate litigation, but that’s the thing about tipping points; they’re really only visible in retrospect.