On August 14, 2023, a Montana trial court held a Montana statute forbidding state agencies from considering the impacts of climate change and greenhouse gas (GHG) emissions in environmental reviews to be unconstitutional. The Montana constitution provides a “fundamental constitutional right” to a “clean and healthy environment.” (Order at p. 102, ¶ 7.)

Montana’s constitution is unusual in its declaration of a clean and healthy environment as a fundamental right. But despite the case being limited to a conflict between statutory and constitutional provisions, the court’s findings serve as a warning to industry facing potential liability relating to climate change.

Standing and harm

Prior unsuccessful lawsuits alleging harm as a result of climate change have failed in part due to the plaintiff(s) failing to allege an injury distinct or particular from the greater population. The plaintiffs’ alleged injuries here varied widely – from stress and despair related to how climate change impacts will affect a plaintiff’s wellbeing, or decreased fishing opportunities due to drought, or anxiety caused by preparing to evacuate due to wildfires, to increased coughing and difficulty breathing due to wildfire smoke.

The Montana trial court found that injuries to the plaintiffs’ “physical and mental health, homes and property, recreational, spiritual, and aesthetic interests, tribal and cultural traditions, economic security, and happiness” were cognizable injuries, and without further elaboration, that the plaintiffs suffered concrete, particularised, and distinguishable injuries as a matter of law.

Causation

Prior unsuccessful claims alleging harm as a result of climate change have also failed in part due to the improbability of linking a product/emission/activity to the alleged harm. But the Montana trial court found causation via a “fairly traceable connection” between the State’s refusal to consider the impacts of climate change and GHG emissions in environmental reviews (as required by statute) and the “allowance of resulting fossil fuel GHG emissions, which contribute to and exacerbate Plaintiff’s injuries.”(Id. At p. 87, ¶ 12, emphasis added.)

Implications

A constitutional right to a clean and healthy environment and a statute in direct conflict with that fundamental right make this case atypical in the climate change litigation landscape. But industry should pay attention to findings made by the Montana trial court with potentially widespread application. The court’s recognition that harm may, even when considered only in totality, include subjective claims such as limited access to tribal and cultural traditions, impacts to recreational, spiritual, or aesthetic interests, and a person’s emotional well-being widens a previously narrow definition of harm. And the court’s further finding of causation between the harms alleged and the extraction, refinement, and use of fossil fuels, both scientifically and as a matter of law, should serve as a caution to industry facing, or potentially facing, litigation related to climate change impacts.  

Next steps

• The Montana Attorney General announced it will be appealing to the state Supreme Court.
• For further and up to date information, please contact Megan R. Nishikawa.

Authored by Megan R. Nishikawa.