I recently wrote an article about children and youth in Canada tackling climate change through environmental litigation. Despite limited results, their efforts have been impressive. A similar case from south of the border is currently generating considerable interest. Held v. State of Montana, which was decided in August 2023, involves a successful constitutional challenge to state law brought by 16 youth plaintiffs. When the lawsuit commenced, the plaintiffs were between the ages of two and 18 years. The defendants consisted of various state authorities.
Held v. State of Montana addresses provisions of the Montana Environmental Policy Act, in existence since 2011. The 2011 version of the Act prohibited the state from considering any environmental impact outside of Montana’s borders when conducting an environmental review – specifically, it could not include “actual or potential impacts that are regional, national, or global in nature”. In 2023, the Act was amended to specifically state that environmental reviews “may not include an evaluation of greenhouse gas emissions and corresponding impacts to the climate in the state or beyond the state's borders."
The later amendments also removed remedies available to the public and litigants in environmental protection matters. The Court’s decision reviewed the limiting statutory provisions against the backdrop of the State Constitution, which provides that the “state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations.” Ultimately, the Court declared the challenged laws to be unconstitutional and permanently enjoined. It also prohibited the State defendants from acting in accordance with the impugned statutory provisions.
What I personally found refreshing about the decision was the significant effort made by the District Court Judge who heard the case to humanize the plaintiffs in her judgement. The individual circumstances of the children and youth before her remained central in her reasons. After succinctly setting out scientific facts relating to greenhouse gas emissions and the impacts of climate change in Montana, the Judge poignantly described the respective physical, emotional, financial, social, cultural, and other hardships experienced by each of the plaintiffs. For instance, when discussing one youth the judge wrote,
Sariel was excited to receive her Salish name, which means “Person Who Brings the Cedar.” Cedar has important cultural significance because it provides a connection through the land to the Creator.
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Sariel is concerned about how climate change affects the seasons because her culture is very ingrained with the land and the seasons. It also affects plants and foods her tribe needs to survive, and she is concerned that these changes will change the community itself. Because of earlier-than-normal snowmelt and the consequent drying of mountain streams as a result of climate change, plants used in the Salish and Kootenai medicines are becoming scarcer and more difficult for tribe members to gather.
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Climate change impacts Sariel’s ability to partake in cultural and spiritual activities and traditions, which are central to her individual identity. Climate change has disrupted tribal spiritual practices and longstanding rhythms of tribal life by changing the timing of natural events like bird migrations.
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Climate change has a profound emotional impact on Sariel, who experiences stress and despair about the impacts her community is facing due to climate change.
When considering another youth affected by increasing wild fires resulting from climate change, the judge observed:
Olivia has exercise-induced asthma and is therefore particularly vulnerable to smoke-filled air. In smoky conditions, Olivia feels she is suffocating if she spends more than thirty minutes outdoors. During smoky conditions, Olivia is forced to stay inside and reduce or eliminate outdoor activities she enjoys. Olivia has been forced to spend recent summers away from Montana due to the smoke-filled air and her asthma.
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For Olivia, climate anxiety is like an elephant sitting on her chest and it feels like a crushing weight. This climate anxiety makes it hard for her to breathe.
Throughout her decision, the Judge persuasively outlines the science of climate change, its effects on the environment in Montana and its children and youth, and clearly connects the State’s contributions through “statutorily mandated disregard of climate change” to the harms suffered by the individual plaintiffs.
Held v. Montana has limited application in Canada, where the constitution does not explicitly provide for a right to a clean or healthy environment. This has left advocates in this country to argue that such protection be read into sections 7 and 15 of the Charter. The subject of the Montana litigation was also quite narrow, focusing on the constitutionality of specific legislative provisions rather than attempting to compel positive government action.
The State has apparently indicated an intent to appeal the decision. However, for now, the decision stands as a powerfully written endorsement of the rights of children and youth to a clean and healthy environment.
About the Author
Laura Pettigrew is General Counsel with the Office of the Ontario Ombudsman.
The views expressed are those of the writer and do not necessarily represent the views or opinion of the Office of the Ontario Ombudsman.
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