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This past week, a judge in Montana shook up the climate change movement.
Sixteen young Montanans had sued their state three years ago, arguing that it had been negligent in considering the impacts of climate change on their health and well-being. Rikki Held, the oldest of these plaintiffs, described how climate change-induced weather events had damaged her father’s ranch: “Things like wildfires, smoke, drought and water variability, less snow pack, more extreme events such as hail that damages crops and stronger windstorms, things like that.” The constitution of Montana, a state that prides itself on the nickname “The Last Best Place,” promises its citizens “a clean and healthful” environment. But the state has broken its promise, the plaintiffs said.
This was not the first such lawsuit brought by young Americans; at least 14 prior cases have been dismissed. And there have been at least 34 other cases brought by young people against governments around the world: in the Netherlands, in Indonesia, in Australia, and elsewhere. And in climate cases more broadly, roughly 50% of cases have resulted in legal decisions that are favorable to climate action.
The Montana decision could easily end up as a model for judges handing down climate change decisions in other states; at the very least, it will inspire more litigation and action. The nonprofit that represented the 16 Montanans, Our Children’s Trust, has four similar cases in courts in other states; a fifth, Juliana v United States, has stuttered and stumbled since 2015, batted back and forth between courts, but it was cleared for trial in June. That will entail the federal government itself—the biggest fish in the world of climate litigation—stepping in to defend itself and its history of missteps and lethargy on climate change.
THE BACKSTORY
In the 1960s, a wave of progressive energy built and collided against Montana’s belching, spewing, polluting industries. For a state that had prided itself on its natural beauty—for being “a great splash of grandeur,” as John Steinbeck once wrote—its environment was growing filthy, even deadly.
The copper mining industry ruined the air; Robert Kovach, a historian, wrote about Butte, “thick with the deadly corrosive fumes of sulphur, arsenic, and smoke from the open roasting of its ores and from the stacks of its smelters.” In Missoula, Martha Onishuk, a member of Gals Against Smog and Pollution (GASP), remembered visiting a pulp mill. “Oh, man, I got home; my coat just stunk,” she recalled later, in an oral history project. The mill was just dumping its spent acid into ponds in the area, GASP discovered. It was time for change.
The environmental movement in Montana was a major engine in the drive to rewrite the state’s constitution, in 1972. When a constitutional convention assembled in Helena, delegate after delegate pressed for protections for the environment. Others opposed such language in the document, of course—and to them, one delegate named Bob Campbell said: “Some little kid is going to come up to me or you and say ‘What did you do about my environment in the future?’ And you’re going to have to say, ‘We decided to have one.’”
One key element of the new constitution emerged out of those discussions, enshrined as an inalienable right. Section 1 of Article IX states:
(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
These clauses formed the very basis of the climate trial that has just concluded in Montana. Campbell was right, it turned out: The kids of the future had turned around to ask the state questions. Now, it’s up to Montana to find answers.
BY THE DIGITS
2: The age of Nathaniel K., the youngest plaintiff, when the original complaint was filed in March 2020
22: The number of expert reports submitted during the Montana court proceedings
50,000+: The number of pages of documentation reviewed
36: The number of depositions taken
27: The number of witnesses who gave court testimony
172: The number of exhibits cited during the trial
THE LAST, WORST PLACE
Well before the trial concluded, the government of Montana had already confirmed that it would appeal any decision that went against it. If it does, the next stop is the Montana Supreme Court—but subsequent ping-pong appeals will all end up in the US Supreme Court.
For the plaintiffs, that eventuality is a bleak one. The present Supreme Court has certainly demonstrated its impatience with progressive climate action. Last year, for instance, the court limited the Environmental Protection Agency’s powers to curb carbon emissions; this past May, it sided with an Idaho couple (pdf) in shrinking the protection afforded to wetlands.
The court’s willingness to hear disputes escalated from states is mixed, however. Two years ago, the Supreme Court ruled in favor of BP, Chevron, Exxon Mobil, Royal Dutch Shell, and other energy firms in a lawsuit brought by the city of Baltimore, which was pressing for damages over their role in bringing about climate change. In April this year, though, the court turned away appeals from many of the same companies after they lost climate change actions brought by municipalities in lower jurisdictions.
The young Montanans’ best hopes lie, perhaps, in their state’s top court ruling in their favor—and in the US’s top court letting that decision stand. But it’s more likely that their case will be clubbed with others, including Juliana v United States, resulting in a hearing that will be keenly watched the world over.
ONE ⛰️ THING
Montana’s unofficial nickname, “The Last Best Place,” is intimately tied to both the state’s pristine environment and the industries that threatened to destroy it. In its syntax, the reporter Robert Struckman wrote for the Missoulian, the phrase recalls the mining projects of the early 20th century, which had names like “Last Chance Gulch” and “Last Hope.”
The phrase first appeared in print, as far as we know, in a 1983 book, A Beast the Color of Winter. Written by the biologist Douglas Chadwick, the book was a manifesto for the preservation of Rocky Mountain goats. Two-thirds of the way through the book, Chadwick visits the Bob Marshall Wilderness Area—“the Bob”—in western Montana and contemplates a future of environmental ruin for it, the kind he has seen elsewhere in the state.
“I tried to envision, in the heart of the Bob, the blasting; the steady thrum and churn of drill rigs and pumps, trucks gearing down through the passes, following pipelines into town; refineries (necessary within a few miles of the wellhead to remove pipeline-corroding sulfur) lighting up the goat rocks at night, removing even the possibility of starlight,” Chadwick wrote. “I managed to envision industrializing the Bob. But I couldn’t accept it. Not here. Not in the last, best place.”
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Have a super weekend,
—Samanth Subramanian, global news editor