Montana Protects a Constitutional Right to a Stable Climate: Will Any Other States Follow Suit? | Foley Hoag LLP – Energy & Climate Counsel

• The Montana Constitution’s guarantee of a “clean and healthful environment” includes a stable climate system that sustains human lives and liberties.
• Plaintiffs had standing to challenge the constitutionality of a Montana statute that purported to restrict environmental reviews of projects under the Montana Environmental Policy Act from considering certain impacts of proposed projects on global climate change (the “MEPA Limitation”).
• On the merits, the MEPA limitation violated the right to a clean and healthful environment enshrined in the Montana Constitution.

It’s definitely an important case because it’s the first case I’m aware of in which climate plaintiffs have prevailed in state law litigation of this type. On the other hand, “this type” of litigation is fairly limited and this case very much relied on what the court repeatedly noted was the strongest environmental protection language of any state constitution in the country. Moreover, there was significant jurisprudence supporting a broad interpretation of the Montana constitutional provisions.

The one aspect of the case that may have a significant carryover to similar litigation in other states is the standing discussion. Every one of these cases is going to face opposition based on the argument that the case can’t yield a remedy because, whatever the specific claims may be, nothing that happens in one single state can yield any meaningful benefit in terms of climate change mitigation. Plaintiffs will undoubtedly point to the Montana case for the proposition that such futility arguments should not be sufficient to defeat standing.

Time will certainly tell on these issues, because there are likely to be more of these cases, particularly in light of an expected retrenchment in federal efforts to mitigate climate change impacts.