Held and Anor v State of Montana, 2024 MT 312

Summary

The Montana Supreme Court has found that the Montana Constitution protects the right to a stable climate system and that a provision of the Montana Environmental Policy Act (MEPA) restricting the consideration of greenhouse gas (GHG) emissions and resultant climate change impacts in environmental reviews violated that right. 

Facts

On 13 March 2020, 16 young people sued the State of Montana, the Governor, the Montana Department of Environmental Quality, Montana Department of Natural Resources and Conservation, and the Montana Department of Transportation. The plaintiffs sought declaratory and injunctive relief to the effect that provisions of the MEPA and the Montana State Energy Policy Act 2011 (MSEPA) were contrary to the right to “a clean and healthful environment” provided for in articles II and IX of the Montana Constitution. 

Article II, section 3 of the Montana Constitution outlines “inalienable rights” by providing that: 

All persons are born free and have certain inalienable rights. They include the right to a clean and healthful environment and the rights of pursuing life’s basic necessities, enjoying and defending their lives and liberties, acquiring, possessing and protecting property, and seeking their safety, health and happiness in all lawful ways. In enjoying these rights, all persons recognize corresponding responsibilities. 

 Article IX expands on the healthy environment protection by providing 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. 

Prior to its repeal during the initial proceedings, MSEPA promoted the use of fossil fuels by allowing the extraction, consumption, and transportation of fossil fuels which resulted in a large amount of GHG emissions. Under the MEPA, the State of Montana was required to conduct environmental reviews before permitting these activities. However, after 2011, an exception applied which resulted in State agencies refraining from analysing the impacts of GHG emissions. The MEPA exception stated that:  

[A]n environmental review conducted pursuant to subsection (1) may not include a review of actual or potential impacts beyond Montana’s borders. It may not include actual or potential impacts that are regional, national, or global in nature.  

The plaintiffs led evidence demonstrating that climate change is currently harming Montana’s environmental life support system and that the State and its agencies had previously acknowledged this to be the case. They showed that climate change degrades unpolluted air in the State of Montana’s wilderness, clean water in the mountains, increases risks of wildfires, and effects “climate, rivers, lakes, groundwater, atmospheric waters, forests, glaciers, fish, wildlife, air quality, and ecosystem”. They sought declarations that provisions of the MEPA and MSEPA were unconstitutional and injunctions refraining the State from acting in accordance with the laws and ordering the calculation of the State’s total GHG emissions. 

In 2023, the District Court found that the plaintiffs had standing to bring a claim against the State of Montana given “the fundamental constitutional right to a clean and healthful environment includes climate”. The Court then went on to find that the MEPA exception was unconstitutional and enjoined the State from acting in accordance with the provision. The State appealed the finding before the Montana Supreme Court. The relevant issue on appeal was whether the District Court was correct in its finding that the constitutional provision in article II, section 3 guaranteeing “a clean and healthful environment” encompasses a “stable climate system that sustains human lives”. The State argued that although the constitutional guarantee to a “healthful environment” requires preventing the degradation of the environment, the framers of the Constitution did not require the State to ensure zero damage to the environment, nor did it contemplate eliminating future global environmental issues like GHG emissions.  

Decision

The majority of the Supreme Court found that the MEPA exception was unconstitutional as it arbitrarily excluded all activities from review of cumulative or secondary impacts of GHG emissions without regard to the extent or volume of the emissions. The majority found that framers of the Constitution intended the provisions to encapsulate the “strongest environmental protection” that is “anticipatory and preventative”. “Environmental life support systems” were defined to include air, water and land that “cannot be degraded”. The Court found that the provision went beyond mandating a merely “survivable environment” and that it required enhancement of the present environment. In doing so, the Court found the right to a clean and healthful environment was not solely limited to a requirement to prevent degradation of the environment causing ill health and physical endangerment but that it also encompasses a legislative burden on the State of Montana to implement “anticipatory and preventative” enforcement.  

The majority found the constitutional guarantee was deliberately drafted broadly as the framers could not have specially envisioned every environmental issue to arise in the future. Although two Justices dissented on this finding and argued that climate change was a global issue that cannot have been contemplated by the drafters and that its consequences could not be completely avoided, the majority asserted that the Constitution is a living text and that section 3 of Article II was drafted as a forward looking provision. The majority also commented that the fact climate change extends beyond the State of Montana’s borders does not mean the State can disregard its contribution, as many types of pollution are far reaching.  

Commentary

Held v Montana shows how powerful a right to a healthy environment can be in combatting environmental damage from climate change. The Court’s judgement also greatly contributes to the interpretation and framing of this emerging human right which was also subject of a United Nations General Assembly Resolution in 2022. While there is currently no right to a healthy environment in federal Australian law, the right has recently been added to the ACT’s Human Rights Act which is a monumental step forward and sets the bar domestically for future rights-based environmental protections. 

This case note was prepared by Rebekah Robins (Law Graduate) at Hall and Willcox.