Sam Weber, JD Anticipated May 2024, Law & Public Policy Scholar
Think young climate activist and Greta Thunberg’s stern face likely comes to mind. The earnest young Swede has certainly received the most international press coverage for her climate change advocacy.
In the past few years, though, a growing number of kids in the United States have been joining the ranks of young advocates for a more sustainable future, and they’re increasingly turning to the courts for solutions. While climate litigation based on environmental rights has largely failed so far, a group of 16 children and young adults recently notched a big win and, perhaps, marked a turning of the tides. This past August, a Montana state court ruled in favor of the plaintiffs in Held v. Montana, holding that the state violated their constitutional rights when it failed to consider climate change in connection with approvals of fossil fuel projects.
Moving forward, climate litigants should learn from the Held plaintiffs’ example and keep their winning formula in mind while crafting complaints – state courts and state constitutions, sympathetic plaintiffs, and narrow requests for relief. Potential litigants right here in Pennsylvania may be best positioned to be the next big winners.
What not to do—lessons from Juliana v. United States and Funk v. Wolf
The number of climate change lawsuits has doubled in just the past five years. While the majority are filed in the United States, they don’t often fare well in this country. Climate litigation is generally more successful in countries that have made stronger human rights commitments or have enshrined environmental rights in their national constitutions. In the United States, climate suits based on environmental rights, like Held v. Montana, have usually been dashed in early stages of litigation.
Juliana v. United States, a 2016 climate lawsuit that made headlines across the country in the wake of a favorable decision from a lower court, is an example of a case that ultimately failed. There, the plaintiffs were a group of children and young adults, like in Held. However, they filed a federal lawsuit, rather than a state lawsuit, basing their claims in the U.S. Constitution. They argued that the federal government violated their constitutional rights to life and liberty by perpetuating a fossil fuel-driven national energy system, despite knowing about the catastrophic risks that climate change poses.
The plaintiffs asked for a wide range of remedies, notably including a command from the court to the federal government to develop a more sustainable national energy system. In response, the federal government filed a motion to dismiss the case, lodging several arguments against the plaintiffs’ claims. Among them, the government argued that the plaintiffs lack standing and that the plaintiffs should be barred from challenging the government’s inaction because it has no affirmative duty to protect citizens from climate change.
A district court in Oregon denied the government’s motion to dismiss, writing that “the right to a climate system capable of sustaining human life is fundamental to a free and ordered society.” Climate activists lauded the initial result, but their celebration was short-lived. On appeal to the U.S. Court of Appeals to the Ninth Circuit, a panel of two judges dismissed the suit for lack of standing. The majority opinion did note that climate change is happening and that the federal government has helped exacerbate it.
The plaintiffs have made a compelling case that action is needed; it will be increasingly difficult in light of that record for the political branches to deny that climate change is occurring, that the government has had a role in causing it, and that our elected officials have a moral responsibility to seek solutions.
Juliana v. U.S., 947 F.3d 1159, 1174 (9th Cir. 2020).
(The fact that this felt groundbreaking perhaps said more about how far behind we are in adequately addressing the climate crisis than about the opinion itself.)
Though it’s nice to see one of our nation’s highest courts acknowledge the reality of climate change, the Ninth Circuit’s conclusion was ultimately disappointing. It held that the plaintiffs lacked standing for their claim, largely because of the issue of redressability, meaning the court did not think it was capable of offering the remedy sought. In short, the justices did not believe they had the power to command the systemic change in energy policy that the plaintiffs asked for.
We reluctantly conclude . . . that the plaintiffs’ case must be made to the political branches or to the electorate at large, the latter of which can change the composition of the political branches through the ballot box. That the other branches may have abdicated their responsibility to remediate the problem does not confer on Article III courts, no matter how well-intentioned, the ability to step into their shoes.
Juliana v. U.S., 947 F.3d 1159, 1175 (9th Cir. 2020).
It is easy to imagine this case ending similarly if it wound up at the Supreme Court of the United States.
Courts are reluctant to make any sweeping societal changes that could be perceived as overstepping their judicial role. Instead, they often seem content to tell litigants to simply vote for whomever will make the changes they want to see. As director of Columbia Law School’s Sabin Center for Climate Change Law Michael Gerrard noted in Time after the Juliana dismissal, “[Courts] are not going to come up with brand new rules. That’s left to the ballot box. It would have been a very bold act for the court to have allowed a district judge to dictate the development of national energy and climate policy.”
A very similar case played out in Pennsylvania state court shortly before Juliana hit the federal court system. In Funk v. Wolf, plaintiffs argued that the Commonwealth was failing to adequately address climate change and ensure Pennsylvania remains inhabitable for future generations. Like Juliana, Funk was also dismissed due to redressability. Legal scholar John C. Dernbach, who has written extensively about climate change issues in Pennsylvania, expressed nearly the same sentiment as Gerrard. “What courts are looking for is remedies that are judicially manageable,” he said. “The injunction that the plaintiffs were looking for was an injunction supervised by the Commonwealth Court that would require the state to adopt and implement laws to significantly reduce its greenhouse gas emissions. That really asks the court to do a great deal.”
What Held v. Montana got right
Why then, did a case asking the state to take more action on climate change turn out so differently in Montana this summer? The same non-profit, Our Children’s Trust, actually brought all three of these cases. In Held v. Montana, the group finally struck gold. According to the New York Times, Held v. Montana was the first lawsuit of its kind to go to trial in the United States, and the plaintiffs took that opportunity to present an extremely strong case stacked with expert witnesses. Like the court in Juliana, the Held court expressed strong belief in climate science and the expert testimony that laid out the harms that climate change will continue to cause in Montana.
A few crucial differences set Held up for success, though. The first is the type of claim the plaintiffs made. Rather than cast a wide net like the plaintiffs in Juliana and Funk, the Held kids focused on a discrete statutory provision in Montana state law to attack, known as the MEPA Limitation. The Montana Environmental Policy Act (MEPA) requires state agencies in Montana to evaluate the environmental impacts of proposed state actions. However, the MEPA Limitation cuts the statute off at the knees in a major way.
The operative provision for Held’s purposes states that “an environmental review . . . 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.” Put simply, the MEPA Limitation prohibits the state from considering climate change when reviewing proposed projects, which in turn, hinders its ability to move away from fossil fuels. “The MEPA Limitation prevents full review of the technologically and economically available alternatives to fossil fuel energy in Montana,” the court wrote.
Instead of asking the court to make a sweeping judgment that’s arguably beyond the scope of its judicial powers, the Held plaintiffs found a specific target to attack and asked for a remedy the court was able to give without question. The effect, of course, is also nowhere near as sweeping as what Juliana and Funk were hoping for, but it’s making waves in the climate advocacy community nonetheless. “The case, while subject to appeal, has already been declared a groundbreaking development in climate law, one that could spark similar decisions in states across the country,” says an article about the decision in Philly Voice.
The fact that a Philadelphia news outlet found reason to write about a state court decision on the other side of the country has to do with the other important piece of Held’s success. Montana and Pennsylvania are some of the only states in the nation that include express environmental rights in their constitutions. In Juliana, plaintiffs asked the court to recognize an unenumerated right to a healthy environment in the U.S. Constitution. Here, though, the Held plaintiffs were on much firmer footing because they actually had been granted a clear environmental right by their state legislature.
Montana’s constitution provides: “All persons are born free and have certain unalienable rights. They include the right to a clean and healthful environment . . . The state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations.”
With that strong grant of rights in mind, the court held that the MEPA Limitation infringed upon the plaintiffs’ fundamental rights, applied strict scrutiny, and concluded that it flunked the constitutional test. The court wrote extensively about how the plaintiffs’ young ages made them especially vulnerable to climate change. Thus, it made easy work of recognizing that the state’s failure to adequately address the crisis violated their constitutional rights. “Because of their unique vulnerabilities, their stages of development as youth, and their average longevity on the planet in the future, Plaintiffs face lifelong hardships resulting from climate change.”
So what does this mean for Pennsylvania?
Future climate litigants in Pennsylvania should be encouraged by the Held result. As mentioned, Pennsylvania and Montana are two of the only states in the nation that include environmental rights in their constitutions. Pennsylvania’s environmental rights amendment (ERA) is even stronger than Montana’s provision. It reads:
The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.
Pa. Const. art. I, § 27.
In addition to delineating specific environmental rights, the ERA establishes a public trust in which the Commonwealth’s natural resources are to be held equally safe for present and future generations. Shortly after its 1971 adoption, state courts all but stripped it of its power and it lay dormant for nearly 40 years. However, a 2013 case brought it back to life, and both the Commonwealth Court of Pennsylvania and the Supreme Court of Pennsylvania have written about the ERA’s power with surprisingly reverent language in another recent string of cases concerning proceeds from fracking on state land.
Taken together, Funk, Juliana and Held give us the blueprints for successful climate rights litigation. Sympathetic plaintiffs that are particularly endangered by climate change, strong constitutional rights to a healthy environment, and narrow claims brought in state courts. Individually, cases like Held will not alter the course of the United States’ climate trajectory. But if more state legislatures can be persuaded to adopt constitutional environmental rights, and young advocates continue to be savvy about the relief they request, it’s possible that more outcomes like Held can be won. Cumulatively, they could make a significant impact, and hopefully, Pennsylvania will be home to the next big climate win.