MONTANA YOUNGSTERS STRIKE BLOW FOR CLIMATE CHANGE

State Constitutions as vehicles for protecting fundamental rights

It seemed like a long shot at the time. On March 13, 2020, sixteen Montana teenagers and children filed suit alleging that their state was complicit in the release of greenhouse gases contributing to climate change in violation of the state’s constitution. Not only was the legal claim novel, but the case , Held v. Montana, was brought in one of the most conservative coal producing states in the country. Despite the forces aligned against them, including eighteen Republican-controlled states opposing the suit, the advocates, represented by local and national attorneys, including Our Children’s Trust, a Oregon-based law firm actively engaged in similar actions in other states, were able to convince a judge that a trial of the matter was justified. After eight days of evidence and argument, the Montana trial court ruled for the plaintiffs, finding that state policy violated the state’s Declaration of Rights and other provisions in the Montana Constitution. The State policy challenged by the suit was declared illegal and void.

While the verdict was surprising, the response was not; both the legislature and the Governor were outraged, and the state appealed the decision to its Supreme Court. Conservative legal heavy hitters weighed in with a vengeance. Despite having no direct stake in the matter, my own state—Virginia—joined an amicus brief opposing the Plaintiffs.

In late December, the Montana Supreme Court issued its decision—and it wasn’t even close. By a 6-1 majority, the judges sided with the young plaintiffs, and found that Article IX of the Montana Constitution guarantees all persons certain inalienable rights, “includ[ing] the right to a clean and healthful environment” that “includes a stable climate system.” The holding is historic because it is the first time a constitutional right has been successfully used to attack policies exacerbating climate change.

STRICT SCRUTINY BREATHES LIFE INTO CONSTITUTIONS

Most Americans have never heard of the term “strict scrutiny,” but this legal concept was key to the court’s decision, and one that could become increasingly significant as states grapple with more state constitutional challenges to legislative actions affecting fundamental rights. State statutes are generally accorded the presumption that they are constitutional. But once a court finds that a law or regulation involves a fundamental right expressed in a Constitution, it no longer enjoys the presumption and instead becomes subject to more rigorous review known as “strict scrutiny,” where the government must show that the contested provision is "narrowly tailored" to achieve a "compelling state interest." In the Montana case, the court found a fundamental right in the state Constitution, and that the government was unable to show that the challenged state law could withstand a “strict scrutiny” analysis.

Montana’s supreme court judges are elected and their rulings have not always pleased either the legislature or the state’s Republican Governor. In recent supermajority or unanimous decisions, for example, they have used a strict scrutiny analysis to overturn several state laws restricting abortion, finding that these violated the right to privacy in the state’s constitution. This has prompted Montana legislators to introduce a flurry of bills designed to constrain the “egregious overreach” of the judicial branch.

Montana is not the only state with Constitutional provisions supportive of the environment. Pennsylvania’s Constitution includes the explicit “right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment.” Rhode Island’s contains a clause enshrining the “rights to the use and enjoyment of the natural resources of the state with due regard for the preservation of their values.” New York adopted new language in 2021 to give its residents the “right to clean air and water, and a healthful environment.”

Suits similar to Held brought in other states and federal courts have not typically fared as well as in Montana, but more are coming. One pending is in Virginia, and argues that state policy violates Article XI of the state constitution and the “public trust doctrine,” a legal concept that imposes obligations on government, as trustee, to protect natural resources such as clean air and water for present and future generations. The case was dismissed by the Court of Appeals and is now before the Virginia Supreme Court, which must first decide if the claim has a legal basis to go to trial.

LITIGATING OTHER STATE CONSTITUTIONAL CLAIMS

In some instances, state constitutions are more protective of individual rights than is our federal compact. And as civil rights lawyers have soured at the prospect of using the federal courts and the U.S. Supreme Court to protect and enhance rights, they have turned to their state courts for remedies. That is one reason why many recent voting rights cases have been brought in state courts; the U.S. Constitution provides no explicit right to vote, but almost every state constitution has such a clause. The cases have not always been winners; recent refusals by the Kansas and Idaho supreme courts to find that their constitutions included a fundamental right is a disappointment to those who hoped for better.

In other states, however, particularly in Michigan and Wisconsin, recent elections of liberal-oriented judges to their state’s higher courts have generated rulings to overturn hyper partisan redistricting and protect abortion access. The Wisconsin Supreme Court just ruled against its conservative legislature and their efforts to block certain state agency expenditures from using monies to acquire land for conservation, finding the statute to be an unconstitutional violation of the state’s separation of powers doctrine.

Similarly, advocates in Nevada and Pennsylvania are using their constitutions’ unique Equal Rights Amendments to argue that denying abortion access to medicaid recipients is “presumptively unconstitutional” on the basis of sex discrimination. With Trump in the White House and the U.S. Supreme Court under conservative control, expect more action in state courts to defend and expand fundamental rights.

Litigating these claims is difficult, can take years, and cannot substitute for changes that occur at the ballot box. But as the young plaintiffs in Montana have shown, courts can provide remedies, and focusing on states can sometimes bring unexpectedly positive results.