Updated: Aug 15
In a ruling that could give a big boost to the drive to enact Green Amendments across the nation, a judge ruled August 14 that Montana's continued reliance on fossil fuels violates citizens' constitutional right to a "clean and healthful environment."
The decision was issued by District Court Judge Kathy Seeley in a case brought by more than a dozen young plaintiffs as extreme weather becomes more deadly, and in fact, as 2023 has been earth's third hottest year on record through July, according to data from the National Oceanic and Atmospheric Administration (NOAA) and the National Aeronautics and Space Administration (NASA).
Montana is one of three states with explicit environmental guarantees written into their state constitutions, a goal of Green Amendment advocates for all 50 states and the U.S. Congress.
“Plaintiffs have a fundamental constitutional right to a clean and healthful environment, which includes climate as part of the environmental life support system,” Seeley wrote in her order.
“Today, for the first time in US history, a court ruled on the merits of a case that the government violated the constitutional rights of children through laws and actions that promote fossil fuels, ignore climate change, and disproportionately imperil young people,” said Julia Olson, chief legal counsel and executive director of Our Children’s Trust. “This is a huge win for Montana, for youth, for democracy, and for our climate. More rulings like this will certainly come.”
The Green Amendment is the brainchild of Maya K. van Rossum, author of a book titled “The Green Amendment, The People's Fight For a Clean, Safe & Healthy Environment”. Van Rossum, on the Lean to the Left podcast, now streaming, said Pennsylvania and New York, as well as Montana, are the only states in the nation with specific language in state constitutions guaranteeing people a right to a clean and healthful environment.
"This decision instills an obligation on all Montana government to not only prohibit activities that will violate the constitutional right to a safe climate, but also instills an affirmative obligation to protect those rights," said van Rossum. "And the decision makes clear that when oil and gas operations advanced by Montana government will irreparably harm the health and safety of present and future generations, the people have the highest legal authority available in the state to help protect them – their state constitution.
"Quite simply, in Montana, the people now have a powerful legal tool to take on government officials who are failing in their moral, political, and now constitutional duty to protect the environment, the climate and the health and safety of present and future generations.
"The oil and gas industry, and their friends in Montana government, are now on notice that the people of Montana have the higher power of the constitution to help them ensure protection of their climate. It is no longer simply the prerogative of the state legislature to determine whether or not the environment and climate will be protected – it is now an entitlement of the people to ensure government protects their environment."
This is not the first time constitutional environmental rights language has been used to defeat state legislation that advances and increases fossil fuel extraction, but it is the first time it has done so based primarily on the climate changing ramifications of the legislation, Van Rossum observed, adding that it is also the first time that a constitutional right to a clean and healthful environment has been determined to include the right to a safe climate.
Pennsylvania constitutional environmental rights language was relied upon by the Pennsylvania Supreme Court in 2013 to defeat state legislation that would expand fossil fuel extraction in the state, she explained.
"While that case similarly relied upon environmental rights language in the Declaration of Rights section of the constitution, the environmental impacts of concern were not focused on climate. Hence, the case of Robinson Twp, Delaware Riverkeeper Network, et. al. v. Commonwealth of Pennsylvania was similarly used to defeat, as unconstitutional, pro-fossil fuel extraction legislation, it is the focus on the climate ramifications of the Held v. Montana decision that is precedent-setting and unique," she said.
The Landmark Environmental Victory in Montana
In the Montana case, the young plaintiffs charged that but relying on fossil fuels, the state is violating their right to a clean and healthful environment.
"This whole trial was about proving that the plaintiffs are actually being harmed by the climate crisis," says van Rossum on the podcast. "How? Proving that in Montana the climate changing emissions are being released at an increasing rate because of government action. And that the right to a safe climate should be in included as part of the right to a clean and helpful environment."
As that interview was recorded, van Rossum said that "If all those three things fall into place, then the youth plaintiffs should win and Montana, government officials should really have to do right by the plaintiffs and do better when it comes to the climate crisis, including not perpetuating the ongoing use and growth of, fossil fuels in the state."
Van Rossum, who as the Delaware Riverkeeper, is the leader of the Delaware Riverkeeper Network, working through the four states of the Delaware River Watershed.
The Green Amendment Journey
She launched the Green Amendment movement in 2014 because that role, and as part of fight against fracking she, along with seven municipalities, challenged Pennsylvania's pro-fracking law, which put in place automatic waivers from environmental protection standards.
"It preempted the authority of local communities to exert any zoning authority and where fracking could be allowed to happen in their community," she said. "In fact, fracking had to be allowed to happen in every part of every community by virtue of this law."
"We recognized that in the Bill of Rights section of the Pennsylvania Constitution, there was a long ignored right of the people to pure water, clean air, and a healthful environment. And so we decided that we were gonna challenge this law on constitutional grounds. And long story short, we were victorious," she explained.
In December of 2013, "we defeated this pro fracking law before it was allowed to inflict its devastating harms," van Rossum said. "In the wake of that victory, I looked at Pennsylvania's language that had actually been placed in the Constitution in 1971, and I identified all the things that made this constitutional entitlement so powerful that it allowed us to defeat a law.
And I then looked at every state constitution across the nation and found at that time, only Montana had this similar kind of constitutional entitlement."
"And so that's when back 2013, 2014, I started to write the book about the Green Amendment and I embarked on this journey to seek to have this kind of constitutional environmental rights entitlement added to every state constitution across the nation and ultimately, at the federal level," she said. "In addition to my success against that pro-fracking law, there have been a number of really powerful cases demonstrating the power of this kind of constitutional protection. And we've secured a Green Amendment in the state in New York, and we have Green Amendment movements advancing in 15 other states."
The Montana trial, she said, would be the first time where the right to a clean and healthful environment would be tested in court to determine if it could help address the climate crisis." She predicted the youthful plaintiffs would achieve their landmark environmental victory in Montana.
Judge Seeley's decision shows that Van Rossum was correct. The young plaintiffs were victorious. How that translates to other states in the future remains to be seen, but van Rossum has no intentions of letting other states off the hook.
"Almost every state talks about the environment in their constitutions, but they don't do it in a way that makes it right of the people and gives it the greatest constitutional legal strength," she said, adding that only Pennsylvania, Montana, and New York have done that.
"I believe that when a case is brought that is grounded in the kind of Green Amendment that I advocate for, that it can be demonstrated to help address, to be victorious in proving that the right to a stable, to a safe climate is part of the environmental rights of the people," said van Rossum. "Government can be held accountable to address the climate in a meaningful way based on that constitutional entitlement."
When the interview was recorded in July, van Rossum predicted that the Montana decision would be appealed, regardless of which side won. Immediately, attorneys for the state claimed that Montana's contribution to greenhouse gas emissions is small, and that if the law in question were repealed or overturned, there would be "no meaningful impact or appreciable effect" on the climate. They said they would appeal.
However, theJudge Seeley's decision was remarkable and environmental advocates are applauding this landmark environmental victory in Montana.
“People around the world are watching this case,” said Michael Gerrard, the founder of Columbia’s Sabin Center for Climate Change Law.