"The little red barn on Flathead Lake, Montana, USA" by Peggy2012CREATIVELENZ is licensed under CC BY 2.0.

Youth Vs. State Of Montana: Support For Fossil Fuel Companies Is Unconstitutional

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Sixteen young Montanans have sued their state, arguing that its support of fossil fuels violates their due as citizens. In their complaint, which will be heard by the court this spring, the young activists seized on language in the state of Montana Constitution that guarantees residents “the right to a clean and healthful environment.”

Around the world, more and more youth activists have decided this is the time to advance robust arguments for the existence of ecosystem rights and the rights of future generations regarding environmental issues. This is a growing global movement of young people fighting for their futures and arguing that more needs to be done by the adults running institutions and systems to lessen climate emissions.

Climate activists are fighting for the day when carbon neutrality is achieved by balancing anthropogenic CO2 (and more generally GHG) emissions with negative emissions. Over the coming decades, experts estimate that 25% of all plant and animal species may go extinct. Climate change directly contributes to species extinction through ecosystem shift, and accelerates other drivers of extinction such as destruction of habitat and pollution. Once anthropogenic emissions become net zero, carbon sinks such as land and ocean will not have to compensate for the anthropogenic flux of emissions. The stock of CO2 in the atmosphere, which is the result of past emissions, will gradually reduce.

Most famously, Greta Thunberg, the 20-year-old Swede, embodies youth climate determination today. Her communication strategy has become a model for youth activism — she frames climate change as a moral and ethical issue, uses an emotional appeal of hope, and visually frames motivational collective action to mobilize her audience.

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Asserting such rights in appropriate state, national, and international courts, though, is a challenge. Rights to youths’ own future and to that of future generations differ when adding climate mitigation to the equation. Should courts be called upon to account for the rights of future individuals, who are the main victims of climate change? Should courts reconceptualize the rights of nonhuman living beings in relation to an existential threat such as climate change?

The issue of transgenerational justice remains rather marginal. If a state’s reserves become stranded, it is more likely to be a result of environmental organizations and groups that sue governments by reinterpreting existing laws or non-regulatory stranding, rather than the introduction of new regulations. If courts do not assure the mitigation actions that need to be taken to halt the progressive deterioration of the climate and the environment, then who will?

A Constitutional Right to a Clean & Healthful Environment

Montana has retained its place as a major fossil fuel producer, even in light of its 1972 constitutional amendment to include language guaranteeing citizens “the right to a clean and healthful environment.” The language revision was intended to reduce the influence of the copper and coal industries, major power brokers in state of Montana politics since the 1880s.

In fact, the original 1889 Constitution and subsequent laws were highly deferential to industrial interests. “Some historians called it a corporate colony: all the profits were going out of the state, and residents weren’t seeing the benefits,” Michelle Bryan, a law professor at the University of Montana, told the New York Times. “The 1972 Constitution was kind of Montana’s declaration of independence from corporate mining.”

Those Constitutional reframers understood their role in protecting the environment, adds Jim Nelson, a retired judge who sat on the Montana Supreme Court for 19 years. “They made a point that we should maintain that for future generations as well. That’s a very important mandate.”

In their climate complaint, filed in 2020, the young activists seized on language in the state of Montana Constitution that stipulates that the state and individuals are responsible for maintaining and improving the environment “for present and future generations.” Their argument is grounded in the premise that courts have abdicated their constitutional responsibility to protect a disenfranchised group — non-voting minors and future generations — and to remedy what one scholar has called the pervasive “pathology in social discourse and the political process: the industry-funded climate disinformation campaigns.”

Today the state of Montana is the fifth largest coal producing state and the 12th largest oil producing state in the country. A 2011 change to the state’s energy policy barred the state from considering climate change when deciding whether to issue new permits for fossil fuel projects. It’s one more in a list of state legislators’ hypocrisies, as nearly 10,000 Montana residents work in the clean energy sector already. States like Montana have a significant new opportunity to boost their local economy through the Inflation Reduction Act (IRA) and are lining up to do so.

state of Montana
“Glacier National Park, Montana GREEN” by moonjazz is licensed under CC BY 2.0.

“Declaratory Relief” is at Stake in the Montana Climate Case

Young people are legitimate political actors responding to the climate crisis. Adaptation failure — lack of action to protect those already at risk — is often perceived as a breach of their economic, social, and cultural rights.

The effects of climate change enraged this group of Montana’s youth, so 3 years ago they decided to take legal action. The 16 kids joined with an environmental legal organization and sued the state. The plaintiffs in Held v. Montana are seeking “declaratory relief.” That is, they want the judge to acknowledge that fossil fuels are causing pollution and warming the planet and to declare the state’s support for the industry unconstitutional.

The plaintiffs:

  • The oldest plaintiff, Rikki Held, was 18 at the time of the filing. Her family’s 7,000 acre ranch in Broadus became difficult to work profitably, with unpredictable weather forcing water issues.
  • Sariel Sandoval was 17 when the case was filed. She can remember when huckleberries on the Flathead Indian Reservation in northern Montana where she was raised were plentiful and the snowpack replenished water levels in Flathead Lake, allowing for important tribal fishing. Neither is the case any longer.
  • Badge and Lander Busse hunted with their 3 dogs just outside Glacier National Park and witnessed first-hand their rapidly warming world — relentless rains that damaged their hiking trails, wildfires that gnarled the landscape, air so acrid they had trouble breathing outside.
  • The youngest plaintiff, Nathaniel K., was 2-years-old when the filing took place. Wildfires magnified by climate change affected the child’s breathing, with symptoms presenting as severe respiratory issues that threatened his life.

A victory for the Montana youth would help create a foundation for other climate cases. Pennsylvania and New York have similar constitutional guarantees to a healthy environment, and environmental groups are trying to add them to many other state constitutions.

Final Thoughts about Climate Rights in the State of Montana

“There have been almost no trials on climate change,” Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia Law School, reveals. “This is the first that will get into the merits of climate change and what needs to be done, and how the state may have to change its policies.”

The trial, which legal experts say is the first involving a constitutional climate case, begins on June 12 in the state capital of Helena.

Climate change causes conflict and even warfare. In recent years, youth climate activists have mobilized worldwide protests to demand action. Held vs. Montana is a succinct legal climate challenge, but it remains to be seen if the state of Montana will embrace it.


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Carolyn Fortuna

Carolyn Fortuna, PhD, is a writer, researcher, and educator with a lifelong dedication to ecojustice. Carolyn has won awards from the Anti-Defamation League, The International Literacy Association, and The Leavey Foundation. Carolyn is a small-time investor in Tesla and an owner of a 2022 Tesla Model Y as well as a 2017 Chevy Bolt. Please follow Carolyn on Substack: https://carolynfortuna.substack.com/.

Carolyn Fortuna has 1279 posts and counting. See all posts by Carolyn Fortuna