Western courts grappling with climate change

Kylie Mohr

High Country News

In Montana, wildfires are destroying ranches, drought is killing fish, and heat is harming traditional tribal food sources like blueberries. To the south, Utahans are inhaling a toxic concoction of exhaust and chimney emissions, compounded by wildfire smoke. And young Westerners say these states are infringing on their rights by spurring fossil fuel development and causing the climate change that is accelerating these problems.

The West is a hot spot for lawsuits arguing that climate change-inducing policies contradict state constitutions: Three of the five ongoing climate cases brought by young plaintiffs were from the western United States . In March, several young Utahns filed a lawsuit in the 3rd Judicial Court, claiming that dangerous air quality and climate change are harming their health and safety, interfering with their development and shortening their life expectancies.

A similar case in Montana grabbed headlines earlier this year, when a court date was set for February 2023. It’s a new wave of cases closely tied to the youth climate that could, unlike previous cases, lead to legal victories.

Held v. Montana marks the first time in US history that a youth-led climate change lawsuit will go to trial, and Natalie R. v. State of Utah could do the same. Both cases face a legal system that has for years blocked and dismissed similar cases, including their best-known predecessor, the federal Juliana v. United States, as well as state litigation from Alaska to California.

“I think everyone needs to keep trying different approaches to see what will ultimately be the thing that the courts can latch onto,” said Jennifer Rushlow, associate dean of environmental programs at Vermont Law School.

In the Juliana case, the young plaintiffs – the vast majority of them Westerners – wanted the court to order the federal government to adopt a plan to reduce greenhouse gas emissions. But the 9th Circuit Court of Appeals dismissed the case in 2020, writing that the claim was outside its jurisdiction and that climate policies should come from the legislative and executive branches, not the judiciary.

So plaintiffs’ attorneys in Utah and Montana are now taking a narrower approach, seeking what’s called a “declaratory remedy,” or court rulings declaring that state policies violate the rights of those who carry the business. (Juliana’s plaintiffs are now taking the same approach in an amended lawsuit pending in U.S. District Court in Oregon.)

A victory would mean that the state governments of Montana and Utah could not legally pursue specific policies that maximize, promote and enable fossil fuel development. The Montana case also argues that states must take action on climate change because of the doctrine of public trust, a legal concept that natural resources are to be held in trust by governments and managed for the benefit of citizens. current and future.

Lawyers in both trials also adapt their arguments to different legal landscapes. The attorneys representing the plaintiffs in Held v. Montana argue that two pro-fossil fuel Montana policies violate the right to “a clean and healthy environment.” Montana is one of six states — and the only one in the West — with constitutionally based environmental rights protections.

“Montana courts have interpreted the right to a clean and healthy environment as truly important and meaningful, and have shown a willingness to invalidate agency statutes and conduct when they violate that right,” Nate said. Bellinger, senior counsel at Our Children’s Trust. , an Oregon nonprofit law firm that only represents youth plaintiffs in climate cases.

Experts agree that explicit constitutional language could help young people win. “It’s certainly possible that the existence of a constitutional right gives a judge greater comfort in making a bold decision,” said Michael Burger, executive director of Columbia Law School’s Sabin Center for Climate Change Law.

The Utah Constitution lacks explicit language on the right to a clean environment. Thus, the young plaintiffs in Natalie R. c. State of Utah argue that five fossil fuel-enhancing Utah policies are creating conditions that violate their right to life, health, and security under the state constitution — and they’re leading the fight because that younger generations will bear the brunt of climate impacts. While the Montana case covers a litany of climate concerns, the Utah case focuses on air pollution.

“We know that Utah’s dangerous air quality takes years from the lives of its citizens, especially children,” said Andrew Welle, a senior lawyer handling the case with Our Children’s Trust. “So we drew a direct line to say, ‘This is a pretty clear violation of the right to life.'”

Federal litigation and nationwide climate action may stall, but state cases like these could bring piecemeal progress. And it adds up. “Even though climate change is a global issue and we need global coordination and federal leadership, at the end of the day a lot of action is taken at the state level,” Burger said. “There are important and critical gains to be made by advocating for and delivering more ambitious state climate action.”

This story is part of Covering Climate Now, a global journalistic collaboration bolstering coverage of the climate story.

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Teresa H. Sadler