Environmental and Energy Law Update
        A blog from the attorneys of Verrill

        Montana Court Upholds Constitutional Right to Safe Climate

        by Peter M. Vetere on August 24, 2023

        Last week, in Held v. State of Montana, the First Judicial District Court of Lewis and Clark County issued a groundbreaking decision in favor of sixteen youth plaintiffs who challenged a Montana environmental review law that prohibited state agencies from considering greenhouse gas emissions and climate impacts during their review of major energy and infrastructure projects. After a trial in which the plaintiffs presented “credible” and “undisputed” evidence from client scientists, doctors, policy experts, and a delegate to the 1972 constitutional convention, District Court Judge Kathy Seeley found that the law violated the Montana Constitution’s guarantee of the right to “a clean and healthful environment … for present and future generations.”

        The issues in the case were fairly unique to Montana. The provision of the Montana Environmental Policy Act at issue was originally enacted in 2011 to limit the scope of environmental reviews by prohibiting state agencies from considering “actual or potential impacts beyond Montana’s borders … [or] actual or potential impacts that are regional, national, or global in nature.” In 2023, the Montana Legislature amended the provision to expressly prohibit state agencies from considering “an evaluation of greenhouse gas emissions and corresponding impacts to the climate in the state or beyond the state’s borders.”

        If the original goal was not clear enough, the Legislature doubled down (in the middle of the lawsuit) to unambiguously declare its hostility to climate considerations. And they would have gotten away with it, too, if it weren’t for those meddling kids.

        The youth plaintiffs took advantage of several provisions of the Montana Constitution to secure the victory. The first was the “inalienable right” to “clean and healthful environment” set forth in Article II, Section 3. The second was the affirmative obligations of “[t]he state and each person … [to] maintain and improve a clean and healthful environment in Montana for present and future generations” and of “[t]he legislature … [to] provide adequate remedies for the protection of the environmental life support system from degradation and provide adequate remedies to prevent unreasonable depletion and degradation of natural resources” set forth in Article IX, Section 1.

        Citing precedent from the Montana Supreme Court, Judge Seeley found that these constitutional rights were forward-looking and preventative and “clearly indicate[d] that Montanans have a right not only to reactive measures after a constitutionally-proscribed environmental harm has occurred, but to be free of its occurrence in the first place.” Where the climate is part of the “clean and healthful environment” and the “environmental life support system” and where Montana’s climate was being degraded due to atmospheric concentrations of greenhouse gases and climate change, the youth plaintiffs were entitled to seek equitable relief for the state’s failure to meet its affirmative duty to protect the constitutional right to a clean and healthful environment—particularly where Montana’s fossil fuel emissions were found to be globally-significant. See Findings of Fact, at ¶ 219 (“Montana’s fossil fuel-based economy is equivalent to the emissions from Argentina …, the Netherlands …, or Pakistan.”) & ¶ 222 (“Montana is a major emitter of GHG emissions in the world in absolute terms, in per person terms, and historically.”). Judge Seeley, therefore, permanently enjoined the State of Montana from enforcing the prohibition on considering greenhouse gas emissions and climate impacts in its environmental reviews.

        Given the nuances of Montana’s constitutional and statutory law, this decision has little direct precedential value outside the state. Few states, if any, likely have a similar combination of a climate prohibition in their environmental review law and an affirmative environmental protection obligation in their state constitutions. Massachusetts, for example, is certainly not one of them. The Massachusetts Environmental Policy Act expressly requires that state agencies “consider reasonably foreseeable climate change impacts, including additional greenhouse gas emissions, and effects, such as predicted sea level rise.” G.L. c. 30, § 61. And although the Massachusetts Constitution declares that “[t]he people shall have the right to clean air and water … and the natural, scenic, historic, and esthetic qualities of their environment; and [that] the protection of the people in their right to the conservation, development and utilization of the agricultural, mineral, forest, water, air and other natural resources is … a public purpose,” Mass. Const. art. 97, there is no express affirmative duty of the Commonwealth to provide remedies for protecting the environment.

        The import of the decision should not be minimized, however. Remarkably, a court of law made express findings of fact, based on expert testimony, that dangerous climate impacts are occurring due to human activities, primarily from the extraction and burning of fossil fuels. Those climate impacts are causing real physical, emotional, cultural, and financial harm to young people, right now. The barriers to implementing renewable energy systems that reduce these climate impacts are not technical or economic but social and political. These findings will have precedential value in other climate change litigation as a roadmap for proving harm and damages caused by greenhouse gas emissions and climate impacts and the available remedies necessary for transitioning from fossil fuels to clean, renewable energy.

        Indeed, youth plaintiffs in similar climate litigation against the federal government—Juliana v. United States in the United States District Court for the District of Oregon—have cited the Held decision as legal authority supporting their case going to trial. In a brief filed a week after Held, the Juliana plaintiffs argued that Held confirmed that their injuries stemming from the federal government’s fossil fuel policies “are provable at a manageable trial and are redressable by courts” and that “judicial decisions in constitutional climate harm cases must be made based on cross-examined expert testimony and evidence presented at trial.”

        Environmental and Energy Law Update

        The Environmental and Energy Law Update blog provides an analysis and discussion of the most critical and timely legal issues and announcements in the environmental, natural resource, and energy sectors.

        Key Contact

        Subscribe

        Looking for more great content? Subscribe for regular legal updates and information delivered right to your inbox.

        Firm Highlights

        Published Works

        Four Verrill Attorneys Co-Author Massachusetts Trends and Developments Chapter for Chambers and Partners Child Relocation 2026 Guide

        Verrill attorneys Mary H. Schmidt, Rachel A. Deering, Hannah R. Zukoff, and Mariah G. Tappan co-authored the “Trends and Developments” chapter...
        Blog

        A New Protected Class in Maine: Holders of Final Protection Orders

        In the lead-up to Domestic Violence Awareness Month in October, employers may be taking a closer look at how their policies and practices respond to...
        Alerts and Newsletters

        Verrill Secures SJC Victory for Boston Legacy FC in White Stadium Litigation

        Verrill has secured a significant appellate victory for Boston Legacy FC in the litigation challenging the redevelopment of White Stadium in...
        Blog

        Hurry Up and Wait

        This is the third in a series of Verrill blog posts on Maine’s packaging extended producer responsibility (“EPR”) law[1]. In July we reported...
        Media Mentions

        Robert Keach Discusses First Brands Chapter 11 Case in Law360

        Verrill attorney Robert Keach was recently quoted in a Law360 article examining the rejection of First Brands Group's Chapter 11 plan and the...
        Media Mentions

        Cybersecurity and AI Governance: Scott Anderson Featured in Massachusetts Lawyers Weekly

        Verrill Managing Partner Scott Anderson was recently featured in Massachusetts Lawyers Weekly discussing how law firms can build attorney buy-in for...
        Blog

        Section 530A Account Update: ERISA Status of Trump Accounts

        The Department of Labor has issued important guidance addressing whether employer programs that permit contributions to Section 530A accounts (and...
        Press Releases

        97 Verrill Attorneys Recognized by Best Lawyers® 2027, Including Four Named Lawyers of the Year

        AUGUSTA, Maine, BANGOR, Maine, BOSTON, Mass., PORTLAND, Maine, and WESTPORT, Conn., (August 20, 2026) – Verrill is proud to announce that 97...
        Alerts and Newsletters

        SEC’s Proposed “Reg Crypto”: What Founders Need to Know

        Startup founders and emerging-growth companies have a number of options for raising capital under the federal securities laws, including Regulation D...
        Blog

        After 45 Years, the IRS Speaks on DCAP Nondiscrimination Testing – And It’s Good News

        Employers that provide a Dependent Care Assistance Program will be pleased to learn that for the first time in 45 years, the IRS has issued guidance...
        Media Mentions

        U.S. Courts Highlights Annabel Rodriguez’s Journey from Fellow to Mentor

        Verrill attorney Annabel Rodriguez was featured in a recent U.S. Courts article titled “From Fellows to Mentors: Alumni Share Lasting Lessons from...
        Media Mentions

        Robert Keach Discusses Bankruptcy Auction Strategy in Law360

        Verrill attorney Robert Keach spoke with Law360 article examining the complex bankruptcy auction process that resulted in the sale of 23 summer...