Trust the Children, Not the System

The 16 child plaintiffs in Held v. State of Montana, the Children's Trust lawsuit over the meaning of Montana's state constitutional right to a healthy environment, won an important decision on August 14. But as these things unfortunately go, its significance as more than just a hard-fought, symbolic feel-good ruling remains an open question.

A state court judge in Montana found the "Plaintiffs have a fundamental constitutional right to a clean and healthful environment, which includes climate as part of the environmental life-support system" and that "Montana's GreenHouse Gas (GHG) emissions and climate change have been proven to be a substantial factor in causing climate impacts to Montana's environment and harm and injury to the Youth Plaintiffs." This doesn't sound so earth-shattering unless you realize that our system only grudgingly acknowledges that we all have a right to a clean and healthful environment. The judge also ruled that a recent Montana law "prohibiting analysis of GHG emissions and corresponding impacts to the climate, as well as how additional GHG emissions will contribute to climate change... violates Youth Plaintiffs' right to a clean and healthful environment and is unconstitutional on its face." Translation: The system had to be told by a court that climate chaos is real and that you can't change reality just by passing a law to deny it.

The decision also makes it clear that regular people have legal standing to unlock the power in their state constitution to protect the environment, and that they might also do it in ways that are stronger than federal environmental regulations. At least six other states besides Montana—Hawaii, Illinois, Massachusetts, Montana, New York, and Pennsylvania—have similar environmental rights etched into their state constitutions. The Community Environmental Legal Defense Fund (CELDF) has pursued a trial for more than eight years over the constitutionality of a fracking injection well ban passed by the people of Grant Township, Indiana County, Pennsylvania, under the state Environmental Rights Amendment. Based on our experiences, it will take an extended commitment to community organizing to expand the Held ruling into tangible relief as a vital state constitutional protection for nature.

The Held decision struck down reactionary lawmaking and will result in better information for critical decisions affecting the environment, but leaves it to the people, the legislature, and the governor to figure out how to reduce the carbon emissions driving our planetary emergency.

Held interpreted Montana's Environmental Policy Act (MEPA), which is similar to the federal National Environmental Policy Act (NEPA) to require an environmental impact statement before permitting a mining and petroleum extraction project. But simply compiling a more detailed statement doesn't mean the agency or public can block a project, nor does it even imply that serious conditions can be imposed on the permitted activity. The industry-owned Montana legislature had made it illegal to consider what more fracking permits and rare metal mining would add to the carbon burning that's driving climate chaos. As a result, there are nearly zero ways to reduce 166,000,000 tons of annual greenhouse gasses emitted in Montana.

The Held trial lasted a week, and the plaintiffs provided expert testimony connecting the present climate chaos to human industrialization and its effects on human, particularly child, health. At the trial's conclusion, the court struck down the state law prohibiting consideration of how a new mining or drilling project contributes to climate chaos, when assessing environmental harms.

While it is now unconstitutional in Montana for permitting agencies to ignore climatological effects, that doesn't mean that drilling and mining permits will suddenly become easy to deny. For one thing, Held v. State of Montana is being appealed by the state government to the Montana Supreme Court, which has proven to be friendly to extractive industries over the decades. The trial court's interpretation of the state's responsibility to its youth could be reversed or diluted.

Even if the child plaintiffs win the appeal, it's a fact that the courts simply don't have much power to tell Montana what to do. The judge ruled earlier in the case that while she has the power to issue a formal declaration of the plaintiffs' rights, she does not have the authority to order specific relief. (Part 3 of the ruling states: "The Court found that Plaintiffs' requests for the Court to order Defendants to develop a remedial plan, to retain jurisdiction over the matter until Defendants complied with the remedial plan, and, if necessary, appoint a special master to assist the Court in reviewing the remedial plan, exceeded the Court's authority under the political question doctrine.") The ruling finds the State of Montana must consider climate chaos effects in permitting decisions, but the court cannot order the explicit road to get there.

The Held decision struck down reactionary lawmaking and will result in better information for critical decisions affecting the environment, but leaves it to the people, the legislature, and the governor to figure out how to reduce the carbon emissions driving our planetary emergency. Since we know the legislature and governor are highly likely to oppose and undercut the needed changes, the people must be the change agents.

So, from now on, environmental assessments in agency permit decisions in Montana need to include a lot more detail about climate-damaging effects, but the goal is limited to "better" decisions by the agencies, not the power to veto. Better information about the negative effects of any new projects will presumably cause more serious consideration of the negative as well as positive effects, not only of oil and gas production and of environmental damage from mining, but also of the greenhouse gas effects of industrial wind and solar power generation. All industrial scale energy projects have negative impacts that require weighing benefits against risks. By approving the legal standing of the plaintiffs as individual citizens to invoke the Montana Constitution, the court expanded the public's ability to leverage the constitutional right to a clean and healthful environment.

The Held decision will hopefully be seen in time as a springboard for expanding democratically-decided directions as the climate crisis burgeons. It is an invitation for expanding long-term environmental organizing. A clear victory for Grant Township at the Pennsylvania Supreme Court on PA's Environmental Rights Amendment will empower local communities in a gritty, tangible way that Held doesn't. It will take years to get to that level of definition of the Montana constitutional provision and will require continued citizen organizing, litigation, and legislation over many years for there to be measurable positive reductions of Montana's greenhouse gas contributions. And, of course, Montana is only one of 50 states.

While the decision does seem to open up the possibility that citizens could challenge the adequacy of conditions imposed on environmental permits that allow land, water, and air destruction from oil and gas extraction and mining, the system itself poses other pitfalls to be reckoned with. For example, MEPA allows economic burdens on the mining or mineral extraction firms to be taken into consideration in permitting. A company's economic stake in having a project go forward must be taken into account, something that could make it nearly impossible to deny any permit.

By continuing to treat minerals as necessary economic assets combined with the Takings Clause in the 5th Amendment to the federal Constitution, (remember corporations have a large collection of constitutional rights including 5th Amendment rights), a permit that is denied based on Held may allow the extraction companies to claim public takings, and the taxpayers may be liable to compensate them. This is not a criticism of the victory, but is instead a reminder of the sobering dominance of property ownership in our culture and legal system.