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montana climate case
'Truly Historic' Youth-Led Climate Case Arrives at European Human Rights Court
Six Portuguese young people are suing the governments of 33 countries, arguing their human rights have been violated by a widespread failure to mitigate the climate crisis.
Sep 27, 2023
Lawyers for six Portuguese children and young adults on Wednesday expressed hope that their unprecedented climate case, brought to the European Court of Human Rights three years after it was first filed, will ultimately be a "game-changer" that forces governments in Europe and across the globe to take decisive action to address the climate emergency.
Ranging in age from 11 to 24, the six plaintiffs sat on Wednesday before nearly two dozen human rights judges and attorneys representing nearly three dozen nations, determined to prove to the court that countries across Europe have violated their fundamental rights by allowing greenhouse gas emissions to continue heating the planet despite warnings from energy experts and scientists.
In Duarte Agostinho v. Portugal and 32 Others, the plaintiffs are seeking not financial relief but a ruling from the court that would compel the governments of the 27 E.U. member-nations as well as Russia, the United Kingdom, Switzerland, Norway, and Turkey to speed up their efforts to keep planetary heating below 1.5°C above preindustrial levels.
Because the human rights court's rulings are legally binding for E.U. members, a decision in favor of the young plaintiffs "would act like a binding treaty imposed by the court on the respondents, requiring them to rapidly accelerate their climate mitigation efforts," Gerry Liston of the U.K.-based Global Legal Action Network (GLAN), told the Associated Press.
"In legal terms, it would be a game-changer," Liston told the outlet.
Four of the plaintiffs live in central Portugal, where wildfires killed at least 66 people in 2017. The country faced more blazes this summer—the hottest on record—as well as a record-breaking heatwave which saw the temperature in the central region of the country rise to 46.4°C (115.5°F), which at least one plaintiff said had interfered with schoolwork, and which climate scientists said would not have happened without planetary heating and fossil fuel extraction.
"Without urgent action to cut emissions, [the place] where I live will soon become an unbearable furnace," 20-year-old Martim Agostinho, one of the plaintiffs, said in a statement.
Lawyers for the defendants claimed the group should have litigated the case in the domestic court system, with Belgian legal expert Isabelle Niedlispacher arguing before the court that the plaintiffs did not make an attempt "to invoke, let alone exhaust domestic remedies."
But GLAN, which says it "pursues innovative legal actions across borders," dismissed the claims, noting that the fossil-fueled climate emergency and the extreme weather it's causing have no respect for countries' boundaries and are placing the entire planet at risk.
"It cannot be within a state's discretion whether or not to act to prevent catastrophic climate destruction," said Alison MacDonald, another attorney representing the young people.
Sébastien Duyck, a senior attorney at the Center for International Environmental Law, called the case "truly historic" because the governments of dozens of countries have been compelled to respond.
"These governments are forced to lay out a legal defense justifying the gap between their climate policies and what science says is needed to avoid climate breakdown," said Duyck. "In the broader context of global litigation, this case wields remarkable influence, given that the European Court of Human Rights holds a prominent role in setting legal precedents within Europe and beyond."
The case was brought to the court a month after a state judge in Montana sided with 16 young residents who argued that the state had violated their rights by promoting fossil fuel extraction. The United Nations Environment Program released a report in July showing that climate litigation has emerged as an important driver of far-reaching, concrete action by governments to reduce emissions.
Gearoid O'Cuinn, another lawyer for GLAN, said defendants resorted to "climate denialism" when they argued, as Greece did, that the "effects of climate change, as recorded so far, do not seem to directly affect human life or human health."
Greece has faced both deadly wildfires and flooding in recent weeks.
"European governments' climate policies are consistent with a catastrophic 3° of global heating this century," said Liston. "For the brave youth-applicants, that is a life sentence of heat extremes which are unimaginable even by today's rapidly deteriorating standards."
"The European Court of Human Rights was set up following the horrors of World War II to hold European governments to account for failing to protect human rights," Liston added. "Never has there been as urgent a need for the court to do so than in this case."
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Big Win for Climate Youth in Big Sky Country
We must give credit to the young people who are pushing President Biden, the courts, and Congress to ensure that we all have a future worth living for.
Sep 14, 2023
The wording in Article IX, Section 1, of Montana’s constitution couldn’t be clearer: “The state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations.” Accordingly, in April, a district court judge in Yellowstone County voided a permit for a natural-gas-fired power plant under construction there. Over its lifetime, it would have released an estimated 23 million tons of planet-roasting carbon dioxide and that, ruled the judge, was incompatible with a “clean and healthful environment” in Montana or, for that matter, anywhere else.
Within a week, the state legislature had voted to reinforce a 2011 law barring the consideration of climate change in policymaking and so allowing the construction of the power plant to resume. But that wasn’t the end of the matter. Last month, the lawmakers were slapped down a second time when another district judge ruled in favor of a group of 16 youthful Montanans in a suit filed in 2020 seeking to strike down that very 2011 anti-climate legislation.
In her ruling, Judge Kathy Seeley wrote, “Montana’s climate, environment, and natural resources are unconstitutionally degraded and depleted due to the current atmospheric concentration of [greenhouse gases] and climate change.” She added that “every additional ton of greenhouse gas emissions exacerbates Plaintiffs’ injuries and risks locking in irreversible climate injuries.” The state, she made it abundantly clear, is obligated to correct such a situation.
In court, the young plaintiffs expressed deep concern not only for their own health and well-being but for those of their potential children and grandchildren. What kind of future will they and their kids face?
The plaintiffs, who were all in their teens or younger when their suit, Held v. Montana, was filed three years ago, are represented by a nonprofit group, Our Children’s Trust. Since 2011, it has been pursuing climate action on behalf of this country’s youth in the courts of all 50 states. The Montana case was simply the first to go to trial. The second, a climate case against the Hawaii Department of Transportation, is scheduled to begin next summer.
Matt Rosendale, a Montana Republican serving in the House of Representatives, responded to the Held v. Montana decision with the worst sort of condescending bluster. “This is not a school project,” he insisted. “It’s a courtroom… Judge Seeley did a huge disservice to the courts and to these youths by allowing them to be used as pawns in the Left’s poorly thought-out plan to ruin our power grid and compromise our national security in the name of their Green New Fantasy.”
The only fantasy, however, was Rosendale’s characterization of the proceedings. The plaintiffs’ case was overwhelmingly persuasive, with extensive testimony from climate and pediatric health experts showing that people younger than 25 were going to be especially vulnerable to the many impacts climate change is going to have on physical and psychological health. In her ruling, Seeley summarized some of the damages to which the plaintiffs had testified.
All of the young people in the suit were afflicted with allergies and asthma (three especially severely) and had suffered significant health problems thanks to the unavoidable inhalation of smoke from North America’s ever-increasing wildfires. Much of that damage had occurred during Montana’s horrendous fire seasons of 2017 (when more than 2,400 fires burned across 1.4 million acres of the state) and 2021 (when more than 2,500 fires burned almost 1 million more), followed, of course, by the smoke from the devastating and ongoing Canadian wildfires of this spring and summer.
Three Indigenous plaintiffs testified that climate disruption has already ensured that their traditional sources of food and medicinal plants would become ever scarcer. As a result, it is preventing them from taking part in their usual cultural practices, including ones involving increasingly scarce snow. As the lawsuit put it, the changing planet has “disrupted tribal spiritual practices and longstanding rhythms of tribal life by changing the timing of natural events like bird migration.”
Testimony also showed that the extreme heat of recent summers, only expected to grow more severe in the coming years, is threatening the health of the plaintiffs, all of whom engage in extensive outdoor work or recreation. Those who participate in competitive sports have seen their training severely curtailed by summer heat (and for one of them, a Nordic skier, by lack of winter snow). The plaintiffs’ ability to hunt and fish, especially important in Montana, is being dramatically limited by drought and wildfire.
Some of the plaintiffs testified that increasing damage from storms, flooding, wildfires, and drought will make it ever more difficult, if not impossible, to keep their family’s property intact for coming generations. And backed by the testimony of several experts, the young plaintiffs explained how the increasing chaos brought on by climate change had left them with feelings of deep distress, despair, and loss.
Congressman Rosendale undoubtedly read none of their testimony, which made it so much easier for him to callously dismiss their plight, while accusing them of being witless “pawns” of far greater forces. How, after all, could anyone have been left unmoved by the poignant testimony of 20-year-old Olivia Vesovich? She told the court that, given the severe and ever worsening impact of climate change, she “would not want to make a child endure that. It is one of the greatest sadnesses of my life — and my family is one of the most important parts of my life — that I may not be starting a family of my own. It breaks my heart, it really does.”
Plaintiffs from the Future
From the 1990s through the first two decades of this century, academic discussion of “intergenerational climate justice” weighed the interests of the “current generation” that may or may not do what’s needed to end greenhouse gas emissions against “future generations” lacking any say in the matter. They will nonetheless suffer its increasingly severe consequences. (Of course, those of us in privileged societies have also largely ignored the billions of people globally with no say in the matter and so the functional equivalents of those “future generations.”)
Now, with heat waves, megafires, increasingly severe freak storms, and floods striking ever more often, those at-risk future generations are finally beginning to show up, well ahead of schedule. That, after all, is just what the Held v. Montana plaintiffs are, as are the young Global South activists who shook up the most recent world climate summits by refusing to accept the selling-out of their future.
Though it’s cited often enough in relation to climate change, there’s nothing magical about the year 2050. It’s just a nice, round, midcentury number. That’s undoubtedly why world climate negotiators have chosen it as the target year for national pledges to drive greenhouse gas emissions down to zero.
Come 2050, the Montana plaintiffs will only be in their thirties and forties. By that time, they should know whether the world acted boldly enough in the 2020s to turn the climate emergency around.
In court, the young plaintiffs expressed deep concern not only for their own health and well-being but for those of their potential children and grandchildren. What kind of future will they and their kids face? For one thing, those still living in Montana in 2050 can expect to deal with wildfire and smoke disasters far worse than the ones endured in 2017, 2021, or 2023. Predictions are that, without drastic action, between 2041 and 2070, much of Montana will see a 600% increase in the incidence of “very large wildfires” — those covering 20 square miles or more.
The fire risk will have been raised largely by intensifying global heat. Consider this warning from U.S. government scientists, should the world economy carry on with business-as-usual in the coming decades:
“[A] teenager in eastern Montana in 2075 might experience maximum summer temperatures that his or her grandparents would have had to travel to the Mojave Desert to see, [while] a child born in southern Texas in 2060 might experience as much as 6 weeks per summer when maximum temperatures are hotter than his or her grandparents experienced just once per year. And in this same future, a child in the southeastern United States can expect to spend more than half of his or her summer experiencing heat waves that would have occurred only 3 days per year for his or her grandparents.”
Unless there are steep reductions in global carbon emissions, Montana will be eternally burning, while much of the country to the south and east grows even hotter and more unbearably humid. So, should young Montanans migrate north to Canada? At one time, that seemed like a viable climate escape route. But in 2023, with a large share of the U.S. population inhaling smoke from the extraordinarily vast and intense wildfires burning across that country, month after month, northward migration could just be a jump from the frying pan into the all-too-literal fire.
A Constitutional Right to a Future
Such dire forecasts are based on worst-case “business-as-usual” scenarios, and that’s important. After all, catastrophe is not inevitable. If today’s youth find themselves facing such nightmares in the 2050s, it will be because our nation and the rest of the world didn’t act in a necessary fashion in this decade. Such conditions can indeed be prevented, but only if the climate struggle intensifies.
When the Montana 16 filed their suit in 2020, only two of them were old enough to vote in that fall’s election. But as Judge Seeley ruled, they all had standing to challenge the fossil-fuel juggernaut in a court of law. And so far, they’re winning.
Amber Polk, assistant professor of law at Florida International University, focuses her studies on new legal claims by the environmental rights movement. She recently wrote a short history of “green amendments” — constitutional provisions like the section of Article IX on which Held v. Montana relied. Hawaii, Illinois, Massachusetts, Montana, and Pennsylvania all added such provisions to their state constitutions in the 1970s, as environmentalism was surging. But in the 1980s and 1990s, legal cases based on green amendments foundered until, in 1999, the Supreme Court of — you guessed it! — Montana struck down laws that permitted water pollution, basing their decision on the constitutional “right” of state residents “to a clean and healthful environment.”
Fourteen years later, Pennsylvania’s Supreme Court relied on a similar green amendment to strike down a law permitting hydraulic fracturing (“fracking”) statewide. Until Held v. Montana, though, green amendments had not been used to challenge laws explicitly affecting climate policy. Count on one thing, however: they will be widely tested in the coming years (though a conservative, anything-but-environmentalist Supreme Court could prove a problem in wielding them).
The Montana case, writes Polk,
“sets a groundbreaking precedent for climate litigation and demonstrates a new way in which green amendments can be invoked to elicit environmental change. It suggests that in other states with green amendments, state laws cannot forbid the consideration of greenhouse gas emissions and their climate impact during environmental review… In the states that have green amendments, climate advocates will certainly rely on the Montana youth case as they challenge state laws that promote climate change.
And expect ever more challenges in places where such green amendments exist. New York typically passed one last year and 13 other states — some red like Montana, some blue, some purple — are considering them, according to Polk.
Unfortunately, only limited reductions of greenhouse gases can be achieved via state-by-state challenges to bad laws. Congressional action would be needed to, for example, achieve the most essential policy of all: a rapid, mandatory phase-out of oil, natural gas, and coal nationwide. You would, however, need a very different Congress to have a hope in hell of passing such a bill. Still, such a phase-out is a goal of Juliana v. United States, another youth climate lawsuit, originally filed in federal court in 2015 and still pending after eight long years.
In that case, 21 plaintiffs, aged seven to 19 (at the time of its filing) and backed by Our Children’s Trust, allege that the federal government has permitted the continued extraction and burning of fossil fuels despite knowing that they cause “dangerous concentrations of CO2 in the atmosphere and a dangerous climate system, and irreversible harm to the natural systems critical to Plaintiffs’ rights to life, liberty, and property.” These activities, it adds, “unconstitutionally favor the present, temporary economic benefits of certain citizens, especially corporations, over Plaintiffs’ rights to life, liberty, and property.”
In Juliana, the youthful plaintiffs are asking the courts to order the federal government to take wide-ranging, ambitious climate action, including “to prepare and implement an enforceable national remedial plan to phase out fossil fuel emissions and draw down excess atmospheric CO2.”
Three administrations — Obama’s, Trump’s, and now Biden’s — have vigorously fought back against the youths’ case and, in 2021, it appeared doomed when an appeals court ruled that the plaintiffs lacked standing. This summer, however, Juliana came back from the dead when a federal judge in Oregon ruled that the plaintiffs could proceed to trial after amending their filing. It remains in limbo, however, thanks to continued fierce opposition from President Biden’s Department of Justice. As CNN reported, the DOJ “has argued there is no federal public trust doctrine that creates a right for a stable climate system for U.S. citizens.”
Such a refusal to take climate disruption seriously came even as the president was touring the country and bragging about energy and electric-vehicle projects related to the climate provisions in last year’s Inflation Reduction Act. Biden, it seems, is happy to take credit for limited green actions, but isn’t faintly ready to plan for truly phasing out fossil fuels and so keeping the world livable through this century and beyond. So, give some credit to the young who are pushing him, the courts, and Congress to ensure that they have a future worth living for. In truth, nothing matters more than that.
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UN Affirms Climate Crisis Threatens Children's Rights, Potentially Bolstering Youth-Led Lawsuits
"States should take positive measures to ensure that children are protected from foreseeable premature or unnatural death and threats to their lives," reads the updated document
Aug 28, 2023
A group of children in Portugal who are expected to present arguments in a climate case at the European Court of Human Rights next month may have a stronger legal standing following a formal opinion issued Monday by a United Nations committee, which affirms that the climate, biodiversity, and pollution crises present "an urgent and systemic threat to children's rights globally."
After consulting with more than 16,000 children in more than 120 countries, the U.N. Committee on the Rights of the Child updated the 1989 Convention on children's rights to say that there is an urgent need to address the "triple planetary crisis" and to explain "how children's rights under the Convention on the Rights of the Child apply to environmental protection, and confirms that children have a right to a clean, healthy and sustainable environment."
"The right to life is threatened by environmental degradation, including climate change, pollution, and biodiversity loss, which are closely linked to other fundamental challenges impeding the realization of this right, including poverty, inequality, and conflict," reads the document, which was updated after a two-year period of gathering input from children around the world. "States should take positive measures to ensure that children are protected from foreseeable premature or unnatural death and threats to their lives that may be caused by acts and omissions, as well as the activities of business actors, and enjoy their right to life with dignity."
The formal opinion—called General Comment No. 26—and updated document were released four weeks before the Portuguese case is set to go to court, where six children are preparing to argue that the 33 member-states of the European Union have failed to fight the climate crisis and to seek a legally binding decision requiring the countries to make immediate, deeper cuts to their fossil fuel emissions.
At least 19 other cases filed by youths in countries including Brazil, the United States, and Indonesia make similar arguments, and legal analysts said Monday that the updated treaty may help the young people in court.
"This could definitely strengthen their hand because now there's a fully articulated set of guidance that pulls everything together in one place," lawyer Ann Skelton, who chairs the U.N. Committee on the Rights of the Child, told Reuters.
Noam Peleg, a law professor at the University of New South Wales in Australia, wrote at The Conversation that the changes offer "a practical guide to help children" fight their government's continued support of planet-heating fossil fuels and clarifies that governments have an obligation to protect children from the climate emergency as part of their duty to defend human rights.
"The general comment also identifies children as agents in their own lives," said Peleg. "By extension, this means children have a right to participate in the drafting of environmental policies or laws that will affect them."
As Common Dreams reported last month, climate litigation has emerged in recent years as a key driver of climate justice.
The committee's changes were announced two weeks after a state judge in Montana ruled that the state violated the constitutional rights of 16 young residents by promoting fossil fuel extraction.
"Children worldwide have been leading the fight against climate change; calling on their governments and corporations to take action to protect the planet and their future," said David Boyd, U.N. special rapporteur on human rights and the environment. "With its General Comment No. 26, the Committee on the Rights of the Child not only echoes and amplifies children's voices, but also clearly defines the rights of children in relation to the environment that state parties should respect, protect and fulfill collectively and urgently."
Some young people and advocates who were consulted by the committee had pushed the panel to put the world's children in an even stronger legal position by calling on countries to take action beyond that which is demanded by the 2015 Paris climate agreement, which calls for emissions cuts that would limit planetary heating to 1.5°C above preindustrial temperatures.
Kelly Matheson, deputy director of global climate litigation at Our Children's Trust—which represented the children in the Montana case—toldReuters that the new document represents "such a missed opportunity."
"It's an exercise in incrementalism instead of taking quantum leap forward," Matheson said.
Committee member Philip Jaffé toldReuters that climate leader Greta Thunberg, who at 15 began a protest outside the Swedish Parliament that grew into the global school strike demanding climate action, had called on the panel "to be more vigorous and somewhat bolder."
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