Montana climate case could launch ripple effect
Expert says court’s ruling may have ‘consequences’ for fossil fuel industry
When a state ruling deterred a proposed wood waste-burning power plant in East Springfield last year, the Springfield Climate Justice Coalition barely had time to celebrate its successful advocacy.
Immediately, the group, which fights against current and proposed polluting projects, turned to face another challenge: a proposed gas pipeline running from Longmeadow to Springfield. The state recently sent that proposal back to Eversource for further research and outreach.
The coalition is one of hundreds of groups across the country in a never-ending fight for environmental justice. Often, these grass-roots organizations are underfunded and operating on small, volunteer-heavy staffs.
“We are fighting with whatever resources we can scrape together,” said one of the coalition’s lead organizers, Naia Tenerowicz. “Until we’ve changed the way our society operates, we’re going to have to keep fighting like that.”
Surprisingly, a glimmer of hope for that societal change appeared earlier this month in Montana. Despite the state’s politically conservative reputation, a Montana court decided the state had acted unconstitutionally by neglecting to consider climate change when approving fossil fuel projects.
The case, Held v. Montana, included 16 youth plaintiffs represented by the legal nonprofit Our Children’s Trust. It targeted language in Montana’s constitution that states, “The state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations.”
While the case does not set a federal precedent,
Tenerowicz, other activists, and environmental lawyers are hoping for a “ripple effect.” Other states, including Pennsylvania and New York, have similar language in their constitutions, and Massachusetts has a comparable provision titled Article 97.
“The Montana decision could be the catalyst for progress,” Tenerowicz, 26, said. “Montana is not the most progressive or climate-forward state, and this decision speaks to the fact that there’s starting to be a change in mind-set.”
Dylan Sanders, a Boston environmental lawyer, represented four youths who successfully sued the Massachusetts Department of Environmental Protection in the 2016 case Kain v. Department of Environmental Protection. Like those in Montana, the young plaintiffs in the Massachusetts case were connected via Our Children’s Trust.
Under the Massachusetts Global Warming Solutions Act, the plaintiffs demanded the Department of Environmental Protection adopt mandatory, annually declining greenhouse gas emissions standards. Sanders said the Kain v. Department of Environmental Protection case operated similarly to Held v. Montana, utilizing laws unique to Massachusetts and Montana, respectively. So, while the rulings in each state may not be transferrable, the logic is.
“The Montana ruling is certainly a prominent development,” Sanders said. “It’s specific to Montana state law the same way Kain was to Massachusetts, but the broader implication is that youths have the standing to bring these claims.”
Lisa Goodheart, a Massachusetts attorney whose practice focuses on environmental law, said the doctrine of standing is a key component of Held v. Montana — and the reason similar arguments could prove successful in other states.
The standing doctrine requires a plaintiff to prove that the harm they experienced is unique to them and redressable by a court. This doctrine is a “goto defense” for parties opposing climate change, who can use it to avoid blame for harm to specific plaintiffs using the defense that many more people were affected by climate change, Goodheart said.
Held v. Montana illustrated the disproportionate harm of climate change on young people by telling the stories of the 16 plaintiffs and proving that only a statewide change could provide effective relief, Goodheart said. She added that while it’s not as simple as copying and pasting, litigators across the country can apply Held v. Montana’s logic, as long as they can find appropriate laws in their state.
“Everybody’s going to be looking at this case as a model for how you prove standing in a climate change case,” she said. “It’s going to be cited over and over, even though the specifics will be different.”
Cases like Held v. Montana show that courts are increasingly willing to decide cases about climate harms, said Brad Campbell, president of the Conservation Law Foundation, a Boston firm that advocates for environmental justice. This uptick in climate-related litigation may have “potentially staggering consequences” for the fossil fuel industry, he said.
“This is part of an increasing trend in which liability of fossil fuel companies is being expanded under traditional principles of legal interpretation,” Campbell said. “We’re beginning to see the first battles in a broad effort to bring the fossil fuel industry to heel.”
The foundation successfully sued Exxon Mobil in 2016 over an oil terminal on the border of Chelsea and Everett. The lawsuit utilized the Clean Water Act, which Campbell said does not explicitly mention climate change but was used in this case to account for it. Both Sanders and Campbell said the use of environmental protection laws to account for climate change is a type of logic that’s increasingly common — and successful — in climate lawsuits.
This is exciting for Mireille Bejjani, the coexecutive director of Slingshot, a regional environmental justice nonprofit that fights polluting projects like landfill expansions and new power plants. Bejjani hopes the ruling in Montana will spark an effort to strengthen regulations on polluters, because companies can often do the bare minimum to meet guidelines that aren’t rigorous enough.
“There are a lot of cases where the company is in line with state regulations but that doesn’t mean the project is actually good or safe for the community,” Bejjani said. “We need accountability when regulations aren’t doing enough.”
Grass-roots organizer Wendy Morrill, who founded New Bedford nonprofit South Coast Neighbors United, said she feels inspired by the youth plaintiffs in Held v. Montana. She hopes the case will raise awareness about environmental injustice, especially in communities such as New Bedford that have suffered from long-term polluters in addition to wealth disparities and racial discrimination.
“We need landmark cases like this to pave the way for serious change,” she said. “If environmental justice is going to become an actionable item, a real policy, it needs to be part of the regulations.”