Photo of the plaintiffs in Montana v. State of Montana heading into court June 13, by Robin Loznak/Courtesy of Our Children’s Trust.
On August 14, 2023, District Court Judge Kathy Seeley of Montana handed down a historic decision in Held v State of Montana that state laws that promote fossil fuels and prohibit the state from considering climate change in its policymaking violate the constitutional rights of Montana citizens to a clean and healthful environment. The decision in this case – one of a growing number where youth defend climate in court – is important for many reasons including its grounding in scientific data on the impact of fossil fuel use on climate, and the disproportionate harm to children. The plaintiffs were sixteen children, aged 2 to 18 when they filed the case in 2020.
News of their victory made worldwide headlines. Other climate cases by youthful plaintiffs are underway, including one brought in September, 2023 in the European Court of Human Rights by six people aged 11 to 24. This article provides an overview of the history of constitutional environmental rights in the United States, showing that litigation alone is not sufficient to stop the harm. Rotarians can help by advocating for legislation and investment to decarbonize our economy.
The birth and rocky childhood of environmental rights in the US:
“Why not give our natural environment the same kind of constitutional protection that has been given to our political rights?” 33-year-old Pennsylvania State Representative (later State Senator) Franklin Kurry, asked himself that question in 1969.[1] It proved surprisingly uncontroversial. By 1972, his idea passed the state’s House and Senate twice and was approved by the voters by a 4 to 1 margin. It became Article I, Section 27, of Pennsylvania’s Constitution—the first such Environmental Rights Amendment in the nation—saying:
“The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.”
The following year, Montana held a constitutional convention. Delegate Jerome Cate proposed similar language to create a public trust and give citizens the right to protect and enforce that trust by legal action.[2] While Mr. Cate’s language didn’t prevail, the delegates eventually included “the right to a clean and healthful environment” as one of the “inalienable rights” in Article II § 3 of the state Constitution.
Pennsylvania and Montana led the United States in recognizing environmental rights as fundamental rights of their citizens—enshrined in the same articles that guaranteed rights to life and liberty. Still, the early years were disappointing. After some early attempts to enforce the provisions failed in court, they were rendered effectively dormant for decades. Saying citizens had certain rights was one thing, but moving from words to action was something very different.
The courts’ approach began to change in recent years. Judges read their respective Constitutions and found that these environmental rights were, in the words of Pennsylvania’s Supreme Court, “neither meaningless nor merely aspirational.” While judges were not addressing climate change in these cases, they pointed to the possibility that environmental rights include a requirement for meaningful climate action. It was not long before other cases followed—often brought by youth plaintiffs—that hoped to enforce their rights and protect their future.
In November of 2013 Ashley Funk, then a teenager, petitioned Pennsylvania to set strict targets for pollution reduction. After initial denials from the agency and appeals to the courts, her case was eventually dismissed. While the state did not deny it had a duty to reduce greenhouse gasses (GHGs), the courts held that the state was not required to address GHGs the specific way Ms. Funk and her fellow petitioners wanted.[3]
In March of 2020, Rikki Held and fifteen other young residents challenged Montana laws that, among other things, prohibited consideration of GHG emissions and climate impacts during environmental reviews. On August 14, 2023, District Court Judge Kathy Seeley issued a ruling agreeing with the plaintiffs and finding that those restrictive laws were an unconstitutional violation of Montana citizens’ right to a clean and healthful environment.[4]
While Ms. Held’s case marks an important victory, the practical result leaves Montana and Pennsylvania in much the same position. The states can’t ignore climate change, and they might even have to act in some way, but there is no clear guidance from the courts clarifying what specific action is required. Increasing recognition of environmental rights is a step in the right direction but, so far, it has not translated into action.
This sort of legal challenge, led by youth plaintiffs, isn’t unique to the United States. In September 2023, a case brought by Duarte Agostinho and five other young people between the ages of 11 and 24 was heard before the European Court of Human Rights. In this case, they claimed that inaction on climate change on the part of 33 states violates several provisions of the European Convention on Human Rights as well as other agreements. Should the plaintiffs succeed, we may see these states be required to significantly cut emissions.
If environmental rights are meaningful in Montana, Pennsylvania, or in any of the other cases working their way through courts around the world, those rights must be more than words on paper. They must lead to concrete actions that reduce our dependence on polluting fossil fuels and help build clean and sustainable economies for the future. The courts may point the way, but it will ultimately fall to the people to demand legislative action.
We need our policymakers to recognize that the biggest sources of carbon pollution—transportation, electric generation, and industrial emissions—all point to our overuse of fossil fuels. Fixing that problem means ending handouts for polluters and investing in clean renewable generation and energy efficiency. It means putting zero-emission cars and trucks on our roads and building the infrastructure to support them. And it means enacting policies to create green jobs and decarbonize industry. That won’t solve the climate crisis entirely, but when the bathtub is overflowing, you reach for the faucet before you reach for a mop.
Environmental attorney Rob Altenburg is Senior Director for Energy and Climate for PennFuture. He works with regulatory agencies and clean energy industry experts in the US Commonwealth of Pennsylvania. Rob Altenburg has provided testimony the White House, Congress, and numerous state and federal agencies and has been interviewed by many major media including ABC, NBC, NPR, the Atlantic, Fortune, and the Guardian. Before joining PennFuture, he spent over 20 years working on air quality policy and forecasting for the Pennsylvania Department of Environmental Protection. He is a member of the Rotary Club of Mechanicsburg-North, Pennsylvania, USA.
[1] Franklin Kurry, Clean Politics Clean Streams: A Legislative Autobiography and Reflections, Lehigh University Press, 2011
[2] Montana, Constitutional Convention (1971-1972). 1211, Montana Legislature Legislative Council (available at: https://archive.org/details/montanaconstitut04mont/page/1198/mode/2up).
[3] Funk v. Wolf, 144 A.3d 228 (Pa. Comm. 2016), aff’d, 158 A.3d 642 (Pa 2017).
[4] Held v. Montana, CDV-2020-307 (Mont. 1st J.D., 2023)