Climate Change Litigation: A New Tool for Environmental Justice
By Violet Boyd
In recent years, climate change litigation has emerged as a powerful tool to combat the pressing global climate crisis. According to a report by the UN Environment Programme (UNEP) and the Sabin Center for Climate Change Law at Columbia University, climate-based litigation is now being pursued across more countries than ever before. The practice aims to address issues such as greenwashing, carbon offsets, and energy-intensive data centers. As of June 30, over three thousand climate-related cases have been filed in 55 national jurisdictions and 24 international or regional courts, tribunals, or quasi-judicial bodies. Momentum behind this practice must be maintained, and lawyers must continue to develop its capabilities to fight the intensifying threat of climate change.
Recently, the United States held its first constitutional climate change trial in Held v. State of Montana. In March 2020, 16 Montana youth alleged that the state’s role in exacerbating climate change violated the state’s constitutional provision guaranteeing a “clean and healthful environment.” The lawsuit challenged fossil fuel-based provisions of the state’s energy policy, including directives to promote the state’s use of coal, oil, and gas instead of more sustainable energy sources. It also challenged a provision of the Montana Environmental Policy Act (MEPA) that “forbids the State and its agents from considering the impacts of greenhouse gas (GHG) emissions or climate change” in any environmental review. The 16 plaintiffs testified that they had suffered economic damages, loss of experiences, physiological injuries, and psychological harm. After the district court ruled in favor of the plaintiffs, the state appealed the decision to the Montana Supreme Court, which ultimately affirmed that the plaintiffs have a fundamental constitutional right to a “clean and healthful environment.”
The conclusions from Held v. State are historic. The case marks the first time in which an American court decided on the merits that a law promoting the use and consumption of fossil fuels infringed upon constitutional rights. The ruling not only provides relief for the plaintiffs but also a path forward for future litigants seeking climate justice. As lead plaintiff Rikki Held told the Daily Montanan, “This ruling is a victory not just for us, but for every young person whose future is threatened by climate change. We have been heard, and today the Montana Supreme Court has affirmed that our rights to a safe and healthy climate cannot be ignored.”
Yet even as climate advocates celebrate this victory, anti-climate litigation is on the rise. Such cases seek to deregulate environmental protections or deprioritize environmental, social, and corporate governance issues in investments. Some lawsuits target public opposition to high-emitting projects, aiming to silence advocates, journalists, and civil society organizations. While some cases challenge climate action itself, others are concerned with the way in which it is implemented. For example, Environmental, Social, and Governance (ESG) backlash cases challenge the incorporation of climate risk into financial decision-making. Strategic Litigation Against Public Participation (SLAPP) suits against non-governmental organizations (NGOs) and shareholder activists seek to deter them from pursuing climate agendas. Green v. green cases concern the potential trade-offs between climate and biodiversity or other environmental claims.
Although anti-climate litigation is growing, climate advocates must not be deterred. In addition to Montana, other states such as Hawaii, Illinois, Massachusetts, New York, and Pennsylvania have a right to a quality environment in their constitutions. A constitutional approach may offer a solution to the federalization of climate change litigation. Additionally, it may help litigants by providing a preestablished duty of care. Both duty and causation are difficult to prove in environmental cases given the number of polluters and the manner by which environmental harms create a widespread impact. However, Held v. State demonstrates how constitutional protections may override these challenges. Under the presumption that a state has an affirmative duty to protect environmental rights, a court may be able to shift focus from causation to duty. The Montana case also exemplifies how individual states can address global issues, amplifying the power of local action. Inger Andersen, Executive Director of the UNEP, noted the importance of litigation in the fight against climate change. “Transforming our energy, mobility, housing, and food systems must be a collective effort, through ambitious and science-based policymaking. Independent judicial systems are essential to ensuring this transformation is both just and effective,” said Andersen.
As climate change is a complex issue that demands a multidisciplinary approach, the importance of climate litigation must not be ignored. Lawyers must recognize the power of this new tool — and wield it boldly — to protect the planet and secure a sustainable future for generations to come.
