Lessons in Advocacy From Montana v. Held

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On Aug. 14, 2023, in Held v. Montana, Judge Kathy Seeley ruled in favor of 16 youth plaintiffs in the first ever constitutional climate change lawsuit to go to trial in the United States. Historically, constitutional climate cases have been dismissed before trial on grounds that plaintiffs lack standing or the political question doctrine applies. Locally, a majority of the Washington Supreme Court recently denied review of Aji P. v. Washington, a youth climate case, upholding the Washington Court of Appeals dismissal of the case on grounds that the court could not provide a remedy to plaintiff’s climate harms. In dissent, Chief Justice González and Associate Justice Whitener wrote: “The court should not avoid its constitutional obligations that protect not only the rights of these youths but all future generations who will suffer from the consequences of climate change.

The default posture of most judicial bodies in the United States deciding these cases has been judicial restraint. But Montana was different.

The First Judicial District Court of Montana ruled that the state had violated the plaintiffs’ constitutional rights to “a clean and healthful environment” as well as rights to seeking safety, health, and happiness and individual dignity, guaranteed by Montana’s constitution and granted the youth plaintiffs’ request for declaratory relief. The court specifically declared as unconstitutional and enjoined Montana’s environmental laws, because they prohibited its state agencies from considering climate change or greenhouse gas emissions when issuing permits for fossil fuel activities and removed “the only preventative, equitable relief available to the public and MEPA litigants.” The court found that plaintiffs had established all the elements of standing, and that “[e]very additional ton of GHG [greenhouse gas] emissions exacerbates Plaintiffs’ injuries and risks locking in irreversible climate injuries.”

This column focuses on how effective advocacy by plaintiffs’ counsel surmounted the usual obstacles and resulted in a ruling in the plaintiffs’ favor.