Held v. Montana – The Future of Climate Change Litigation
Summary: Environmental groups concerned with climate change face a significant challenge in overcoming the hurdle of standing. Standing has three requirements: 1) injury in fact; 2) causation; 3) and redressability. Of these three requirements, injury in fact and redressability often prevent these groups from proceeding on the merits. In Held v. Montana, a Montana state district court ruled that sixteen Youth Plaintiffs satisfied all three requirements of standing for their suit under the Montana Constitution, which provides a right to a clean and healthful environment. The court found the Youth Plaintiffs’ mental injuries, such as depression and anxiety, caused by climate change are recognizable injuries. Although this may seem surprising and against more recent United States Supreme Court precedent, this holding actually has a basis in the famous case Brown v. Board of Education. The court also held that the Youth Plaintiffs’ met the requirements of redressability. The Montana court ruled sections of Montana’s energy code unconstitutional because it prohibited state agencies from considering greenhouse gas emissions when approving fossil fuel activities in the state. Currently, the same firm that represented the Youth Plaintiffs are working on another case, Juliana v. United States, to get a comparable ruling in federal court. However, the fate of this litigation is uncertain. In the meantime, environmental groups in states with a similar constitutional provision to Montana should litigate to help change standing jurisprudence and actually address the problems of climate change.
Preferred Citation: Nicholas VanHee, Held v. Montana – The Future of Climate Change Litigation, 64 Washburn L.J. Online 1 (2025), https://washburnlaw.edu/wljonline/vanhee-climate.
Environmental litigation faces many challenges, but climate change litigation in particular faces an even more difficult challenge in overcoming the hurdle of standing. Under Article III of the Constitution, courts can only resolve “cases and controversies,” which requires the plaintiff to demonstrate they have standing.[1] Standing has three elements: 1) injury in fact; 2) causation; 3) and redressability.[2] Injury in fact means a plaintiff must have suffered an injury that was “concrete and particularized” and “actual or imminent.”[3] These requirements may seem vague, but the United States Supreme Court provided definitions for these requirements in Lujan v. Defenders of Wildlife.[4] For an injury to be concrete it must be a cognizable injury, such as economic damage, physical damage, and loss of the ability to experience an event like watching an animal.[5] For an injury to be particularized it must be suffered by an identifiable group and not just the public at large.[6] The timing of the injury is also significant: an actual injury is one that has already been suffered; whereas, an imminent injury is one that expresses an event that the injury will occur in the near future.[7] The other two elements of standing are more straightforward. To meet the causation element, the injury must be fairly traceable to the actions of the defendant.[8] For an injury to be redressable, the court must be able to grant the Plaintiff’s requested relief.[9]
In a typical environmental lawsuit, a concerned group of people sue over harm to nature or a natural resource, but the harm usually does not directly threaten or pose a danger to the group.[10] Often these groups ask the courts to use their power to protect nature or the natural resource.[11] The United States Supreme Court has heard cases regarding the destruction or removal of unique environmental places,[12] the threaten extinction of an endangered species,[13] and the failure of a manufacturer to submit required forms about hazardous and toxic chemicals.[14] However, the Supreme Court dismissed all of these cases because the groups who brought the suit did not meet the requirements for standing.[15] Generally, these groups did not meet the injury in fact or the redressability requirement.[16] The injury in fact requirement causes problems for litigants because courts have found that general grievances do not suffice and no individual person in the group has a personal stake in the outcome.[17]
This Comment will argue Held v. Montana (“Held”) provides a roadmap for climate change litigation to overcome the hurdles of standing in state courts. This Comment will focus on why the Montana District Court recognizing the psychological harms suffered by the Youth Plaintiffs might seem surprising but is actually supported by precedent from the United States Supreme Court. In addition, this Comment will provide a remedy that redresses the effect of oil and gas extraction on climate change. Held poses immediate implications for states with a comparable constitutional provision such as Hawai’i,[18] Massachusetts,[19] Illinois,[20] Pennsylvania,[21] and New York.[22] With enough political pressure, similar lawsuits like Held might see success in states without a similar constitutional provision or perhaps even at the federal level.
On March 13, 2020, sixteen young Montanans (“Youth Plaintiffs”) filed a complaint against the State of Montana and several of its agencies (collectively the “Defendants”), arguing the state’s fossil fuel-based energy system violated the Montana Constitution.[23] Specifically the Youth Plaintiffs sought the court to declare § 90-4-1001(1)(c)–(g) (stating the goals of Montana’s energy policy) and § 75-1-201(2)(a) (“Montana Environmental Policy Act” or “MEPA limitation”) of the Montana code unconstitutional, and enjoin Montana from approving any more fossil fuel projects without considering greenhouse gas emissions.[24] Montana’s energy policy encouraged the promotion, expansion, and increase of the state’s use of coal, oil, and gas.[25] On March 16, 2023, Montana Governor Greg Gianforte signed a bill into law that repealed § 90-4-1001which prompted the defendants to file a motion to partially dismiss for mootness.[26] On May 23, 2023, the court granted the Defendants’ motion.[27] By granting this motion, the Youth Plaintiffs could no longer argue about the unconstitutionality of § 90-4-1001 as a court cannot invalidate a law no longer in force.[28] However, the Youth Plaintiffs could still sue over the MEPA limitation.
The MEPA limitation prohibits Montana agencies from including the actual or potential environmental effects beyond Montana’s borders.[29] In response to a summary judgment order for a gas company in another case,[30] the legislature clarified the MEPA limitation.[31] The clarification explicitly prohibits Montana’s agencies from considering “an evaluation of greenhouse gas emissions and corresponding impacts to the climate in the state or beyond the state’s borders” in their environmental reviews.[32] Prior to 2011, Defendant state agencies quantified and disclosed greenhouse gas (“GHG”) emissions and climate impacts from fossil fuel projects.[33] However, because of the MEPA limitation, state agencies could not consider climate change impacts and GHG emissions when conducting environmental reviews after 2011.[34] In Montana’s motion for summary judgment, the state argued the MEPA limitation does not offend the Montana Constitution with or without the clarification by the legislature.[35] Regardless, the court denied Montana’s motion for summary judgment in the Held case, and allowed the Youth Plaintiffs to proceed to trial.[36]
The Youth Plaintiffs alleged that because of these policies, they suffered economic damages,[37] loss of experiences,[38] physiological injuries,[39] and psychological harm.[40] The Defendants filed a motion for independent medical examinations (“IME”) of the Youth Plaintiffs mental health or to strike expert testimony regarding the Youth Plaintiffs’ mental health from the record, challenging the validity of the psychological injuries suffered by the Youth Plaintiffs.[41] The court denied this motion, finding IMEs unnecessary as the Youth Plaintiffs did not centrally rely on their mental health to maintain standing.[42] The court further supported its denial by stating that the Youth Plaintiffs’ mental health is not really, and genuinely, in controversy and that the Defendants failed to establish good cause for the examinations.[43]
At trial the state did not dispute any of the harms currently suffered or that would be suffered by the Youth Plaintiffs.[44] The Youth Plaintiffs presented testimony from twenty-four witnesses and admitted one hundred sixty-eight exhibits.[45] Witnesses for the Youth plaintiffs included climate scientists and medical professionals such as Nobel Peace Prize Laureate Dr. Steven Running,[46] Dr. Cathy Whitlock,[47] Dr. Lori Byron,[48] Dr. Lise Van Susteren,[49] and Michael Durglo Jr.[50] The Defendants presented testimony from three witnesses and admitted four exhibits.[51] Dr. Terry Anderson, an expert economist, testified on behalf of the Defendants.[52] The court found his testimony was not well-supported and contained errors, so it was not given weight by the Court.[53]
Despite Supreme Court precedent finding psychic satisfaction is not a cognizable injury,[54] the court in Held v. Montana found the Youth Plaintiffs mental health injuries stemming from climate change were cognizable injuries.[55] Understanding the significance of this holding requires an examination of federal precedent.
Citizens for a Better Environment (“CBE”), a citizen environmental group, sued a small manufacturing plant in Chicago for violations of the Emergency Planning and Community Right-To-Know Act (“EPCRA”).[56] EPCRA requires facilities that handle toxic and hazardous chemicals submit reports to the Environmental Protection Agency (“EPA”).[57] CBE informed the EPA of Steel Co’s, the manufacturer, failure to timely submit the required reports and the EPA decided not to act against the manufacturer.[58] Any person, through EPCRA, can sue a facility over a failure to submit the required reports to the EPA.[59] CBE sued the manufacturer after it had already submitted its reports to the EPA because the manufacturer did not timely file its reports. This failure adversely affected CBE’s members’ safety, health, recreation, economic, aesthetic and environmental interests in the past, present and future.[60] The district court granted the manufacturer’s motion to dismiss and the court of appeals reversed.[61] The Supreme Court granted review of the case to determine whether there was standing.[62]
The United States Supreme Court only analyzed the third requirement of standing: redressability.[63] CBE sought six remedies,[64] and the Court rejected all of these remedies under the redressability requirements.[65] For purposes of this Comment only the fourth remedy is relevant. Regarding the fourth remedy, the Court held that although the EPCRA might be read to award money damages to CBE, the damages instead go to the Treasury.[66] CBE requested the damages not to fix their own injuries, but to vindicate the rule of law.[67] The Court found this unacceptable as it would effectively remove the redressability requirement.[68] “[A]lthough a suitor may derive great comfort and joy from the fact that the United States Treasury is not cheated, . . . that psychic satisfaction is not an acceptable Article III remedy because it does not redress a cognizable Article III injury.”[69]
In 2020, twenty-one citizens sued the federal government for permitting, authorizing, and subsidizing fossil fuel use despite the government’s knowledge about fossil fuel’s effects on climate change.[70] The plaintiffs alleged they suffered psychological harm, impairment to recreational interest, worsening medical conditions, and damage to property.[71] The plaintiffs sued under the Fifth Amendment claiming a right to “a ‘climate system capable of sustaining human life.’”[72] Before the Ninth Circuit could determine whether such a constitutional right existed, it needed to resolve the issue of standing.[73] Plaintiffs sought an order requiring the government develop a plan to “phase out fossil fuel emissions and draw down excess atmospheric CO2.”[74] The Ninth Circuit held this remedy was beyond their power and that climate change must be resolved by either the Executive Branch or by Congress.[75] The Ninth Circuit noted that even if it had granted this extraordinary remedy, it would not resolve the issue.[76] Plaintiffs’ experts established that to sufficiently redress the harms plaintiffs experienced would require more than ending the use of fossil fuels but a “fundamental transformation” of the United States’ energy system.[77] The Ninth Circuit reversed the district court’s finding of standing and remanded with instructions to dismiss.[78] On remand, the district court dismissed, but granted the plaintiffs’ motion to amend their complaint.[79]
Although Held v. Montana was heard in state court, federal law precedent on standing applies because the standards are quite similar to Montana’s standards.[80] This similarity means federal law precedent is persuasive in interpreting the standing requirements under the Montana Constitution.[81] The same is not true for state law on standing in federal courts as “standing in federal court is a question of federal law, not state law.”[82] “[S]tate courts are not bound by the limitations of a case or controversy [under Article III] or other federal rules of justiciability even when they address issues of federal law, as when they are called upon to interpret the Constitution.”[83] However, the holding in Held v. Montana provides a roadmap for environmental groups to enjoy success in state courts.
The Montana district court found the Youth Plaintiffs had standing to bring the case.[84] The Youth Plaintiffs satisfied the first element of injury in fact with their past and present injuries “to their physical and mental health, homes and property, recreational, spiritual, and aesthetic interests, tribal and cultural traditions, economic security, and happiness.”[85] Surprisingly, the court found the “[Youth] Plaintiffs’ mental health injuries” such as their “feelings [of] loss, despair, and anxiety, are cognizable injuries.”[86] Defendants argued that climate change affects everyone, and therefore the injuries are not particularized.[87] The court rejected this argument finding “[c]hildren are uniquely vulnerable to the consequences of climate change, which harms their physical and psychological health and safety, interferes with family and cultural foundations and integrity, and causes economic deprivations.”[88]
Additionally, the court found that the Youth Plaintiffs satisfied the causation and redressability requirements of standing.[89] The Youth Plaintiffs proved causation at trial because Montana state agencies authorized fossil fuel activities.[90] The court found that Montana state agencies have the discretion to decline a permit for a fossil fuel project.[91] It also found that some of the statutes even require state agencies to reject the permit if the fossil fuel project would not be in the best interests of the state or are inconsistent with the state constitution.[92] With each additional ton of GHG emissions, the court reasoned that the Youth Plaintiffs will suffer irreversible damage.[93] Lastly, the Youth Plaintiffs proved redressability because Montana state agencies can alleviate the harmful environmental effects by exercising their discretion.[94] The Youth Plaintiffs sought to impose a duty on Montana and its agencies to develop a remedial plan to reduce statewide GHG emissions.[95] Additionally, the court found it would retain jurisdiction until the defendants fully complied with the court’s orders; and, if necessary appoint a special master to review the remedial plan for efficacy.[96] The court ruled in favor of the Youth Plaintiffs finding the MEPA limitation unconstitutional.[97] Montana’s Attorney General already filed for appeal to the Montana Supreme Court on September 9th, 2023.[98]
Economic damages are obvious damages a court can remedy. However, there might not always be a plaintiff who suffers such damages. In those cases, children can be an ideal plaintiff because of their unique vulnerability to the negative mental effects of climate change.[99] This is a familiar argument from Brown v. Board of Education.[100] Although the Supreme Court later found “psychic satisfaction is not an acceptable Article III remedy because it does not redress a cognizable Article III injury,” this should not stop future climate change litigation in state courts.[101]
Although Steel Co. v. Citizens for a Better Environment did not address the injury-in-fact requirement,[102] the Held v. Montana opinion cited this case to distinguish the mental injuries suffered by the Youth Plaintiffs that are caused by climate change.[103] The court in Held found that the Youth Plaintiffs’ “mental health injuries stemming from the effects of climate change on Montana’s environment, feelings like loss, despair, and anxiety, are cognizable injuries.”[104] This holding might seem surprising, but it actually has a basis in Supreme Court precedent: Brown v. Board of Education.[105]
The court recognized education as “perhaps the most important function of state and local governments” and “it [would be impossible] that any child may reasonably be expected to succeed in life if [they are] denied the opportunity of an education.”[106] The sanction of the law to segregate public schools on the basis of race deprived Black students of the educational and mental development benefits they would receive in a racially integrated school system.[107] To support this holding, the Court cited to then recent research on the effects of segregation on education.[108]
Like Brown v. Board of Education, the court in Held v. Montana relied upon recent research on the psychological effects of climate change to support its holding.[109] Another similarity between Brown and Held is concrete damage. The psychological damages suffered by the Youth Plaintiffs are increasingly severe and irreversible, and disproportionately harm children and youth like the damages suffered by Black children under segregration.[110] This finding by the Held court can influence a change in states with a comparable constitutional provision like Hawai’i.[111]
In Sierra Club v. Hawai'i Tourism Authority, the Hawai’i Supreme Court found that the Sierra Club, an environmental advocacy organization, did not meet the injury in fact requirement.[112] The court reasoned that the marketing plan developed by the Hawai’i Tourism Authority (“HTA”) to increase tourism did not cause an actual or imminent harm because Sierra Club failed to show this would increase the number of visitors to Hawai’i, thus causing harm to the environment.[113] The court denied Sierra Club’s remedy of requiring the HTA to complete an environmental assessment of their marketing plan.[114] Held v. Montana may provide plaintiffs in Hawai’i another opportunity to keep their state accountable regarding their contribution to climate change.
In the original complaint in Juliana, the Plaintiffs sought a declaration “that [the federal] Defendants have violated and are violating Plaintiff’s fundamental constitutional rights to life, liberty, and property by causing dangerous CO2 concentrations in the atmosphere and dangerous government interference with a stable climate system.”[115] The firm that represents the Youth Plaintiffs in Held is the same firm that represents the plaintiff in Juliana: Our Children’s Trust.[116] In Juliana, the firm filed a Notice of Supplemental Authority discussing the impact of Held v. Montana on redressability[117] The court in Held found the Youth Plaintiff’s requests for the court “to order Defendants to develop a remedial plan, to retain jurisdiction over the matter until Defendants complied with the remedial plan, and, if necessary, appoint a special master to assist the Court in reviewing the remedial plan exceeded the Court’s authority under the political question doctrine.”[118] Since the decision in Held, the plaintiff from Juliana has changed their strategy in the remedy they are seeking.[119] Instead they now seek a declaration providing a right to climate system capable of sustaining human life under the Fifth Amendment.[120]
Unlike Montana law, there is no MEPA limitation equivalent within federal law as the National Environmental Policy Act (“NEPA”) requires federal agencies to consider GHG emissions in its environmental assessment and impact statements.[121] If the Ninth Circuit does grant a declaration, how would the court enforce this interpretation of the Fifth Amendment to a “climate system capable of sustaining human life.”[122] Given the federal government’s significant role in allowing oil and gas extraction on federal land,[123] federal courts could interpret the Reasonably Prudent Operator (“RPO”) covenant to require oil and gas companies on federal land to operate their wells in a carbon neutral way.[124] However, the outcome of the Juliana case is uncertain and has already been stuck in litigation for nine years.[125] In the meantime, plaintiffs in states like Pennsylvania, a state where significant oil and gas operations take place,[126] can ask the state court to extend the RPO covenant to require environmental considerations when operating their wells.
The ruling in Held v. Montana serves as a significant role in changing standing jurisprudence. Environmental plaintiff organizations that file suits in states with comparable constitutional provisions to that of Montana’s enjoy a better chance of succeeding in overcoming the hurdle of standing. Although Held does not yet have implications for the federal government, or the remaining states, with enough political pressure hopefully this will change and climate change will receive the attention it deserves.
[1] U.S. Const. art. III, § 2 (“The judicial Power shall extend to all Cases . . . [and] Controversies to which the United States shall be a party.”).
[2] Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992).
[3] Id. at 560.
[4] Id. at 563-71.
[5] See Sierra Club v. Morton, 405 U.S. 727, 733–34 (1972).
[6] Lujan, 504 U.S. at 560 n.1 (“By particularized, we mean that the injury must affect the plaintiff in a personal and individual way.”).
[7] See id. at 564.
[8] Id. at 560 (quoting Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41–42 (1976)).
[9] See id. at 568.
[10] Jan G. Laitos, Standing and Environmental Harm: The Double Paradox, 31 Va. Env’t. L.J. 55, 56–57 (2013).
[11] Id. at 58–59.
[12] Morton, 405 U.S. at 729-30 (fighting the U.S. Forest Service approval of a resort in the Mineral King Valley near Sequoia National Park).
[13] Lujan, 504 U.S. at 558–59 (fighting the Department of Interior changed the interpretation of the ESA to no longer impose obligations on U.S. actions in foreign nations).
[14] Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 87–88 (1998).
[15] Morton, 405 U.S. at 740–41 (“[W]e conclude that the Court of Appeals was correct in its holding that the Sierra Club lacked standing to maintain this action.”); Lujan, 504 U.S. at 578 (1992) (“We hold that respondents lack standing to bring this action.”); Citizens for a Better Env't, 523 U.S. at 109–10 (“[W]e must conclude that respondent lacks standing to maintain this suit.”).
[16] See Laitos, supra note 10, at 61.
[17] Friends of the Earth, Inc. v. Laidlaw Env’t. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000) (“[T]he plaintiff organizations failed to show that any of their members had sustained or faced the threat of any ‘injury in fact’ from Laidlaw’s activities.”).
[18] Haw. Const. art. XI, § 9 (“Each person has the right to a clean and healthful environment . . . . Any person may enforce this right against any party, public or private . . . .”).
[19] Mass. Const. art. XCVII (“The people shall have the right to clean air and water, . . . and the natural, scenic, historic, and esthetic qualities of their environment . . . .”).
[20] Ill. Const. art. XI, § 2 (“Each person has the right to a healthful environment. Each person may enforce this right against any party, governmental or private . . . .”).
[21] Pa. Const. art. I, § 27 (“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.”).
[22] N.Y. Const. art. I, § 19 (“Each person shall have a right to clean air and water, and a healthful environment.”).
[23] Held v. Montana, No. CDV-2020-307, 2023 BL 278662, at *1 (Mont. 1st Dist. Ct. Aug. 14, 2023); Mont. Const. Art. IX § 1(1) (“The state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations.”).
[24] Held, 2023 BL 278662, at *2.
[25] Mont. Code Ann. § 90-4-1001(1)(c)-(g) (repealed 2023).
[26] Held, 2023 BL 278662, at *3.
[27] Id. at *4.
[28] This does not meet the redressability requirement because the issue is now moot, meaning it is no longer an issue. See supra Introduction.
[29] Mont. Code Ann. § 75-1-201(2)(a) (2021).
[30] MEIC v. DEQ, No. DV-56-2021-1307, at 1, 32 (Mont. 13th Dist. Ct. Apr. 6, 2023) https://earthjustice.org/wp-content/uploads/2023/04/laurel-mepa-order.pdf [https://perma.cc/29DV-XXTP] (holding the Montana Department of Environmental Quality’s failure to analyze the issue of greenhouse gas emissions violated MEPA).
[31] Held, 2023 BL 278662, at *7–8.
[32] Mont. Code Ann. § 75-1-201(2)(a) (2023).
[33] Held, 2023 BL 278662, at *36.
[34] Id.
[35] Defendants’ Brief in Support of Motion for Summary Judgment at 12–13, Held v. Montana, No. CDV-2020-307 (Mont. 1st Dist. Ct. Aug. 14, 2023), https://climatecasechart.com/wp-content/uploads/case-documents/2023/20230203_docket-CDV-2020-307_motion-for-summary-judgment-1.pdf [https://perma.cc/4L84-KR9M].
[36] Held, 2023 BL 278662, at *5.
[37] Id. at *16, 23 (“Rikki [Held] [(18 years old at the time of the filing the complaint)] has experienced climate change-related harms to herself and her family ranch, including harms from flooding, severe storms, wildfires, and drought.”).
[38] Id. at *25–26 (“Kian is a passionate fly fisher and has fished with his dad since he was about four years old. Kian hopes he will be able to preserve this tradition and fish for the next fifty years or more. The warmer water temperatures, lower oxygen levels, and declining instream flows due to climate disruption are harming Montana’s rivers and fish.”).
[39] Id. at *14–15, 27–56 (“The heat has caused [Georgianna Fischer] to feel dizzy, nauseous, generally unwell, and has caused persistent nosebleeds that led Georgi to seek medical attention . . .” and “Olivia [Vesovich] has exercise-induced asthma and is therefore particularly vulnerable to smoke-filled air. In smoky conditions, Olivia feels she is suffocating if she spends more than thirty minutes outdoors.”).
[40] Id. at *27–28 (“Grace experiences psychological harms, is distressed from day-to-day climate conditions, and is anxious about climate change . . . ” and “Olivia is affected emotionally and psychologically by climate change, and experiences bouts of depression when she thinks about the dire projections of the future. Olivia would like to have children of her own, but she questions whether this is an option in a world devastated by the effects of climate change.”).
[41] Id. at *2.
[42] Id. at *2–3
[43] Id.at *3.
[44] Id. at *22.
[45] Id. at *4–5.
[46] Id. at *8 (Dr. Running earned the Nobel Peace Prize for his authorship of a chapter in the 4th Assessment Report of the Intergovernmental Panel on Climate Change).
[47] Id. at *8–9.
[48] Id. at *12–13.
[49] Id. at *13.
[50] Id. at *13–14.
[51] Id. at *5.
[52] Id. at *32.
[53] Id.; Micah Drew, State Employees, Economist Testify for State as Climate Trial Winds Down, Montana Free Press (June 20, 2023) https://montanafreepress.org/2023/06/20/state-employees-economist-testify-for-state-as-climate-trial-winds-down/ [https://perma.cc/G2EV-9ZYW] (crossing Dr. Anderson revealed he could not remember where he pulled his greenhouse gas statistics, numerous errors in his expert report, his $500 per hour rate).
[54] Citizens for a Better Env't, 523 U.S. at 107.
[55] Held, 2023 BL 278662, at *32.
[56] Citizens for a Better Env't, 523 U.S. at 86.
[57] Id. at 86–87.
[58] Id. at 88.
[59] Id. at 87.
[60] Id. at 88, 104–05.
[61] Id. at 88.
[62] Id. at 88–89.
[63] Id. at 105 (“And we need not reach that question in the present case because, assuming injury in fact, the complaint fails the third test of standing, redressability.”).
[64] Id. (“(1) [A] declaratory judgment that petitioner violated EPCRA; (2) authorization to inspect periodically petitioner’s facility and records (with costs borne by petitioner); (3) an order requiring petitioner to provide respondent copies of all compliance reports submitted to the EPA; (4) an order requiring petitioner to pay civil penalties of $25,000 per day for each violation . . . ; (5) an award of all respondent’s costs, in connection with the investigation and prosecution of this matter, including reasonable attorney and expert witness fees . . . ; and (6) any such further relief as the court deems appropriate.”) (internal quotations omitted).
[65] Id. at 109–10.
[66] Id. at 106.
[67] Id.
[68] Id. at 107.
[69] Id. (emphasis added).
[70] Juliana v. United States (Juliana I), 947 F.3d 1159, 1165 (9th Cir. 2020).
[71] Id.
[72] Id. at 1164–65. “The complaint [also] asserts violation of: . . . the plaintiff’s rights under the Fifth Amendment to equal protection of the law; . . . the plaintiff’s rights under the Ninth Amendment; . . . and the public trust doctrine.”
[73] Id.
[74] Id.
[75] Id. at 1171 (“But it is beyond the power of an Article III court to order, design, supervise, or implement the plaintiffs' requested remedial plan. As the opinions of their experts make plain, any effective plan would necessarily require a host of complex policy decisions entrusted, for better or worse, to the wisdom and discretion of the executive and legislative branches.”).
[76] Id. at 1170–71 (“Indeed, the plaintiffs’ experts make plain that reducing the global consequences of climate change demands much more than cessation of the government’s promotion of fossil fuels. Rather, these experts opine that such a result calls for no less than a fundamental transformation of this country’s energy system, if not that of the industrialized world.”).
[77] Id.
[78] Id. at 1175.
[79] Juliana v. United States (Juliana II), No. 6:15-cv-01517-AA, 2023 U.S. Dist. LEXIS 95411, at *27–28 (D. Or. June 1, 2023).
[80] Defendant’s Brief in Support of Motion to Dismiss Under M. R. Civ. P. 12(b)(1), 12(b)(6) &12(h)(3) at 7, Held v. Montana, No. CDV-2020-307 (Mont. 1st Dist. Ct. Aug. 14, 2023) https://climatecasechart.com/wp-content/uploads/case-documents/2020/20200424_docket-CDV-2020-307_motion-to-dismiss-1.pdf [https://perma.cc/7U4Q-RPSA]; Heffernan v. Missoula City Council, 255 P.3d 80, 91 (Mont. 2011).
[81] Bullock v. Fox, 435 P.3d 1187, 1194 (Mont. 2019).
[82] Hollingsworth v. Perry, 570 U.S. 693, 715 (2013).
[83] ASARCO Inc. v. Kadish, 490 U.S. 605, 617 (1989).
[84] Held v. Montana, No. CDV-2020-307, 2023 BL 278662, at *49–50 (Mont. 1st Dist. Ct. Aug. 14, 2023).
[85] Id. at 43.
[86] Id.
[87] Defendants’ Brief in Support of Motion for Summary Judgment at 4, supra note 35 (“However, if [Youth] Plaintiff’s claims are true, every single member of the general public suffers those very same injuries.”). But see Defendants’ Motion to Dismiss, supra note 80, at 7–14 (discussing how the Youth Plaintiffs fail to establish causation and redressability but does not discuss injury in fact at all).
[88] Held, 2023 BL 278662, at *14.
[89] Id. at *43–44.
[90] Id.
[91] See id. at *37–39, 44 (providing examples of coal mines and other fossil fuel projects Montana agencies approved between 2011 and 2022 without considering GHG emissions in their environmental assessments).
[92] Id. at *44 (“75-20-301 (DEQ can only approve permits for Major Facility Siting Act facilities after considering numerous discretionary factors, including environmental impacts and public health, welfare, and safety); § 77-3-301 (state lands ‘may’ be leased for coal if ‘in the best interests of the state’); § 77-3-401 (state lands ‘may’ be leased for oil and gas if consistent with the Constitution.”)).
[93] Id. at *43.
[94] Id. at *44.
[95] Id. at *1.
[96] Id. at *1–2 (finding this remedy was beyond the court’s power under the political question doctrine).
[97] Id. at *49.
[98] Micah Drew, State of Montana Appeals Landmark Climate Change Decision in Youth-Led Case, Flathead Beacon (Oct. 2, 2023), https://flatheadbeacon.com/2023/10/02/state-of-montana-appeals-landmark-climate-change-decision-in-youth-led-case/ [https://perma.cc/5BAH-EYYA] (“Emily Flowers, a spokesperson for the Attorney General’s office, called the initial ruling ‘absurd,’ and the trial a ‘tax-payer funded publicity stunt.’”).
[99] Held, 2023 BL 278662, at *13–14.
[100] Brown v. Bd. of Educ., 347 U.S. 483, 494 (1954) (“Such considerations apply with added force to children in grade and high schools. To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”).
[101] Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 107 (1998).
[102] Id. at 105 (“We have not had occasion to decide whether being deprived of information that is supposed to be disclosed under EPRCRA—or at least being deprived of it when one has a particular plan for its use—is a concrete injury in fact that satisfies Article III. . . . And we need not reach that question in the present case because, assuming injury in fact, the complaint fails the third test of standing, redressability”).
[103] Held, 2023 BL 278662, at *43.
[104] Id.
[105] Brown, 347 U.S. at 494 (“Such considerations apply with added force to children in grade and high schools. To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”).
[106] Id. at 493.
[107] Id.
[108] Id. at 494 n.11 (citing K. B. Clark, Effect of Prejudice and Discrimination on Personality Development (Midcentury White House Conference on Children and Youth, 1950); H.L. Witmer and R. Kotinsky, Personality in the Making (1952), c. VI; Max Deutscher and Isidor Chein, The Psychological Effects of Enforced Segregation: A Survey of Social Science Opinion, 26 J. Psych. 259 (1948); Isidor Chein, What are the Psychological Effects of Segregation Under Conditions of Equal Facilities?, 3 Int’l. J. Op. and Attitude Rsch. 229 (1949); Theodore Brameld, Educational Costs, in Discrimination and National Welfare 44-48 (MacIver, ed., 1949); E. Franklin Frazier, The Negro in the United States 674-681 (1949). And see generally Gunnar Myrdal, An American Dilemma (1944)).
[109] Held v. Montana, No. CDV-2020-307, 2023 BL 278662, at *13 (Mont. 1st Dist. Ct. Aug. 14, 2023) (“In 2013, Dr. Van Susteren worked with Dr. James Hansen and other experts on a paper, Assessing ‘Dangerous Climate Change’: Required Reductions of Carbon Emissions to Protect Young People, Future Generations and Nature. . . . Dr. [Lise] Van Susteren provided expert testimony on the . . . psychological harms caused by the MEPA Limitation, and the availability of remedies to alleviate Plaintiffs’ psychological injuries. Dr. Van Susteren is a qualified expert, and the Court found her testimony credible.”); James Hansen, Pushker Kharecha, Makiko Sato, Valerie Masson-Delmotte, Frank Ackerman, David J. Beerling, Paul J. Hearty, Ove Hoegh-Guldberg, Shi-Ling Hsu, Camille Parmesan, Johan Rockstrom, Eelco J. Rohling, Jeffrey Sachs, Pete Smith, Konrad Steffen, Lise Van Susteren, Karina von Schuckmann & James C. Zachos, Assessing “Dangerous Climate Change”: Required Reduction of Carbon Emissions to Protect Young, Future Generations and Nature, 8 PLOS 12, 8 (2013) https://journals.plos.org/plosone/article?id=10.1371/journal.pone.0081648#pone.0081648-Fritze1 [https://perma.cc/54NQ-ETCX] (“Growing awareness of the consequences of human-caused climate change triggers anxiety and feelings of helplessness. Children, already susceptible to age-related insecurities, face additional destabilizing insecurities from questions about how they will cope with future climate change. Exposure to media ensures that children cannot escape hearing that their future and that of other species is at stake, and that the window of opportunity to avoid dramatic climate impacts is closing.”).
[110] Held, 2023 BL 278662, at *43.
[111] Haw. Const. art. XI, § 9.
[112] Sierra Club v. Hawai’i Tourism Auth., 59 P.3d 877, 885–86 (Haw. 2002).
[113] Id. at 886.
[114] Id. at 889–900.
[115] Complaint for Declaratory and Injunctive Relief at 94, Jullian II, 217 F. Supp. 3d 1224 (D. Or. 2016) rev’d and remanded, 947 F.3d 1159 (9th Cir. 2020) (No. 6:15-cv-01517-TC), 2015 WL 4747094.
[116] Montana Youth Win, Our Children’s Trust: Held v. Montana, https://www.ourchildrenstrust.org/montana [https://perma.cc/WG6D-LGA4] (last visited Dec. 19, 2024); Youth v. Gov Juliana v. U.S., Our Children’s Trust, https://www.ourchildrenstrust.org/juliana-v-us [https://perma.cc/CGE9-XDN7] (last visited Dec. 19, 2024).
[117] Plaintiff’s Notice of Supplemental Authority, Held v. Montana, No. CDV-2020-307 (Mont. 1st Dist. Ct. Aug. 14, 2023), https://climatecasechart.com/wp-content/uploads/case-documents/2023/20230821_docket-615-cv-01517_notice.pdf [https://perma.cc/4CLX-L3CZ].
[118] Held v. Montana, No. CDV-2020-307, 2023 BL 278662, at *1–2 (Mont. 1st Dist. Ct. Aug. 14, 2023);
[119] Juliana II, No. 6:15-cv-01517-AA, 2023 U.S. Dist. LEXIS 95411, at *27 (D. Or. June 1, 2023) (“The Declaratory Judgment Act authorizes this Court's determination in its embrace of both constitutional and prudential concerns where the text is deliberately cast in terms of permissive, rather than mandatory, authority. The Act gives federal courts competence to make a declaration of rights.”) (internal quotations omitted) (citations omitted).
[120]Id. at *27–28.
[121] 42 U.S.C. § 4321 et seq.; 40 C.F.R. § 1508.1(i)(3) (defining cumulative effects); Biden-Harris Administration Proposes Reforms to Modernize Environmental Reviews, Accelerate America’s Clean Energy Future, and Strengthen Public Input, White House (July 28, 2023), https://www.whitehouse.gov/ceq/news-updates/2023/07/28/biden-harris-administration-proposes-reforms-to-modernize-environmental-reviews-accelerate-americas-clean-energy-future-and-strengthen-public-input/ [https://perma.cc/T26T-TZV3] (“The proposed rule clarifies that agencies should consider climate change effects in environmental reviews and encourages identification of reasonable alternatives that will mitigate climate impacts so that we build smart from the start on firm legal footing.”).
[122] Juliana I, 947 F.3d F.3d 1159, 1165 (9th Cir. 2020).
[123] About the BLM Oil and Gas Program, U.S. Department of the Interior: Bureau of Land Management, https://www.blm.gov/programs/energy-and-minerals/oil-and-gas/about [https://perma.cc/TE4R-S5KH] (last visit Nov. 23, 2024).
[124] See Amoco Prod. Co. v. Alexander, 622 S.W.2d 563, 568 (Tex. 1981) (“The reasonably prudent operator concept is an essential part of every implied covenant. Every claim of improper operation by [landowner] against a [an oil and gas company] should be tested against the general duty of the [oil and gas company] to conduct operations as a reasonably prudent operator in order to carry out the purposes of the oil and gas lease.”); See David E. Pierce, The Impact of Landowner/Lessor Environmental Risk on Oil and Gas Lessee Rights and Obligations, 31 Tulsa L. Rev. 731, 731–33 (1996) (stating that anyone related to the contamination of land including landowners may be liable for the cleanup).
[125] See Complaint for Declaratory and Injunctive Relief, Juliana v. United States 217 F.Supp.3d 1224 (D. Or. 2016) rev’d and remanded, 947 F.3d 1159 (9th Cir. 2020) (No. 6:15-cv-01517-TC), 2015 WL 4747094.
[126] Pennsylvania State Energy Profile, U.S. Energy Info. Admin., https://www.eia.gov/state/print.php?sid=PA [https://perma.cc/GRA5-NUZD] (last visited Nov. 23, 2024).