In 2020, sixteen Montana youth sued the State of Montana and related public entities. Among other things, the proceeding challenged fossil fuel-based provisions of Montana legislation, alleging that these provisions violated rights guaranteed by the Montana Constitution.

Following a trial in June 2023, a Montana state court has now ruled in favour of the plaintiffs, finding that they have "a fundamental constitutional right to a clean and healthful environment, which includes climate as part of the environmental life-support system," and striking down state legislation incompatible with that right.

The court accepted the "overwhelming scientific consensus that Earth is warming as a direct result of human [greenhouse gas] emissions, primarily from the burning of fossil fuels," and that climate change is "impacting, degrading, and depleting Montana's environment and natural resources." The court was also satisfied that children are "uniquely vulnerable to the consequences of climate change," including with respect to their physical and psychological health, family and cultural integrity, and economic well-being.

At issue in the action was state legislation that precluded the Montana government from considering or disclosing greenhouse-gas and climate-change impacts when conducting environmental reviews. The plaintiffs argued that these provisions were invalid under the Montana Constitution, which provides that "[a]ll persons [have] the right to a clean and healthful environment," and that "[t]he state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations." The court was satisfied that, under these sections, Montana youth had a "fundamental right to a clean and healthful environment" — and also that Montana had an "affirmative duty" under its Constitution to "take active steps to realize" such a right.

Consequently, the court found that statutory provisions prohibiting a consideration of climate change and the effects of greenhouse-gas emissions were unconstitutional.

This ruling can be contrasted with that of the Ontario Superior Court of Justice earlier this year in Mathur v. His Majesty the King in Right of Ontario, 2023 ONSC 2316, the subject of a previous Fasken bulletin, titled Ontario Superior Court Dismisses Climate-Related Charter Application. In Mathur, seven young Ontarians sought declarations of constitutional invalidity in relation to Ontario legislation, but the case was dismissed. Among other things, the court was not satisfied that, under the current state of the law, the Ontario government had a positive obligation under the Charter to remedy inequalities arising from climate change.

Of note, the Montana state court's ruling was shortly followed by a report of the United Nations Committee on the Rights of the Child, which concluded that children have "the right to a clean, healthy and sustainable environment," and that states must "ensure a clean, healthy and sustainable environment in order to respect, protect and fulfil children's rights," including by "regulating business enterprises". The Committee's report also noted the importance of "child-friendly access to justice" to the empowerment of children in becoming "agents of their own destiny."

As a result, we can expect more litigation globally by young people in relation to climate change.

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