The following article, written by student reporters, is part of a series of reflections from the Climate Constitutionalism Conference, hosted by Elisabeth Haub School of Law at Pace University and Widener University Delaware Law School, and co-chaired by Distinguished Professor Katy Kuh (Haub Law) and Distinguished Professor James R. May (Delaware Law), on March 29, 2024. The event brought together legal scholars, activists, and students for a series of discussions on major environmental constitutional issues. Visit the GreenLaw homepage for links to other articles in the series.
Introduction and The Process
This semester, classmates Austin Anderson and Jack Garvey of Widener University Delaware Law School, were tasked with drafting an amicus curiae brief to the Montana Supreme Court on behalf of Youth Plaintiffs in Held v. Montana. The brief was drafted with the guidance of Professor James May and assistance from Montana local counsel, as well as other amici who supported their arguments. The brief argues that Montana’s constitutional right to a clean and healthful environment and to dignity incorporate the right to a life-sustaining climate.
Their briefing process began with research on the Montana Supreme Court civil procedure. The Supreme Court of Montana has specific rules about font size, word count, exceptions to the word count, and most prominently, citation style. Once the rules of the court were properly understood, Austin and Jack dove into the case. Their first step was to read Judge Seeley’s district court opinion, which ruled in favor of the plaintiffs and outlined two novel areas of law in relation to climate action: climate rights and dignity law.
Austin Anderson drafted the first argument:
After reading what the Montana Constitution guarantees under its “right to a clean and healthful environment” protections, Austin moved on to locating the proper controlling case law. Judge Seeley’s opinion offered some guidance on where to look, but it was imperative that thorough research was done to develop a proper understanding of Montana constitutional and environmental law. Once obtained, Austin used Montana case law from the Supreme Court regarding these decisions and argued that there is a link between a life-sustaining climate and a “clean and healthful environment.” The arguments made are based on a constitutional analysis and conclude that the right to a life-sustaining climate exists.
Additionally, Austin researched cases from other jurisdictions to see if they also incorporate this right, which ultimately led to him to the jurisdiction of Hawaii. They, too, made the connection between a life-sustaining climate and the protection of its resources for future generations. This finding became a useful piece of persuasive authority to help further the argument that the Montana Constitution incorporates the right to a life-sustaining climate.
Jack Garvey wrote the second argument:
To argue that Montana’s constitutional right to dignity incorporates the right to a life sustaining climate, Jack had to begin where dignity first entered the scene; the 1976 Montana Constitutional Convention’s Bill of Rights Proposal. This proposal was a strong starting point in crafting the argument from the perspective of the Framers. The next steps involved looking at Montana case law, but since this was a novel issue, creativity was key in building an argument around dignity and its relation to climate action. Looking to other jurisdictions, Jack found that Puerto Rico similarly has the right to dignity enshrined in their constitution and their case law presented similar issues. These multi-jurisdictional cases in tandem with those from the United Nations, helped Jack form his argument that the right to dignity holds a place in climate rights.
Below is Austin and Jack’s summary of their argument and argument sections taken from their brief. They vehemently push for a verdict in favor of the plaintiffs in the hope of setting a positive precedent for climate rights-based action.
Summary of the Argument
The District Court correctly held that Montana’s constitutional right to a clean and healthful environment and to dignity incorporate the right to a life- sustaining climate. Montana’s constitution is unique in both providing a right to a healthful environment and to human dignity.
First, text and controlling cases show that the District Court correctly held the right to a clean and healthful environment incorporates the right to a life- sustaining climate. The Montana Constitution provides that all persons have the right to a “clean and healthful environment,” and that “the legislature shall provide adequate remedies for the protection of the environmental life support system from degradation and provide adequate remedies to prevent unreasonable depletion and degradation of natural resources.” The Montana Supreme Court has ruled that the right to a healthful environment requires a climate capable of sustaining a life support system.
Second, text and controlling and persuasive caselaw shows that the District Court correctly held that the MEPA Limitation and Mont. Code. Ann. § 75-l- 201(6)(a)(ii) implicates Plaintiffs’ right to dignity under Article II, Sec. 4 of the Montana Constitution. The Supreme Court of Montana has confirmed that the Montana Constitution establishes the inviolable. The right to dignity has also been used to address climate action in Puerto Rico and countries such as Nigeria, Pakistan, and Germany. Thus, the District Court correctly ruled that the right to dignity incorporates a right to a life-sustaining climate.
Argument
Montana’s Right to a Clean and Healthful Environment Incorporates the Right to a Life-Sustaining Climate.
There is textual and controlling support for the District Court’s determination that the “clean and healthful environment” and “environmental life support system” provisions of the Montana Constitution afford life-sustaining climate.
The Constitutional Provisions in Article II, Section 3 and Article IX, Section 1 Incorporate the Right to a Life-Sustaining Climate
The Montana Constitution guarantees the right to a “clean and healthful environment” in two places. The right to a “clean and healthful environment” is an inalienable right as stated by the Constitution. Furthermore, the Montana Constitution provides that the environment shall be maintained and improved for current and future generations. Lastly, the Constitution provides that there shall be remedies to protect the environment’s life support system and prevent unreasonable destruction of this state’s natural resources. The language of the Constitution draws a clear line from a healthful environment to a climate capable of sustaining human life.
Montana Case Law Incorporates the Right to a Life-Sustaining Climate
The Supreme Court of Montana held in Montana Environmental Information Center v. Montana Department of Environmental Quality that Article II, Section 3 and Article IX, Section 1 of the Montana Constitution are to be read together. The “environmental life support system” includes the air, water, and land, and is meant to be “all-encompassing.” The “clean and healthful environment” provisions are meant to be preventative in nature. There is no benefit to require monetary damages if the damage to the environment is irreversible. The intent was to make the provisions as strong as possible.
The intent of the Framers of the “clean and healthful environment” provisions intended for the “environmental life-support system” to be comprehensive. If the climate is allowed to be degraded, then it would result in the destruction of Montana’s natural resources, worsen the health of its citizens, and frustrate the framer’s intent. The uncontested factual findings from the District Court show that GHG pollution and climate impacts are already significantly degrading Montana’s environment and natural resources.
The Framers took these provisions seriously. In Park County Environmental Council v. Montana Department of Environmental Quality, the court determined that the Framers intended for these provisions to be the strongest of any state constitution. This court also held that Article IX, Sec. 1 of the Montana Constitution protects future generations’ environmental rights while also protecting the “environmental life-support system” from unreasonable destruction. Moreover, the citizens of Montana have a right to be constitutionally free of environmental harm that contravene the constitution. The purpose of the forward-looking language the convention agreed upon is for the protection of future generations.
Applying Park County here, the Framers intended to create the strongest environmental protections for current and future generations. The way that maximizes fealty to the Framers’ intent is to ensure that there is no “unreasonable depletion and degradation of the state’s natural resources,” and incorporate the right to a life-sustaining climate in the right to a clean and healthful environment. Accordingly, the District Court order is consistent with Montana’s constitutional jurisprudence and the intent of the Framers.
Other Jurisdictions
The Hawaii Constitution guarantees a right of conservation and protection for its natural resources for present and future generations. It requires that the state protect its natural resources for all people, present and future. The constitution prevents the state from harming the public interest. For all natural resources to be conserved, CO2 levels must remain below 350ppm. The only way to achieve that goal is a life-sustaining climate system. Hawaii’s protection for natural resources is preventative in nature.
Thus, the District Court correctly held that the MEPA limitation violated the plaintiffs’ right to a clean and healthful environment, which includes Montana’s climate.
MT’s Constitutional Right to Dignity Incorporates a Right to a Life-Sustaining Climate
The District Court correctly held that the MEPA Limitation and Mont. Code Ann. § 75-1-201(6)(a)(ii) are unconstitutional. The Plaintiffs’ constitutional claims hinge on whether the MEPA Limitation and Mont. Code Ann. § 75-1-201(6)(a)(ii) caused unconstitutional degradation of Montana’s environment and natural resources violating Article II, Sec. 3, and Article IX, Sec. 1.
The Montana constitution recognizes the right to human dignity and the Court correctly held the right to dignity incorporates a right to a stable environment, implicated by their ruling on Article II, Sec. 3, and Article IX Sec. 1. The Montana Constitution, Montana case law, and jurisdictions in the United States and abroad support the District Court’s conclusion.
Article II Section 4 of the Montana Constitution and the Right to a Life-Sustaining Climate
Montana’s Constitution protects human dignity. Dignity is inherent, equal, and inalienable. The 1972 Montana Constitutional Convention Delegates intended the right to dignity to protect future generations. They wanted Montanans to enjoy the natural beauty of Montana. The infringement of dignity inhibits the liberties enumerated in Meyer v. Nebraska which includes entering contracts, acquiring an education, to marry, to raise a family and home, worship their religion, and enjoy many other privileges in the pursuit of happiness
Inherent to Montana’s right to dignity is the right to a stable environment. An unstable environment restricts the ability of Americans to live out the freedoms proscribed to them. The effects of climate change infringe upon the individual dignity of the plaintiffs.
Montana Case Law and the Right to Dignity
The Supreme Court of Montana has held Article II, Sec. 4, is a fundamental, enforceable, and inviolable right. In Walker v. State, the plaintiff alleged he was subject to cruel and unusual punishment while incarcerated by the State of Montana violating his right to dignity. The court agreed with Mr. Walker.
In Armstrong v. State, the Montana Supreme Court ruled that a statute prohibiting physicians from performing abortions was unconstitutional. The right to dignity was implicated during the court’s analysis. The court acknowledged the responsibility of protecting the right to privacy and dignity is to respect individual choices and practices. That responsibility does not require government to degrade that individual dignity.
In Stand Up Montana v. Missoula County Public School, plaintiffs claimed a school district’s mandatory masking policies during the Covid-19 pandemic violated the right to dignity. The court disagreed with the plaintiffs because, compared to Walker, the plaintiffs were not deprived of any basic necessities. While the court disagreed with the plaintiffs, it nevertheless confirmed the right to dignity as an inviolable right.
Allowing the continued degradation and depletion of Montana’s environment is akin to disregarding the innate dignity of those who live in and enjoy that environment. As the effects of climate change persist, the living conditions of the Plaintiffs will continue to erode. Of course, the Constitutional Delegates’ intention was to not only to preserve the beauty of Montana but to enhance that beauty, which is wholly in the welfare of the plaintiffs.
Puerto Rico Recognizes the Inviolable Right to Dignity that Incorporates a Right to a Life-Sustaining Climate
Montana’s constitutional protections for dignity owes its origins in part to the Constitution of Puerto Rico. The Montana Constitutional Delegates borrowed the same language for the Montana Constitution.
In Puerto Rico, the right to dignity is used to protect religious freedoms. For example, in Hernández Lozada v. Tirado Flecha, a Jehovah’s Witnesses who was in a serious car accident, refused a blood transfusion. The District Court however ordered the blood transfusion. The boy’s estate sued claiming the ordered blood transfusion denied the deceased’s right to dignity. The Puerto Rico Supreme Court agreed. The concurring opinion emphasizes that dignity must be protected and respected.
The Right to Dignity: A Globally Recognized Fundamental Right That Includes the Right to a Life-Sustaining Climate
In 1945 the United Nations Charter established that dignity is a universal and inviolable right. Dignity was further engrained into the global stage under the United Nation’s Universal Declaration of Human Rights.
At a global level, the right to dignity includes the right to a stable environment. The Constitution of the Federal Republic of Nigeria protects the fundamental rights to life and dignity. In 2005 the Federal High Court found the rights to life and dignity include the right to a healthy environment.
In Gbemre, the petitioner argued that Shell Petroleum’s gas flaring in the Niger Delta violated his rights to life and dignity. Shell’s activities severely harmed Gbemre’s community and environment. The court held that the right to life and dignity included the right to live in a life-sustaining climate
The Lahore High Court in Pakistan used Article 14 of their Constitution to address climate change. In Asghar Leghari v. Federation of Pakistan, the petitioner urged Pakistan to adopt more concrete strategies to combat the threat of climate change. The court used the right to dignity to establish the Climate Change Commission (“CCC”), tasked with finding ways to steer Pakistan towards climate resilient development. Finding that the CCC accomplished nearly 67% of its priority items, the Court dissolved the CCC in 2018. Now, the Standing Committee on Climate Change acts as a link between the Court and the Executive to continue sustainable development and to protect the fundamental rights of the people of Pakistan.
Similarly, in Neubauer et al., v. Germany, the German Constitutional Court in 2021 found that the Federal Climate Change Act (the “Act”), violates the right to dignity recognized by the German Basic Law (the Constitution of Germany). The Court encouraged future legislation to be climate centered.
Held v. Montana is similar to Gbemre, Asghar Leghari, and Neubauer in that climate change has had real effects on their respective communities. The courts in Nigeria, Pakistan, and Germany, all recognized that their respective constitutional rights to dignity support a constitutional claim for climate action.
Thus, the District Court correctly held that a clean and healthful environment is necessary to protect Montana’s Article II right to dignity, which also incorporates a right to a life-sustaining climate. The Supreme Court should affirm the District Court’s decision.
CONCLUSION
For all the above reasons, the Supreme Court should affirm the District Court’s decision in full, including the conclusion that the Montana Constitution protects the right to a life-sustaining climate.