Paul Bubbosh
David Bowie has this line from Changes, made popular in the epigraph from the film The Breakfast Club: “And these children that you spit on/As they try to change their worlds/Are immune to your consultations/They’re quite aware of what they’re going through.” It sums up teen angst for all times, but there is a line immediately preceding this one that is relevant here.
“I watch the ripples change their size/But never leave the stream of warm impermanence and/So the days float through my eyes/But still the days seem the same.”
This line best captures the state of climate change law. As plaintiffs try one legal theory after another to stem the impending climate changes confronting us, a case from Montanna offers a glimmer of hope.
In April 2023, Montana passed a law that revised its state environmental policy act (SEPA). SEPAs typically mirror the National Environmental Policy Act, which was enacted in 1970, and requires that the government examine environmental impacts and alternatives of proposed projects. The purpose is to ensure that the government is fully aware of potential environmental impacts prior to its final decision on the project (often referred to as a ‘stop-and-think’ law). The law is entirely procedural, which makes what Montana did next so puzzling. In House Bill 971, Montana inserted a provision in its SEPA that made it unlawful to evaluate “greenhouse gas emissions and corresponding impacts to the climate in the state or beyond the state’s borders.” Yes, you read that correctly. The law requires that you identify and consider the environmental impacts, but not those related to climate change.
This state law did not sit well with 16 Montana kids who promptly sued the state. In Held v Montana, the plaintiffs challenged the state law. There is a certain giddy excitement about kids participating in a legal drama about their future, akin to that feeling when we first saw Greta Thunberg challenge heads of state. Yet, kids suing the government to protect their future from climate impacts is not new. In 2015, in the case of Julianna v United States, a group of young plaintiffs brough a federal case against the U.S. Government. In Julianna, the plaintiffs brought a claim of constitutional violation of the right to life, liberty, and property (Fifth and Fourteenth Amendments, U.S. Constitution). The theory in Julianna was that the federal government, as the state’s patron for all citizens, is entrusted to protect public goods such as our natural resources and environment, and thus, the U.S. Congress must protect these kids from climate change by reducing fossil fuel emission. The case stirred up a lot of excitement—60 Minutes did a piece on it—but the Ninth Circuit Court of Appeals rejected the case for lack of standing. By “standing,” this means the case did not meet the threshold for judicial review. In a split 2-1 decision, the majority wrote: “Reluctantly, we conclude that such relief is beyond our constitutional power. Rather, the plaintiffs’ impressive case for redress must be presented to the political branches of government.” In other words, the court felt that Congress was the appropriate body to deal with climate change. Good luck with that.
The Held case differs from Julianna in that the plaintiffs claim a violation of the state’s constitution. In 1972, Montana inserted this language into its state constitution: “The state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations.” The Held plaintiffs raise the claim that their state constitutional rights have been violated by House Bill 971, and the district court judge agreed. The state has appealed. It seems hard to imagine not including climate change impacts in a state environmental review, especially when the state constitution requires safeguarding the environment for present and future generations.
Montana’s state motto is “Gold and Silver,” a recognition of the value that mining has brought the state since it joined the union in 1889. If you have watched any episodes of Yellowstone, you know this is a classic battle between an old way of life and a new one. Ranchers, miners, and fossil fuel companies have made Montana what it is today. But Montana’s future, like that of all of us, is in jeopardy if it ignores the realities of climate change emissions and their impact on our land and health. In Held, the state argued that including an analysis of climate change is meaningless because Montana’s contribution to this issue is miniscule. Montana is correct—its greenhouse gases are, indeed, a ‘drop in the bucket.’ Interestingly, this was the same argument used by other recalcitrant states in the landmark Supreme Court case of Massachusetts V. EPA (2007). The Supreme Court rejected this argument by finding that the government has a legal responsibility to at least try to slow or reduce carbon dioxide emissions from vehicles. My hope is that Montana’s courts will follow this same rationale and confirm the lower court’s ruling.
As mentioned earlier, a state environmental policy act is a procedural law. If the Held case is upheld on appeal, then Montana must consider climate change in environmental impact statements (EIS). In practice this means that the EIS process will likely take longer to complete and cost more money. Legal challenges to EISs are common. For example, if Montana’s Department of Environmental Quality fails to adequately consider climate change impacts or ignores clear and convincing evidence of climate change impacts in its final decision, the courts will likely reject the EIS. Due to the costs and delays, many projects are eventually cancelled (see Keystone XL pipeline). For environmentalists that want to stop fossil fuel projects, this may sound like an effective strategy. But keep in mind this same playbook can be used by others to halt renewable energy and other “green” projects. An environmental and clean energy strategy reliant on procedural legal challenges is not an effective policy approach to address climate change.
We tend to think that the courts are the best means to resolve our challenges. While legal decisions are designed to resolve cases and controversies, they are not as effective in changing behavior. For example, in The Hollow Hope, Gerald N Rosenberg writes that in the decade following what is arguably one of the most famous cases in U.S. history—Brown v Board of Education (1954)—less than 2 percent of Southern schools were desegregated by 1964, although the Supreme Court found that separating children in public schools on the basis of race was unconstitutional. Rosenberg finds that it was not until Congress passed the Civil Rights Act of 1964 and linked federal funds for schools based on desegregation status did we then achieve a 90 percent desegregation rate for schools in the Southern States. It took 10 years (1964 to 1974) to accomplish this, and it demonstrates that the ‘power of the purse’ served as a more effective tool than a Supreme Court decision.
In similar vein, the Biden Administration shifted its focus for climate change policy to an industrial policy via the Inflation Reduction Act and other incentive-based laws. This policy is aimed at pumping over $500 billion into our economy to change our individual behavior and the behavior of the energy sector. It might be too early to claim success, but pumping billions into the economy to decarbonize the energy sector will likely have lasting impacts. While cases like Held are important, they represent a symbolic measure of our frustration with the current system. An industrial or sector-based policy will have a more lasting impact on climate change than Held and its progeny.
As it relates to Virgina, yes Virginia you do have a state constitutional recognition for environmental protection (Article XI, Sec 1: “Further, it shall be the Commonwealth’s policy to protect its atmosphere, lands, and waters from pollution, impairment, or destruction, for the benefit, enjoyment, and general welfare of the people of the Commonwealth.”). And, thankfully, Virginia’s SEPA does not contain the onerous provision excluding climate change found in Montana’s law. But most importantly, Virginia has accepted a $3 million dollar Climate Pollution Reduction Planning Grant by the U.S. EPA which was funded by the Inflation Reduction Act (IRA). This grant and all the other incentives passed by Congress will provide incentives to move Virginians to protect is own environmental treasures.
Paul Bubbosh is the Co-Director of the Local Climate Action Planning Initiative in GMU’s Schar School Center for Energy Science and Policy (CESP)