Next generation winning legal battles against fossil fuel policy

Young people are taking governments to court for failing to limit greenhouse gases, and thereby threatening the health of future generations. Recently three justices in Canada ruled that the youth who brought the case are deserving of a trial to determine if Canada is protecting children’s constitutional rights to life, liberty and security of the person.

The justices acknowledged in their decision that climate change is a current and consequential problem and that “it is also beyond doubt that the burden of addressing the consequences will disproportionately affect Canadian youth.” The justices also noted that climate change has had a serious effect on indigenous peoples, “threatening the ability of Indigenous communities in Canada to sustain themselves and maintain their traditional ways of life.”

Saying that climate change could qualify as “special circumstances,” the justices stated that a trial is needed to determine if such circumstances call the government to affirmatively protect the youth plaintiffs. Read the justices’ decision here.

“This decision contains very clear language that a trial is needed to hold Canada to account for its failure to limit GHG emissions,” said Catherine Boies Parker, a lawyer for the youth plaintiffs. “While the Court found that the claim must be amended to more specifically identify the provisions that lead to excess GHG emissions, the Court confirmed the right of these children to challenge Canada’s actions and inactions as causing significant harm to their security of the person.”

The lawsuit joins the list of actions that young people have taken against governments across the U.S. Backed by Our Children’s Trust, a public interest law firm founded in 2010 on the idea that courts are vital to democracy and empowered to protect our children and the planet. In addition to the case in Canada, La Rose v. His Majesty the King, Our Children’s Trust recently filed a federal constitutional climate lawsuit against the EPA. In June the Trust brought a case against the State of Montana. Not only was this the first constitutional climate trial in U.S. history, but the plaintiffs received a landmark ruling declaring Montana’s laws to be unconstitutional.

The Montana case, Held v. State of Montana, was filed three years ago by 16 youth plaintiffs who were not seeking monetary compensation, but sought to declare state laws unconstitutional that permitted agencies from considering climate change or greenhouse gas emissions when permitting fossil fuel activities.

Montana is a state that traditionally has been heavily dependent on fossil fuels. It contains the largest coal reserve in the U.S., amounting to 30% of the U.S. total. According to the Energy Information Administration, Montana obtains 43% of its electricity from coal, 41% from hydro, 12% from wind, and 2% from natural gas and 3% from hydropower. Through Q4 2022, Montana was ranked 44th in the country for solar installations, with only 133 MW of installed capacity, or enough to power 17,410 homes, according to the Solar Energy Industries Association. 

Read 50 states of solar incentives: Montana.

On December 13, 2023 the Montana judge ruled in favor of the plaintiffs in Held v. State of Montana, agreeing that the fossil-fuel dependent state violated their rights to equal protection, dignity, liberty, health and safety, and public trust, predicated on their right to a clean and healthful environment.

The 103-page decision by Judge Seeley sets a new legal precedent for the rights of youth including:

• The State authorizes fossil fuel activities without analyzing GHGs or climate impacts, which result in GHG emissions in Montana and abroad that have caused and continue to exacerbate anthropogenic climate change.
• The order provides meaningful redress to plaintiffs’ injuries because “the amount of additional GHG emissions emitted into the climate system today and in the coming decade will impact the long-term severity of the heating and the severity of Plaintiffs’ injuries”.
• Montana’s GHG contributions are not de minimis but are nationally and globally significant. Montana’s GHG emissions cause and contribute to climate change and Plaintiffs’ injuries and reduce the opportunity to alleviate Plaintiffs’ injuries.

Called a game changing ruling by Julia Olson, chief legal counsel and executive director with Our Children’s Trust, she said “this marks a turning point in this generation’s efforts to save the planet from the devastating effects of human-caused climate chaos”.

“Today, for the first time in U.S. history, a court ruled on the merits of a case that the government violated the constitutional rights of children through laws and actions that promote fossil fuels, ignore climate change, and disproportionately imperil young people,” said Olson.

The legislative and executive branches in Montana are now responsible for conforming their practices around fossil fuels to the judge’s ruling, including the admonition that “[e]very additional ton of GHG emissions exacerbates Plaintiffs’ injuries and risks locking in irreversible climate injuries.” The State has 60 days to decide whether to appeal the decision to the Montana Supreme Court.

Future cases include a federal constitutional climate lawsuit, Juliana v. United States, in which Our Children’s Trust represents the 21 youth plaintiffs based on the question of whether the federal government’s fossil fuel-based energy system, and resulting climate destabilization, is unconstitutional. The Trust also has a case against the Hawaii Department of Transportation, another in Utah and another in the Commonwealth of Virginia.