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With the federal judiciary increasingly hostile toward the battle against climate change, environmental litigators have turned to state courts for progress. They scored a major victory on Wednesday when the Montana Supreme Court issued a landmark decision holding that the state constitution protects residents against climate change. On this week’s Slate Plus bonus episode of Amicus, Dahlia Lithwick and Mark Joseph Stern discuss the case and its consequences for other climate-curious state supreme courts. A preview of their conversation, below, has been edited and condensed for clarity.

Dahlia Lithwick: This week, the Montana Supreme Court boldly went where we keep hoping state supreme courts will go.

Mark Joseph Stern: It all started with a provision of the state constitution that guarantees the right “to a clean and healthful environment” and requires the state “to maintain and improve” that environment “for present and future generations.” Citing this language, the Montana Supreme Court, by a 6–1 vote, held that the state constitution limits the government’s ability to exacerbate climate change. The court discussed the obvious and undeniable reality of climate change, not just globally but in Montana. Refreshingly, it began the opinion with facts about how climate change is ravaging Montana and threatens everybody’s way of life.

Then the court declared that the plaintiffs in this case, a group of young people, could bring this suit and hold the government to its constitutional obligation to protect the environment for future generations. It explained that this obligation is about not just preventing oil spills and other disasters but also limiting carbon emissions so that everyone can enjoy a clean Montana for hundreds of years to come.

If we’ve learned anything about environmental law, it’s that nothing stops or starts within the confines of a state. So while this sounds like an incredibly cool and lofty win, it also sounds like an abstraction, right? Does this actually change anything on the ground in Montana?

It does, and that’s what’s so extraordinary about the opinion to me. Montana Republicans enacted a statute that prohibited the state from considering greenhouse gas emissions when permitting energy projects. The state government essentially said that agencies could not consider the effect of fossil fuels when allowing fossil-fuel projects to move forward. And the court actually struck down that statute, requiring the government to once again consider greenhouse gas emissions when permitting projects. It’s laying the groundwork to limit permits in the future that exacerbate climate change.

That takes this case outside the realm of abstraction and moves it into a much more concrete area. The courts really do have the power to examine a statute or a permit and say, No, this is repugnant to the constitution and must be set aside. They can do the direct work of limiting the devastating impact of fossil-fuel projects today and in the future.

I want to talk for a minute about the question of standing, which is a persistent problem in climate litigation. Lawsuits fall apart on standing because the courts seem to believe that nobody is personally injured by environmental catastrophes that harm absolutely everybody. How did the Montana Supreme Court get around that problem?

The state, in fighting this lawsuit, did argue that climate change affects everyone, so the plaintiffs here did not have a “particularized” injury that gave them the right to sue. The Montana Supreme Court shut that down. It held that because climate change affects everyone in some way, these individual plaintiffs aren’t unharmed. Quite the opposite: It illustrates that these plaintiffs clearly do have real grievances, that their future in Montana is jeopardized, and they should be able to vindicate a constitutional guarantee that applies to each and every person under the state’s foundational law.

Here, the state Supreme Court departed a bit from the U.S. Supreme Court’s standing doctrine—and properly so, because the Montana Constitution provides broader access to the state’s courts than the U.S. Constitution provides to federal courts. Here, the majority refused to turn a provision so central to the Montana Constitution into a nullity just because climate change happens to affect the whole world. We know that it’s affecting Montana in a heightened way. We know that the plaintiffs’ future is imperiled by the acceleration of climate change. And the court said that’s enough for them to come into state court and challenge a law that will exacerbate Montana’s greenhouse gas emissions.

Some of the actual drafters of the Montana Constitution are still alive, right? And they were able to say that this was indeed the intent of their work?

Yes, that’s absolutely right. The current Montana Constitution was enacted in 1972, so there’s a very clear record of what the delegates wanted. And some of those delegates are still alive and have made it abundantly clear that at the time they wanted the strongest, most all-encompassing environmental protections in the nation. The delegates labored over this language to ensure that it would be the strongest found in any state constitution and rejected language that might limit it. Their protections were designed to be, as the court put it, “anticipatory and preventative” for both “present and future generations.”

Why? Because for decades, big corporations had destroyed Montana’s environment. They had harvested all these resources from the state without concern for the lives of residents. And in 1972, the delegates said: enough. They saw that their state was being ravaged by corporations, and they decided to make it a fundamental guarantee that any Montanan could walk into court and vindicate their right to a clean environment. And that is what happened in this decision.

One last thought: Is this utterly Montana-specific, to this one Supreme Court, or is this scalable and replicable across the country?

It is scalable. Montana isn’t alone here: Hawaii also has a state constitutional provision that guarantees the right to a “clean and healthful environment,” and its Supreme Court has vindicated that guarantee, holding that it includes the right to a stable climate system. It will continue to be a watchdog on this. Of course, the Hawaii Supreme Court is one of the most progressive in the country, but these provisions exist in the constitutions of five other states: Illinois, Massachusetts, New York, Pennsylvania, and Rhode Island.

I think there is so much potential—especially in a state like Pennsylvania, which has a lot of dirty-energy projects going on—for the state judiciary to impose some limits on a corporation’s ability to destroy the environment. All these states have left-leaning supreme courts. And I hope they will be emboldened and inspired by what happened in Montana to take action here and vindicate residents’ right to an environment that not just is free of litter and toxic materials but can endure for centuries into the future. That means taking climate change into account and imposing limitations on a state’s ability to exacerbate it.

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