Originally published in the October 2023 issue of Bench & Bar of Minnesota Environmental Law Update, Minnesota State Bar Association.
On August 14, 2023, a Montana state court issued a ruling in favor of 16 youth plaintiffs, declaring that the state of Montana violated the youth’s constitutional rights to a clean and healthful environment. Held v. Montana, No. CDV-2020-307 (1st Dist. Ct. Mont., Aug. 14, 2023). The plaintiffs were represented by attorneys with Our Children’s Trust (OTC), an Oregon-based nonprofit organization representing youth plaintiffs in similar constitutional climate legal actions against state and federal government agencies.
The plaintiffs, ranging in age from 2 to 18 when the complaint was filed, challenged provisions of Montana’s state energy policy, which explicitly promotes the use of fossil fuels, and an amendment to the Montana Environmental Policy Act, which forbids the State and its agents from considering the impacts of greenhouse gas (GHG) emissions or climate change when permitting large energy projects that require environmental reviews, including coal mines and power plants. The plaintiffs alleged that the State's fossil fuel-based state energy system causes and contributes to climate change in violation of their constitutional rights guaranteed under the Montana Constitution and the public trust doctrine.
The Montana Constitution includes unique environmental protection provisions. Article IX, Section 1 of the Montana Constitution provides that “the state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations.” Article II, Section 3 of the Montana Constitution guarantees “the right to a clean and healthful environment and the rights of pursuing life's basic necessities, enjoying and defending their lives and liberties, acquiring, possessing and protecting property, and seeking their safety, health and happiness in all lawful ways.” The public trust doctrine is a long-standing legal principle that establishes certain natural resources as common property which the government must preserve and maintain for public use, and is codified in Article IX, Section 3 of the Montana Constitution.
In the ruling, the court affirmed the plaintiffs’ claim that a stable climate is included in a right to a “clean and healthful environment,” guaranteed in Montana’s constitution. The court also found the provision in Montana’s Environmental Policy Act prohibiting the state from considering climate impacts when permitting energy projects, to be unconstitutional.
Although the ruling in Held is narrowly focused on provisions of Montana’s state energy policy, the decision illustrates how state constitutional law may provide a foundation for climate legal actions and provides a framework for overcoming procedural hurdles such as standing, causation and redress.
The Public Trust Doctrine and MERA
Since 2011, OCT, has filed actions against the federal governments and all fifty states alleging that these governmental entities violated the common law public trust doctrine by failing to limit GHG emissions that contribute to climate change. OCT's claims are rooted in the public trust doctrine.
The common-law public trust doctrine was first formally recognized by the United States Supreme Court in Illinois Central Railroad Co. v. State of Illinois, 146 U.S. 387, 435 (1892). The doctrine has historically been applied to protect the public's rights to use navigable waterways for fishing, commerce and navigation. A minority of states have expanded their public trust doctrines to protect public lands, parks, shoreland and beaches, the atmosphere, animals and plant species.
Some state legislatures have enacted laws reflecting common law public trust doctrine principles. In 1971, the Minnesota legislature enacted the Minnesota Environmental Rights Act (MERA). MERA grants any private party, state or local government the right to sue for declaratory or equitable relief to protect “the air, water, land or other natural resources located within the state, whether publicly or privately owned, from pollution, impairment or destruction.” (Minn. Stat. § 116B.03, subd. 1).
OTC’s 2011 Climate Lawsuit in Minnesota
In 2011, OTC sued the State of Minnesota; Governor Mark Dayton, and the Minnesota Pollution Control Agency (collectively, the “State”), on behalf of Reed Aronow, a 25-year-old Minnesota resident. Aronow alleged that the State failed to carry out its duties under the public trust doctrine and MERA to adequately reduce Minnesota’s GHG output and thus preserve the atmosphere for the benefit and protection of present and future generations of Minnesotans. Aronow requested a declaratory judgment confirming that the atmosphere is protected by the public trust doctrine and that the State violated of the public trust doctrine by failing to preserve and protect the atmosphere for the use of present and future generations. The trial court granted the State’s motion to dismiss for failure to state a claim upon which relief can be granted. The trial court held that the public trust doctrine applies only to navigable waters, and that Aronow failed to plead a viable claim under MERA. Aronow appealed the trial court’s ruling and requested that the Minnesota Court of Appeals expand the common law public-trust doctrine to include the atmosphere. In an unpublished opinion, the Minnesota Court of Appeals affirmed the trial court's order and held that held in an as an intermediate appellate court, it was an error correcting court and thus was without authority to change the law. Aronow v. State, No. A12–0585, 2012 WL 4476642 (Minn. Ct. App. Oct. 1, 2012). Accordingly, at least for the time being, Minnesota’s common law public trust doctrine applies only to navigable waters and not to the climate.
OCT is aggressively litigating a series of lawsuits invoking the public trust doctrine against state governments for failure to implement policies that adequately address climate change. In addition to bringing legal actions on behalf of children, OCT has petitioned nearly every state environmental agency to enact rules that would reduce statewide GHG emissions to a level consistent with scientific projections for the global emissions reductions needed to achieve climate stability. Held v. Montana made history when it became the first-ever constitutional climate case to go to trial. As noted, however, Held involves a narrow holding under a state-specific constitutional provision, so its application in other jurisdictions may be limited. Nonetheless, the case provides a striking example of the public trust doctrine being used to support existing environmental protection statutes and regulations in climate litigation.