On August 14, 2023, a Montana state court found that a Montana environmental review statute (the Montana Environmental Policy Act or MEPA) that limited (and as amended in May 2023, precluded) consideration of greenhouse gas (GHG) emissions and corresponding impacts of those emissions on the climate in connection with environmental reviews was violative of Article IX, Section 1 of the Montana constitution that requires that "[t]he state and each person maintain and improve a clean and health environment in Montana for present and future generations."

The court's ruling was almost entirely focused on the evidence presented by the plaintiffs in significant part because the defendants began and rested their defense on the same day, arguing primarily that the case presented an issue that should rightly be decided by the legislature and not the judiciary.

In its 103-page order, the court found that plaintiffs had standing, noting that although plaintiffs' mental health injuries directly resulting from state inaction or counterproductive action on climate change did not establish a cognizable injury, plaintiffs' mental health injuries stemming from the effects of climate change on Montana's environment, were cognizable injuries. The court also found redressability, presuming that if the court declared MEPA unconstitutional, that would somehow compel Montana to deny future permits for fossil fuel activities thereby reducing the levels of GHG emissions in the state.

In finding portions of the MEPA statute to be violative of the Montana constitution, the court stated that [b]y prohibiting consideration of climate, GHG emissions, and how additional GHG emissions will contribute to climate change ... the MEPA Limitation violates Plaintiffs' right to a clean and healthful environment and is facially unconstitutional".

Montana's attorney general has already indicated the state intends to appeal the court's ruling, noting that this "same legal theory has been thrown out of federal court and the courts in more than a dozen states." What impact this ruling might have, if any, on Juliana et al. v. United States—which is pending in federal court in Oregon and involves claims that the actions of the federal government are violative of the federal constitution remains to be seen, especially since the U.S. constitution doesn't contain similar language regarding the right to a clean environment as is contained in the Montana state constitution.

In any event, we will continue to provide timely updates on breaking environmental, health and safety issues at the Corporate Environmental Lawyer blog.

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