Legal and energy experts discuss historic climate case

Montana is appealing a historic court ruling that found the state must consider greenhouse gas and climate impacts in its environmental reviews of projects. The appeal – presented to the Montana supreme court earlier this week – posits that a provision of the state’s constitution obligating policymakers to “maintain and improve a clean and healthful environment” does not apply to energy projects.

Below, Stanford University experts in law and energy discuss the case and its potential impacts. Deborah Sivas is an environmental litigator whose research combines law and science to combat the climate crisis, as well as enable the public to hold policymakers accountable for their actions. Barton “Buzz” Thompson served as special master for the United States Supreme Court in Montana v. Wyoming, an interstate water dispute involving the Yellowstone River system. Mark Jacobson served as an expert witness in the Held vs. Montana case, describing the technological and economic feasibility to transition Montana off of fossil fuels by 2050 and supply its energy needs via clean, renewable power. (See related tipsheet.)

The judge in the original case ruled that Montana’s state constitution guarantees the right to a “clean and healthful environment.” Could a similar case be made in other states or at the federal level?

Sivas: Montana has the nation’s most far-reaching constitutional guarantee to a “clean and healthful environment . . . for present and future generations.”  A handful of other states, including most notably Hawaii, Pennsylvania, Massachusetts, Illinois, and Rhode Island, have some degree of environmental protection built into their state constitutions, mostly enacted as part of the emerging environmental movement in the 1970s.  The U.S. Constitution does not have such language, and the federal courts have rejected attempts over the years to find a right to a clean environment.

Thompson: Youth in other states, like Utah and Virginia, have argued that fossil fuel activities violate the “public trust doctrine” or constitutional provisions guaranteeing due process, but those arguments are significantly weaker. If other states follow the lead of the Montana court, however, it could change the dynamics of climate politics in the U.S. 

Practically speaking, what does it mean that Montana must “consider” climate change when deciding whether to approve or renew fossil fuel projects?

Sivas: The original ruling told the state that it could not categorically prohibit consideration of climate impacts and, in fact, must consider them. But what constitutes adequate consideration is a matter of state law that does not draw a bright line. That gets sorted out when someone sues and argues that a particular environmental review document is inadequate. Courts generally look at whether the analysis of impacts is sufficient to satisfy the statute’s goal of fully informing the public and decisionmakers of a particular project’s effects before approval. 

What would you say to those who argue upholding the ruling would put an unfair and / or impossible burden on Montana’s energy sector? 

Jacobson: Most people are not aware that Montana already produces nearly all of the electricity it consumes with wind, water, and solar power. Montana has the potential to get all of its energy – for electricity, transportation, buildings, and industry – from these sources while reducing annual energy requirements and consumer energy costs by more than 60 %. Doing so would require using less than 1 % of the state's land for new wind turbines and solar panels. 

Some have predicted that Montana and other states might respond to cases like this by promoting supposedly clean technologies that don’t actually cut emissions. What are some examples of this?

Jacobson: I am concerned that Montana’s state government will promote technologies, such as capturing and storing carbon from emissions sources, producing hydrogen from fossil fuels, and creating synthetic fuels by mixing hydrogen and carbon dioxide. These technologies would keep the fossil-fuel industry alive for decades, increasing carbon dioxide emissions, air pollution, fossil mining, and fossil infrastructure, such as pipelines, mines, and carbon capture equipment.

What does the future hold if the appeal fails and the original ruling holds up?

Thompson: Even if it survives appeal, my guess is that the state will continue to pursue the development of its fossil fuels and force plaintiffs to challenge each and every permit. It is just one part of an incredibly diverse set of lawsuits that plaintiffs are bringing to try to affect the U.S. energy trajectory. And those lawsuits are just part of a much broader set of actions that the federal, state, and local governments are taking to address climate change. For all of the attention that this case has received, it is just one battle in a much larger war. So stay tuned.

Sivas is the Luke W. Cole Professor of Environmental Law and director of the Environmental Law Clinic at the Stanford Law School. Thompson is the Robert E. Paradise Professor of Natural Resources Law at the Stanford Law School. Jacobson is a professor of civil and environmental engineering and a senior fellow at the Precourt Institute for Energy. Sivas, Thompson, and Jacobson are all professors at the Stanford Doerr School of Sustainability and senior fellows at the Stanford Woods Institute for the Environment.