On August 14, a state judge in Montana declared unconstitutional state laws that bar state officials from considering potential climate impacts related to fossil fuel-related permitting decisions. The statutes, the judge wrote, violated the state constitution’s guarantee of “a clean and healthful environment … for present and future generations.”

The ruling is both unprecedented in the United States and, says Harvard Law Professor Richard Lazarus, a reason for climate activists to celebrate. But he cautions that the final impact of the state district court ruling, both in Montana and nationally, remains to be seen. The state attorney general plans to appeal the decision to the Montana Supreme Court. And similar constitutional provisions protecting the environment exist in only a handful of other states and are absent from the federal Constitution.

To learn more about the case and how it might affect state and national climate policy, Harvard Law Today recently spoke with Lazarus, an expert in environmental and constitutional law who has represented the U.S., state and local governments, and environmental groups before the U.S. Supreme Court in 40 cases. 

Harvard Law Today: Why do you think this ruling in Montana is important?

Richard Lazarus: It’s important because it’s the first time in the United States that a court has held that there is a constitutional right to a stable climate, that it’s enforceable, and that the government has violated it. Now, that has already happened in other countries. There are several other countries, whose courts have held that their constitutions include a right to environmental protection and that have extended that to climate. But it hasn’t happened in the United States. And so, that by itself is a big deal. It is probably also a big deal because there’s not a lot of good climate news coming out of courts these days. I think people were looking for a reason to celebrate, and they got it. The plaintiffs did a truly outstanding job at litigating this case, and they won big.

The other thing is that the court made a series of really detailed and rigorous factual findings about the causes of climate change, and the government’s role in causing climate change. And those, alongside the trial court’s conclusions of law, are significant.

HLT: The State of Montana rested its case after only one day, having presented only three witnesses, compared to 24 witnesses for the plaintiffs. Putting aside the merits of the arguments, from a tactical standpoint, did the state take this case too lightly? Or, to put it another way, would the state have had a better chance of winning if they’d contested some of the facts offered by plaintiff’s witnesses?

Lazarus: I doubt it. I think that it’s pretty hard to challenge the fact that climate change is real, what the effect of climate change is, or what has caused climate change. My guess is the state didn’t want to get into a very expensive, detailed, time-consuming trial on those factual issues, which they probably thought they’d lose anyway. Instead, it seems they decided to focus on the legal argument that there is no enforceable right to a stable climate under the Montana state constitution. That may have been a tactical error, given the fact that this decision came down and got a lot of play in the national media. But if the state wins on appeal, they’ll say that their approach was smart, because they will have avoided the time and expense of a lengthy trial but gotten the outcome they wanted in the end. So, while it doesn’t look like a wise decision right now, we’ll have to see what happens on appeal.

HLT: As you mentioned, the state plans to appeal to the Montana Supreme Court. Is there a consensus on how that court might rule?

Lazarus: I don’t think there is. Although I don’t know the Montana state courts that well, I gather there were some prior rulings by the Montana Supreme Court in which the justices didn’t give the state immediate relief that it wanted. For instance, the state petitioned for what’s called interlocutory relief to avoid the trial altogether. And the Montana Supreme Court turned down the government’s request and let the trial move forward. So, we’ll have to see what happens on appeal. But I don’t think anyone thinks that the ruling by the lower court is invulnerable.

HLT: If the plaintiffs win in the Montana Supreme Court, what kind of relief will they likely receive?

Lazarus: The only relief the lower court granted so far was to strike down a state law that barred government officials in Montana from considering the impacts on the climate in making decisions, such as when deciding whether to grant permits for new fossil fuel projects or power plants. That law was bonkers. It is one thing for a law to say that officials must balance or weigh different considerations, including the impacts on climate, against each other. But the state legislature passed a law saying officials cannot even take those climate factors into account. Striking down a law like that as unconstitutional is low hanging fruit.

What the court hasn’t yet done is say, “Because, State of Montana violated the state constitution, here the things that state officials now have to affirmatively do: For instance, the state cannot permit any new fossil fuel development. State officials cannot allow any new fossil fuel power plants. The state must bring down greenhouse gas emissions to certain levels.” That would be a real remedy. It’s comparatively easy to strike down an unconstitutional law, but it would be much tougher to stipulate what the state must do to affirmatively comply with the state constitution. That would be a much bigger deal. And we haven’t seen the court take that step.

HLT: Assuming this decision is upheld on appeal, would you expect more litigation in the future testing whether the state has adequately complied with the court’s ruling?

Lazarus: Yes. Advocates for the environment will try to get the court to strike down fossil fuel permitting and leasing decisions — anything which affects greenhouse gas emissions — and to grant injunctive relief. And that’s a much more intrusive thing to do. Which is why the one federal court of appeals to address this issue, as a matter of federal constitutional law, threw the case out. In a case called Juliana v. United States, three liberal judges on the Ninth Circuit Court of Appeals voted 2-1 to say that, even assuming a federal constitutional right to a stable climate exists — and remember that the Montana case involves a state, not a federal, constitutional right — the kind of relief that contemplates a federal court telling the federal government how to address climate change is beyond the power of federal courts.

The two things that are different in the Montana case are, one, that Montana has affirmative language in the state constitution proclaiming a right to a healthy environment. The U.S. Constitution doesn’t have that. And two, in this Montana case, so far, the court hasn’t yet opined on the broader relief being sought by the plaintiffs.

HLT: Do other state constitutions include similar environmental protection provisions that might be the basis for state-level litigation?

Lazarus: Montana added this provision to its constitution in 1972. And a bunch of states adopted similar provisions in the 1970s. So, Pennsylvania and New York have similar language. And Massachusetts, Illinois, and Hawaii have language, that while not identical to Montana’s, suggests an affirmative right to environmental protection. Article 97 of the Massachusetts constitution, for instance, says that people should have the right to clean air and water. Now, that’s not the same thing as a healthy environment. But you can expect people are going to try to bring lawsuits, and some already have. Montana’s is just one of the first to come to trial.

HLT: It seems like a lot of these national issues — climate change, abortion rights, voting rights — are increasingly being decided by state courts based on state constitutions and statutes. Is that right, and if so, why?

Lazarus: That’s correct. And the reason is that the U.S. Congress is no longer able to legislate on these types of national or global policy questions. It would make much more sense for climate change, which is national and global issue, to be handled by the national government, rather than state-by-state. But the last time Congress amended the Clean Air Act in any significant way was 1990. The Water Act, 1987. The Endangered Species Act was 1973. We have such paralysis over so many issues in the U.S. Congress that we can’t get any major legislation passed.

And then there is the question of whether the EPA can act in the absence of Congress. Can they take the old language from these old laws and do the kind of creative things we need to address climate change? Until recently, the answer had sometimes been yes, sometimes no. But about a year ago, in a case called West Virginia v. EPA, the Supreme Court said, “No, we want to see specific, clear congressional authorization for you to do these creative things on climate. These EPA proposals may be a great idea. But we don’t think Congress was thinking about that in 1990, or 1970, when they passed these laws. So, you have to show us more.” That was a setback. And it gave people one more reason to believe that the EPA is not going to be able to do this on its own. So, everyone’s racing to try to do it in the states, at least where there are states that are receptive to it. And there are a bunch of states doing progressive things, including California, Massachusetts, New York, and New Jersey.

HLT: Are you surprised that this win came in Montana, which is a big fossil fuel producer?

Lazarus: Montana would not have been high on anyone’s list of likely states. But that’s because Montana today is not Montana from 1972. Things have changed. Montana used to have Democratic senators. But it’s a different world today. Part of the question will be, what’s the Montana judiciary going to say today about using this old, progressive constitutional language in this new way? We know what one judge has said. What will the Montana legislature do? Will they try to amend the state constitution? I don’t know.

The great irony is that, in the 1960s and 70s, people worried that the state courts were too parochial, and that they were too often captured by business, or powerful leaders, and that they couldn’t be trusted to do civil rights work. You needed federal courts, and federal legislation, because the states couldn’t be trusted. And you couldn’t trust the state to do environmental stuff. The federal government had to do it. Well, now that the federal government is in arrears, or sometimes paralyzed, you see people returning to the states, and trying to see if they can get good stuff done there.

HLT: So, what should people take away from this decision in Montana?

Lazarus: One, that it’s a historic decision, and people who care about climate should celebrate it. Two, they should recognize that we still don’t know its full impact. And there are reasons still to be concerned, with one worry being whether it’ll be upheld within Montana and another being whether other states will emulate it or not. But it’s better than a loss. On the other hand, there’s no reason to think this decision will be emulated by the federal courts. So far, they’ve mostly rejected these arguments.

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