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August 30, 2023

‘Attribution science’ proves crucial to Montana youth lawsuit win

Plaintiffs in the Held vs Montana climate change lawsuit arrive to court. (Photo: AFP PHOTO / Robin Loznak/Courtesy of Our Children’s Trust/Fotoware)
Plaintiffs in the Held vs Montana climate change lawsuit arrive to court. (Photo: AFP PHOTO / Robin Loznak/Courtesy of Our Children’s Trust/Fotoware)

Young environmental campaigners will take heart from the success of Held vs Montana. However, it remains to be seen whether challenges brought in other US states – and elsewhere – will be as successful.

Young climate activists will feel empowered by the recent ruling in the US state of Montana, which declared that the state must consider climate factors when making its permitting decisions.

On August 14, a district court judge sided with 16 youth plaintiffs, who had argued that their constitutional right to a clean and healthy environment had been violated by the state of Montana when it amended its environmental policy act and prohibited the consideration of climate factors in its permitting decisions.

Despite the case specifically relying on the rights enshrined in the constitution of Montana, its impact could well go beyond state borders.

The legal foundation of the case relied on evidence based on “attribution science“, which is a new field studying the impact of climate change on the intensity and frequency of severe weather events, including individual storms, droughts or heatwaves. It also studies the contribution of specific activities or organisations to global warming.

Delta Merner, lead scientist at the Union of Concerned Scientists’ climate litigation hub, says: “What was really important was that this case was built on a foundation of scientific evidence that shows unequivocally that the use of fossil fuels is causing the Earth’s climate to change. The young plaintiffs showed that Montana’s reliance on fossil fuels is damaging important natural resources that are protected by the state’s constitution, such as the atmosphere, rivers and lakes, and fish and wildlife.”

She adds: “Scientists have long known that burning fossil fuels is the primary cause of the increase in atmospheric carbon dioxide concentrations, but now we can identify the specific sources.”

Toby Vallance, partner at law firm DAC Beachcroft, agrees that this is the crucial element in the judgment. “The key in these cases is a judicial acceptance of the impact of climate change, and then the causation element and attribution science,” he says.

Other US cases

A similar case is pending in Hawaii, where the state’s transport department has been accused, in an action by 14 youths, of emitting high levels of greenhouse gas emissions and threatening their constitutional right to a healthy environment.

Vallance says this case may be harder for the plaintiffs to pursue, however. Though Hawaii has environmental protections in its state constitution, these are not enshrined in its bills and are, therefore, “not self-executing” as explicit legislation needs to be put in place to preserve the rights, he says.

However, he adds that the social and political impact on the collective national psyche of Maui’s recent deadly wildfires could result in the Montana case inspiring further climate change litigation across the country.

Yet there is also potential for a backlash. Montana’s state government is likely to increase the resources it puts behind the appeal, Vallance says, and similar claims elsewhere may face an uphill battle as the case could also attract more attention from anti-climate groups.

Global phenomenon

While the US has been a focal point for such litigation, youth cases have been recorded in all continents. A recent report by the UN Environment Programme identified 34 global children and youth-led climate cases, as of December 31 2022.

These lawsuits rely on the argument that younger generations will have to face the intensifying effects of climate change for longer, though they are not responsible for past increases in fossil fuel emissions. Moreover, the rights of future generations are increasingly invoked in climate lawsuits, experts told Sustainable Views recently.

The UN report says the legal remit of these cases focuses mainly on challenges to carbon emissions reduction and climate commitments, measures targeting mitigation and adaptation and specific regulatory frameworks with severe climate impacts.

Though Held vs Montana (which takes its name from one of the plaintiffs, Rikki Held) is the first US climate change case to succeed at first instance, most cases heard so far have failed. The UN report notes that 14 out of the 34 identified youth lawsuits were dismissed for a lack of justiciability, standing, or for the court’s judgement to defer to executive and legislative branches.

It is very difficult to predict future outcomes, says Vallance at DAC Beachcroft, as the success rate of youth actions across the world will depend on how individual rights are enshrined within the legal systems of other countries, as well as the political landscape and stance of the judiciary at the present time.

However, with rights-based climate lawsuits filed by young citizens on the rise and key decisions on several cases still pending, the direction of travel for these types of claims will soon become clearer, he says.

 

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A service from the Financial Times