David J. Toscano is an attorney and the former Democratic Leader in the Virginia House of Delegates. He is the author of Fighting Political Gridlock: How States Shape Our Nation and Our Lives, published in 2021 by the University of Virginia Press and Bellwether: Virginia’s Political Transformation, 2006-2020, published in 2022 by Hamilton Books.

Polls consistently show the younger generation’s greatest concern is climate change, with a subset believing it to be an “existential threat” to the future of the planet. A 2022 survey by the EdWeek Research Center survey found that 37 percent of teenage respondents feel anxious about climate change and its effects. Perhaps most troubling is the number who feel paralyzed to do much about it beyond their own outside protestations.

Before embracing the fatalistic belief that humanity is doomed, however, perhaps we can draw inspiration from the actions of their young activists in the state of Montana, who recently won a victory in Big Sky Country, using state Constitutional provisions and a legal theory called “Public Trust Doctrine” to win a court battle designed to combat global warming.

Victory In Big Sky Country

The case, Held v. Montana, was initiated in 2020, when a group of sixteen Montana teenagers and children filed suit alleging that their state was complicit in the release of greenhouse gases contributing to climate change. The case is significant because it was brought in a state court and alleged a violation of the Montana state Constitution. The group's attorneys, Our Children’s Trust, a Oregon-based law firm actively engaged in similar actions in other states, asserted that laws prohibiting Montana from considering the impact of greenhouse gas emissions in its environmental reviews violated the state Constitution and its public trust doctrine. On August 14, 2023, after multiple motions and briefs filed by Montana and eighteen Republican-controlled states opposing the suit, and an eight-day trial, the Montana district court ruled for the plaintiffs, finding that, under the state’s Declaration of Rights and other provisions in the Montana Constitution, there is a “fundamental Constitutional right to a clean and healthful environment, which includes climate.”

In Constitutional law, once a court finds a fundamental right in Constitutional provisions, a challenge to a statute or policy is analyzed under the principle of “strict scrutiny.” For the challenged law or regulation to remain, the state or federal government must show that the contested provision is "narrowly tailored" to achieve a "compelling state interest." In Held, the court found a fundamental right in the state Constitution, and that the challenged state law could not withstand a “strict scrutiny” analysis.

Shock Waves

The ruling sent shock waves throughout the nation, having been issued in a state that is the nation’s fourth-largest coal-producer and estimated to contain the country’s largest recoverable coal reserves, about 30 percent of the U.S. total. The state’s Republican Attorney General called the decision “absurd,” and with Governor Greg Gianforte, as strong an advocate for fossil fuel interests as any elected leader in the country, sitting in the governor’s mansion, an appeal is expected. The state’s Supreme Court is composed of a Chief Justice and six Associate Justices, all of whom are selected in statewide nonpartisan elections by Montana’s citizens for eight-year terms. Regardless of the case's merits, there are complex legal issues in play, and the higher court might still dismiss the case based on various procedural grounds. Nonetheless, the trial court’s decision, based on state Constitutional law, will undoubtedly inspire other cases in states whose Constitutions include so-called “green amendments” to protect the environment.

“Green” Constitutional Amendments In Other States

MD Campaign for Environmental Human Rights

Montana is not the only state with Constitutional provisions supportive of the environment. Pennsylvania’s Constitution includes the explicit “right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment.” Rhode Island’s Constitution contains a clause enshrining the “rights to the use and enjoyment of the natural resources of the state with due regard for the preservation of their values.” New York adopted new language in 2021 to give its residents the “right to clean air and water, and a healthful environment.” Since 1972, the Virginia Constitution has included language stating that, “it shall be the policy of the Commonwealth to conserve, develop, and utilize its natural resources, its public lands, and its historical sites and buildings.”

Although the language used may sound impressive, past attempts to utilize these Constitutional provisions have yielded inconsistent outcomes. By the 1990s, the Illinois Supreme Court had eviscerated its own green amendment. In a series of Virginia cases dating to the 1980s, its Supreme Court ruled that the state’s environmental amendment imposed no specific procedural or substantive requirements upon the state to act.

But the times may be changing. In Pennsylvania, a recent series of state supreme court cases, including one in 2021, used state Constitutional provisions to strike down laws favorable to oil and gas interests, and the state now requires the proceeds from the leasing of public land for extraction to be used to restore the environment. Relying on Hawaii’s stated Constitutional provision giving residents, “the right to a clean and healthful environment,” young activists recently sued the state’s Department of Transportation over its use of fossil fuels. Common to these claims is a centuries-old legal argument called “public choice doctrine.”

Public Choice Doctrine

The Montana Constitution not only establishes a fundamental “right to a clean and healthful environment,” but includes another provision that is relevant to the legal debates surrounding climate change. This concept is known as Public Choice Doctrine and is firmly embedded in Article IX of that state’s Constitution. The Public Trust Doctrine has its roots in Roman and British Common law and asserts that the government has a duty to protect natural resources like water, land, and air for public use. It makes no difference who owns the property over which the water flows or the air blows; a public trust is imposed on the use of the resources for the public good. When this trust is violated, the public can intervene to protect it. In the legal context, this gives the public the right to sue to restore the trust.

The U.S. Supreme Court articulated the concept in the 1892 case of Illinois Central Railroad Co. v. Illinois: “[T]he state holds the title to the lands under the navigable waters . . . in trust for the people of the state that they may enjoy the navigation of the waters, carry on commerce over them….”

While legal scholars have written extensively about Public Trust Doctrine, it is largely unknown to the general public. But it is being argued increasingly in environmental lawsuits, including the Held case in Montana, a similar state case in Hawaii, and a federal action in Oregon which may prove even more significant, Juliana v. United States.

Juliana

When Juliana was filed eight years ago, it gained national attention as the first major lawsuit involving climate change. The plaintiffs, composed of young people and children, argued that our nation’s policies cause climate change and violate the youngest generation’s Constitutional rights to life, liberty, and property. They also asserted that the United States violates the public trust doctrine by failing to protect our air, water and other natural resources from the impacts of climate change. Its failure to protect the plaintiffs’ fundamental right to a stable climate represents a violation of substantive due process under the U.S. Constitution.

The case languished for years, as powerful interests, including the U.S. Department of Justice (DOJ), fossil fuel companies, and 18 Republican state Attorneys General, filed numerous motions to have the case dismissed. One by one, these motions were rejected, and a multi week trial is now set for late October in the U.S. District Court of Oregon. Some are comparing the potential impact of this case to Brown v. Board of Education and litigation about same sex marriage. It will be the very first time U.S. fossil fuel policy will meet climate science in a federal court.

Reinvigorating Virginia’s Article XI

Virginia’s present Constitution was rewritten in 1971, during the height of the environmental movement. Perhaps because of that, the document includes Article XI, which proclaimed that the policy of the Commonwealth was to protect its water, air, and natural resources. Unfortunately, and unlike other states’ “green amendments”, the provision never states that there is a “right” to these protections, making it much more difficult to enforce. And unlike Montana, there is no language related to public choice doctrine in our Constitution, and our courts have largely ignored the concept as a basis for protecting the environment.

Is it possible in this political climate that our Constitution could be strengthened to make it more useful in fighting climate change? We could tweak Article XI by inserting a key phrase or word, but that may not be enough. A more effective approach might entail enacting an entirely new amendment establishing the right to a stable climate, and to locate the provision within our Bill of Rights. This would accord it status as one of our fundamental rights, making enforcement easier. Such a measure would have wide support. But amending the Virginia Constitution is very difficult; it requires language to be passed in two successive legislative sessions separated by an election, and then approval by a majority of the voters. Given the political climate, it would likely require that Democrats control both chambers of the General Assembly for at least four years.

While the governor’s signature is not necessary to enact an amendment, our present chief executive and his party would provide substantial opposition to such an amendment. Evidence of climate change denial is rampant with Virginia’s GOP and found in many of Youngkin’s actions. Most recently, he has attempted, without legislative authority, to remove the state from the Regional Greenhouse Gas Initiative (RGGI), the consortia of states who have joined together to combat climate change in ways the federal government has been unable to do. We have seen the Virginia GOP oppose the Virginia Clean Economy Act and propose rollbacks at every opportunity. Such a Constitutional change will not be easy.

The legal arena nonetheless presents the opportunity for a new generation of lawyers and a reconstituted state supreme court to breathe new life into Article XI and public choice doctrine to address climate change issues. There is a strong argument that the drafters of Article XI not only intended it to be a “mandate,” that is, a self-executing means compelling state officials to consider environmental impacts in all decisions, but also as a statement that Virginia’s land and waters are to be held in trust for its citizens. One way to test this approach might be to include a public trust argument in the suit against Youngkin arising from his actions to withdraw from RGGI. The Supreme Court of Virginia could find that Article XI recognizes and expands a public trust without overruling earlier decisions.

With all this Constitutional uncertainty in Virginia and the time and challenges involved in pursuing exclusively legal strategies, the best approach likely remains winning at the ballot box. A progressive legislature and governor will have more impact than slow churning lawsuits.

Challenges Remain

The activists in Montana, Oregon, and Hawaii have it right. They understand their legal cases will not be easy to win. Procedural and evidentiary obstacles remain to be overcome, including issues of causation, remedies that can be awarded, and the degree to which the public trust doctrine and Constitutional claims can prevail in state and federal courts. And final resolution is not likely to occur for years. Hence, the plaintiffs are using their lawsuits not just as legal challenges but as organizing tools to build a network for change. Within days of the Montana legal victory, youngsters had gathered thousands of new proponents via social media, people who can be organized either to vote or to engage in other advocacy. Ultimately, legal strategies can win great victories. But such approaches are most powerful when they are combined with political strategies designed to affect legislatures and executives, either in the states or in the Congress.

The public increasingly recognizes that a stable climate system capable of sustaining human life is the foundation of society. Litigation is becoming an important element of the movement to address climate change, and we need to support the younger generation as they push the envelope of what we once thought possible in perhaps the most significant fight of our lives.