Climate Change

Is climate litigation the way forward for accountability and climate action?

Recent judgment in the US held the State of Montana responsible for causing unreasonable damage to climate

By Khushboo Pareek
Published: Thursday 24 August 2023
Photo: iStock

A landmark judgment in the United States held the State of Montana accountable for causing unreasonable damage to the climate and violating the fundamental constitutional right of youth plaintiffs to “a clean and healthful environment”.

The case began in March 2020, when 16 children of ages varying from two to 18 years old filed a case against their State’s fossil fuel-based energy system — causing and contributing to climate change and violating their constitutional rights. The north-western state has the highest recoverable coal reserves in the US. 

Read more: Cases for climate justice more than doubled globally since 2017, finds UNEP

The lawsuit challenged certain provisions of the Montana Environmental Policy Act, along with provisions of the state’s energy policy that explicitly barred the State from considering the impacts of greenhouse gas (GHG) emissions or climate change, both within and beyond the State’s border while reviewing new energy projects. 

The plaintiffs argued that these provisions enabled the State to extract and promote fossil fuels-based energy systems, severely impacting their health and well-being. Hence, it violated the guarantee provided by the Constitution of Montana to a clean and healthful environment for present and future generations.

The judgment noted that the emission by the State in 2019 amounting to 166 million tonnes of carbon dioxide is not minuscule and is equivalent to emissions from countries such as Argentina, the Netherlands and Pakistan.

It further recorded that non-consideration of GHG emissions or climate change impacts while approving new fossil fuel projects has caused and contributed to injuries suffered by plaintiffs. 

The judge held these provisions to be unconstitutional.

First constitutional climate trial in US

This was the first-ever constitutional climate trial in the US history. So far, no climate accountability lawsuit has made it to trial in the US.

Regardless of the judgment getting overruled when challenged, it will definitely lead to the cropping up of more such cases across the US and will have an impact on other pending climate lawsuits in the country.

Read more: A new climate law in the Balearic Islands will protect the wellbeing of present and future generations — if such thing can be defined

One other important victory here is the recognition of climate liability within the US itself. At the international climate negotiations level, the US has been an ardent blocker of language introducing historical climate liability and compensation in final decision texts, particularly on the issue of loss and damage

This judgment will mark climate litigation as a front-runner to demand accountability.

Rulings outside the US

Climate litigation has been on the rise worldwide with 2,341 cases being filed, of which 190 were filed between May 2022 and May 2023, according to a report published by the Grantham Research Institute on Climate Change and the Environment. 

Success in climate litigation has been observed from Colombia to Germany to the Netherlands, where citizens and young people have taken their governments to court for their inadequate response to the climate crisis.  

In Colombia, the Supreme Court ordered the government to formulate and implement action plans to address deforestation in the Amazon in a case filed by youth plaintiffs in 2018.

Similarly, a Dutch environmental group sued the Dutch government for its climate inaction, the Supreme Court noted the government’s failure for not doing enough to prevent the climate crisis and ordered for reduction of GHS emissions to 25 per cent by 2020.

In Germany too, in 2020, a group of German youth challenged the Federal Climate Change Act (climate law) for its insufficient target of reducing GHG emissions.

Read more: Greece passes first climate law

In 2021, Germany’s Federal Constitutional Court struck down certain parts of the climate law and ordered the legislature to set GHG reduction targets from 2031 onwards as the climate law lacked detail on emission reduction beyond 2030. 

This increasing use of processes outside the realm of international climate negotiations to demand accountability and attain remedies is crucial. 

Climate litigation is increasingly used as an alternative forum not only within developed countries but also by individuals from vulnerable countries to demand accountability using the language of liability and compensation against the historical emitters.

Khusbhboo Pareek is an intern with the Climate Change Programme at Centre for Science and Environment and is pursuing a Masters in Science in Environmental Governance at the University of Freiburg, Germany

Views expressed are the author’s own and don’t necessarily reflect those of Down To Earth

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