Open PDF in Browser: Sam Bookman,* Breakthrough Climate Constitutionalism?
2024 was a breakthrough year for U.S. climate litigation. Perhaps surprisingly, much of this success came from state constitutional claims. At the center were two cases—Held v. Montana and Navahine F. v. Hawai‘i—which broke through several legal roadblocks to put state constitutional rights at the center of climate fights. In other states and other cases, litigation faltered but still provides important lessons for future litigants. These cases call for a reassessment of the value of state constitutional rights in climate litigation.
In this Article, I chart a middle ground between hype and skepticism. I point to four specific lessons these cases provide. First, they provide a roadmap for overcoming justiciability and causation challenges. Second, they demonstrate the value of narrow claims. Third, they show the value of carefully calibrating claims to the particular circumstances of states’ climate politics. And finally, they suggest the growing exportability of such claims to states which have not been traditional environmental rights battlegrounds.
In Part I of this Article, I outline the state of constitutional climate litigation in the United States up until 2024, as well as critiques of climate constitutionalism as a litigation strategy. Part II then lays out the significant changes from the beginning of 2024 until the time of writing in mid 2025, with a particular focus on Held v. Montana and Navahine F. v. Hawai‘i. Part III considers the limitations of these developments and acknowledges that constitutional litigation provides no magic bullet for resolving the climate crisis.
Part IV then considers what climate litigation can do. The 2024 developments should not lead to undue optimism. But they do point to the value of careful and targeted state level climate litigation and cautious embrace of state environmental constitutional amendments. As federal courts and agencies withdraw from effective climate regulation (or deepen open hostility to it), states are more important than ever. State level litigation, including constitutional litigation, may prove an important part of the climate advocacy toolbox.
Introduction
State constitutional law is perhaps an unlikely vehicle for climate justice. Climate change is a national and international challenge: No U.S. state alone can solve the problem of global warming. Furthermore, no state constitution directly addresses the threat of climate change. There are strong grounds for skepticism. Yet in 2024, state constitutional climate suits generated some cause for optimism. As the window for effective federal climate action narrows drastically[1] and federal courts resist ambitious climate claims,[2] state constitutional law might provide sites of resistance against state‑level climate rollbacks and push climate‑friendly states toward greater ambition.
In the debate over the efficacy of state constitutional climate suits,[3] this Article charts a middle path, one missing in the current literature, and engages with the most up‑to‑date jurisprudence. I neither wholly embrace the excitement generated by recent victories,[4] nor do I dismiss their significance. Instead, I parse recent decisions to identify what might be generalizable elsewhere. Joining recent trends in American constitutional scholarship, I recognize that states—rather than federal institutions—may be the laboratories of progressive jurisprudence.[5] I conclude that 2024 may represent an inflection point in state constitutional climate litigation.
This Article focuses on cases that broke new ground in 2024. It focuses primarily on two cases that received widespread attention. Held v. State, decided by the Montana Supreme Court in December 2024, is perhaps the best known.[6] To the great excitement of many commentators,[7] the Montana Supreme Court struck down amendments to Montana’s environmental laws that prevented consideration of climate impacts in permitting decisions. The second is Navahine F v. Hawai‘i, where plaintiffs reached a settlement with the state government, committing it to a range of measures taking stronger action to reduce the state’s transport emissions.[8] And in 2024, other state constitutional climate cases also raised interesting questions. State courts in New Mexico[9] and Utah[10] heard or decided cases that produced mixed results but a richer snapshot of state‑level climate litigation.
In Part I, I set out the state constitutional climate litigation landscape before 2024. While many states include environmental rights, environmental directives, or public trust obligations in their state constitutions, only a handful of narrowly focused cases had achieved clear climate‑related success before 2024.[11] Instead, most cases at both the state and local levels floundered on the rocks of preliminary and substantive challenges, including those related to standing, the political question doctrine, causation, and the merits of such claims.[12] These setbacks led one commentator to suggest that climate advocates were making a “catastrophic error” in placing too much hope in state constitutional law.[13]
Yet in Part II, I explain the changes to this picture since 2024. Plaintiffs developed strategies to overcome many of the challenges faced by earlier plaintiffs. Though not all recent plaintiffs have been successful, litigants in Held and Navahine F. made significant breakthroughs. Plaintiffs maintained a narrower focus to their challenges, presented concrete injuries that could overcome justiciability hurdles, and paid attention to the local political dynamics of their states. Unsurprisingly, not all recent plaintiffs have experienced this success. In Atencio v. New Mexico, plaintiffs successfully persuaded a trial court that their state constitution contained an unenumerated environmental right, only to be knocked back on appeal.[14] And in Natalie R. v. State, young Utahns were unable to overcome several justiciability doctrines.[15]
I acknowledge in Part III that we should not get too carried away by the success of Held and Navahine F. Both cases relied in large part on state constitutional rights that are not widely found in other states, while other recent cases (including Atencio and Natalie R.) continue to face strong headwinds. The overall impact of state constitutional climate decisions may be limited—at least until similar cases find success in other jurisdictions.
Still, in Part IV I ask what might be learned from 2024 and generalized elsewhere. I point out four important features that should be closely observed. First, I observe the significance of plaintiffs’ ability to overcome standing, causation, and justiciability hurdles and suggest what might be learned by other plaintiffs. Second, I point out the value of focused, targeted litigation, rather than the blanket approach taken by earlier litigants. Third, I argue that successful cases are often those that are attuned to the political dynamics of their state. And fourth, I argue that state‑level constitutional climate suits are more exportable to new jurisdictions than they may appear at first glance.
In Part V, I offer a nuanced conclusion. State constitutional law will not stop climate change. But in today’s bleak litigation and regulatory landscape, state constitutional suits might be a useful tool in the climate lawyer’s armory. And these cases might continue to build momentum, overlapping with other legal strategies and contributing to a movement for change. Whether they indeed do so remains to be seen. But the 2024 snapshot offers a glimpse at what might be possible, if sustained over the long run. At minimum, scholars, lawyers, and climate advocates should not prematurely dismiss the value of state‑level constitutional climate suits.
Barriers to State Constitutional Climate Claims
Climate advocates litigating constitutional suits before state courts face a plethora of barriers. Before 2024, these challenges seemed almost insurmountable. In this Part, I provide an overview of the challenges faced by litigants asserting climate‑related rights under U.S. federal and state constitutional law. In Section I.A, I survey the status of environmental provisions in state constitutions. Many state constitutions contain environmental provisions (such as directive principles or references to the public trust doctrine), and a handful contain express environmental rights. In many states, however, such rights have limited enforceability and, prior to 2024, had been applied to climate change specifically in only one state (Hawai‘i) and in only one context (the obligations of the state public utilities commission). In Section I.B, I analyze the state of constitutional climate litigation in the United States prior to 2024. Lawsuits in both federal and state courts faced significant headwinds, often related to justiciability hurdles (such as standing and the political question doctrine), or substantive challenges related to the existence and scope of climate rights, and the causal link between state action and climate harm. In Section I.C, I summarize the state of scholarly discourse before the 2024 litigation breakthroughs. While some scholars expressed optimism, there were strong grounds to believe that constitutional climate suits in the United States were at a dead end. This stage setting paves the way for the exposition of subsequent developments in Part II and an updated evaluation of constitutional climate litigation in Parts III–V.
State Constitutions and Climate Change
In some ways, state law seems an odd choice of battleground for climate litigation. Climate change is a global problem with impacts and contributors that extend beyond state borders. Yet climate change is simultaneously a local and global problem. Greenhouse gas emissions originate from specific projects and actors located in particular places and are often concentrated in jurisdictions with significant fossil fuel resources. Almost three‑quarters of crude oil produced in the United States, for example, comes from just five states[16] and 42.5 percent comes from Texas alone.[17] And the impacts of greenhouse gas emissions are also felt differently and unevenly. As the world gets hotter, different regions of the United States face different forms of vulnerability.[18] That state courts have been called upon to consider climate change contributions and impacts at the state‑specific level, therefore, is perhaps unsurprising.
Likewise, the use of constitutional law as a source of climate‑related obligations is perhaps less surprising at the state rather than federal level. State constitutions typically contain far more extensive catalogs of positive obligations.[19] These obligations—often (though not always) framed as rights—cover not only the traditional subject matter of federal constitutional law, such as free speech,[20] due process,[21] and equal protection,[22] but also social rights and obligations, such as those related to education[23] and health.[24] The U.S. Constitution, by contrast, contains no express rights‑based protections for such issues, and federal courts have resisted accepting that such rights could be implied in other provisions (such as the Fifth and Fourteenth Amendments’ Due Process Clauses).[25]
While no state constitution contains a provision specifically addressing climate change, many state constitutions do address environmental issues more broadly. Most state constitutions contain some form of environmental provision.[26] As state constitutional law scholar Quinn Yeargain has pointed out, some environmental provisions date back to the nineteenth century and establish rules related to water rights or public land management or bodies responsible for environmental protection (such as land commissions and natural resource regulators).[27] In some cases, state constitutions establish more absolute environmental protections: For instance, the “Forever Wild” clause of New York’s state constitution, enacted in 1896, requires that state forest lands be “forever kept as wild.”[28]
These early environmental provisions, while extensive, did not establish concrete fundamental rights enforceable by private citizens. In the 1970s, however, a wave of environmental consciousness prompted demands for greater state constitutional recognition and protection of environmental interests.[29] These demands were accompanied by similar campaigns related to education and labor, a set of demands that the political scientist Emily Zackin has observed as representing calls for positive rather than negative rights:[30] expectations that governments actively and positively provide social goods, rather than merely guaranteeing protection against interference by the state.[31] In this respect—as well as in their longer textual length and higher frequency of amendment—state constitutions differ significantly from their federal counterpart. It is therefore perhaps less surprising that greater success in constitutional climate litigation has come from state, rather than federal, courts.
Demands for greater environmental protection bore fruit. Many state constitutions contain environmental amendments, which Yeargain helpfully categorizes in a three‑part taxonomy: (1) express environmental rights, (2) identification of the environment as a policy of state government, and (3) codification of the public trust doctrine.[32]
First, seven states (and one unincorporated territory) have enacted amendments that codify explicit environment rights.[33] Article II, section 3 of Montana’s state constitution, for example, provides that “[a]ll persons are born free and have certain inalienable rights. They include the right to a clean and healthful environment.”[34] However, courts consistently interpreted such rights to give rise to justiciable private rights of action in only three of those jurisdictions: Hawai‘i, Montana, and Pennsylvania.[35] While most of these provisions date back to the 1970s, New York’s “Green Amendment” was enacted in 2021, and proposals for similar amendments are active in twenty‑six other states (though with varying prospects of success).[36]
Prior to 2024, in some states these environmental rights had generated some litigation success, particularly in Hawai‘i, Montana, and Pennsylvania. But for the most part,[37] these cases were concerned with traditional environmental challenges (such as water pollution and toxic substances), rather than climate change.[38] In Pennsylvania, for instance, courts found that the state could not retroactively preempt local oil and gas regulation[39] and must apply oil and gas royalties to conservation purposes.[40] In Hawai‘i, courts found that the state’s Public Utilities Commission (PUC)[41] must account for environmental impacts in its decision‑making.[42] And in Montana, courts found that the state’s environmental right demands a preventive approach to environmental protection, striking down blanket exemptions to regulation.[43] In other states, however, environmental rights have been interpreted much more narrowly.[44]
Second, in the mid‑ to late twentieth century, some states adopted provisions that identified environmental protection as a priority for state policy or directed state legislatures to protect it. Such provisions can be described as “directive principles.”[45] One example[46] is article XX, section 21 of the New Mexico Constitution, which stipulates that:
The protection of the state’s beautiful and healthful environment is hereby declared to be of fundamental importance to the public interest, health, safety and the general welfare. The legislature shall provide for control of pollution and despoilment of the air, water and other natural resources of the state, consistent with the use and development of these resources for the maximum benefit of the people.[47]
Other examples can be found, inter alia, in the constitutions of Virginia,[48] Florida,[49] Louisiana,[50] North Carolina,[51] and Michigan.[52] Such provisions, however, are generally aspirational and unenforceable, do not expressly create rights, and are not located in the rights charter sections of state constitutions (unlike, for instance, Montana’s enforceable environmental right quoted above).[53]
Third, several states have constitutionally codified the public trust doctrine. Examples can be found in the state constitutions of Washington,[54] Alaska,[55] Hawai‘i,[56] and Pennsylvania.[57] Pennsylvania’s state constitution, for instance, provides that:
The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic value of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of those resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.[58]
The public trust doctrine generally holds that the state is a trustee over certain resources, which are held in trust for the general public.[59] There is, however, some disagreement as to what resources and environmental features are covered by the doctrine. Navigable waterways[60] and tidal areas[61] have long been recognized as forming part of the public trust corpus.[62] As environmental law scholar Erin Ryan has noted, some state courts have extended recognition of public trust resources further.[63] The Pennsylvania Supreme Court, for example, in interpreting the scope of state constitutional guarantees, has extended the public trust corpus to state forests, park lands, and areas impacted by oil and gas developments.[64] Hawai‘i’s Supreme Court, meanwhile, has applied the public trust doctrine particularly expansively. It applies to all public resources in the state, including non‑navigable water resources[65] and Hawaiian traditional and customary rights,[66] and encompasses a “duty to maintain the purity and flow of our waters for future generations.” As discussed in Section II.B below, the public trust doctrine augmented the constitutional climate rights claims made by plaintiffs in Navahine F., where plaintiffs argued that the atmosphere formed part of the public trust protected under Hawai‘i’s constitution.[67]
Beyond the categories identified by Yeargain, a final potential source of governmental climate obligations may be found in more traditional, negative rights protected in state constitutions. Because the impacts of climate change are so diverse and widespread, they may intersect with traditionally protected rights in unexpected ways. For instance, substantive due process protections might encompass a right to a “climate system capable of sustaining human life,”[68] and equal protection rights might establish special obligations owed to young people or racial minorities at particular risk of the negative impacts of climate change.[69] However, as previously discussed, these arguments are yet to find favor before U.S. federal and state courts.[70] Arguments that ground climate obligations in traditional civil and political rights have, however, been accepted by many foreign courts.[71]
Constitutional Climate Litigation Pre‑2024: A Challenging Picture
Before 2024, constitutional climate litigation had largely floundered. Perhaps the most prominent of these cases was Juliana v. United States.[72] In this case (argued in federal court), a group of young plaintiffs argued that overall U.S. climate policy, by continuing to “permit, authorize, and subsidize” fossil fuels, amounted to a violation of their rights protected under the U.S. Constitution.[73] Specifically, they alleged that federal government policy amounted to a violation of their Fifth Amendment Due Process and Equal Protection rights, as well as their interests protected under the Ninth Amendment and public trust doctrine.[74] However, a divided Ninth Circuit found that these plaintiffs lacked standing.[75] Specifically, a majority of the court found that the plaintiffs’ claims could not be redressed by the judiciary, as a judicial remedy was neither likely to address the plaintiffs’ injuries, nor within the court’s power to award.[76] The merits of the claim were accordingly left unaddressed. Various attempts to revive the complaint were ultimately extinguished in May 2024, when the Ninth Circuit again dismissed the case and barred the plaintiffs from amending their complaint.[77] Another group of youth plaintiffs brought federal constitutional claims against the Environmental Protection Agency for failing to address climate change—this claim, Genesis B. v. EPA, was dismissed by a California district court in April 2024,[78] with an amended complaint likewise dismissed in February 2025.[79] In both cases, the courts determined the plaintiffs lacked standing because their claims were not redressable by an Article III court.
In state courts, claims directly concerning constitutional climate rights had fared only somewhat better. While constitutional environmental litigation had enjoyed some success (especially in Hawai‘i, Montana, and Pennsylvania),[80] there was little extension of environmental rights and interests to climate change specifically. Prior to 2024, advocates for state constitutional claims could point only to three narrow victories, all from the Hawaiian Supreme Court.[81] All three specifically related to the decision‑making obligations of Hawai‘i’s PUC, and the extent to which climate considerations could form part of its decision. In the 2017 case In re Maui Electric Co., the court held that the Hawaiian Constitution established a property interest in a clean and healthful environment, and that such interest attracted due process protections—including a requirement that Hawai‘i’s PUC give “express consideration . . . to [the] reduction of greenhouse gas emissions” in its decision‑making process.[82] The court affirmed that holding in 2019 in the case In re Haw. Elec. Light Co., concluding that the PUC owed due process obligations toward environmental plaintiffs.[83] And in the 2020 case In re Gas Co., Hawai‘i’s Supreme Court held that the PUC had erred in not sufficiently considering the need to reduce greenhouse gas emissions.[84] While significant, in all three cases the application of Hawai‘i’s environmental rights provision was limited to the decisions of a single body in a narrow (and highly procedural) decision‑making context.[85]
The Challenges of Climate Litigation
Climate litigation poses significant challenges. This has not deterred all plaintiffs. Battles over federal climate policy,[86] accounting for climate costs and risks,[87] and the duties of large polluters[88] have long raged in federal courts, including the United States Supreme Court. Claims brought under state statutory and common law are likewise increasingly widespread.[89] Yet unlike those brought in many foreign jurisdictions,[90] cases grounded in constitutional law have offered little success. This is not for lack of trying. Constitutional complaints against state and federal governments, alleging the violation of constitutional rights and interests arising from insufficient climate action, have proliferated across the United States.[91]
Many of these suits—including both Juliana and Genesis B.—are supported by a single nonprofit, Our Children’s Trust (OCT). Based in Oregon but active throughout the United States (and internationally), OCT supports litigation by youth plaintiffs with the aim of establishing “enforceable legal rights to a healthy atmosphere and stable climate, based on the best available science.”[92] The claims advanced in cases supported by OCT are often ambitious. They typically seek sweeping relief: In addition to orders declaring interference with constitutional rights,[93] plaintiffs often seek injunctive relief enjoining government defendants from continuing existing conduct, striking down provisions of legislation or government programs, and awarding orders “to prepare and implement” national or state‑level “remedial plan[s] to phase out fossil fuel emissions and draw down excess atmospheric CO2 so as to stabilize the climate system.”[94] Perhaps most ambitiously, plaintiffs frequently call on courts to (for example) “[r]etain jurisdiction . . . to monitor and enforce Defendants’ compliance” with such remedial plans.[95]
In such suits, plaintiffs face significant procedural and justiciability challenges before courts even reach the merits of their arguments. First, they must demonstrate they have standing: They have experienced a concrete injury, attributable to the defendant government’s conduct, and redressable by the court.[96] Climate change presents significant challenges at all stages of this analysis. It is a large‑scale, slow‑moving process created by many different actors. This makes it very hard to prove immediate and concrete harm to a particular defendant—as is attributing it to any single defendant (or group of named defendants). Furthermore, because climate change is a global problem, the prospect of any state government or agency being able to “redress” its harms in response to a judicial remedy is inevitably limited. In Juliana v. United States, for example, the Ninth Circuit Court of Appeals determined that youth plaintiffs could not satisfy this final limb of standing analysis: “[I]t is beyond the power of an Article III court to order, design, supervise, or implement the plaintiffs’ requested plan.”[97] To provide the plaintiffs with their requested relief—an extensive government‑wide policy plan to comprehensively address climate change—“would necessarily require a host of complex policy decisions entrusted, for better or worse, to the wisdom and discretion of the executive and legislative branches.”[98]
Second, plaintiffs must reckon with the political question doctrine: In other words, whether the matter is appropriate for judicial, rather than political, consideration. Whether a case presents a nonjusticiable political question is complex and multifactored. It will often boil down to factors such as whether a judge can identify judicially “manageable standards” for resolving the dispute and whether such a dispute can be resolved with “respect due coordinate branches of government.”[99] Yet the sweeping nature of such constitutional climate suits often render them vulnerable to political question‑related objections. Any judicial order that requires a government to overhaul its climate policy will likely require a clear directive as to how such an overhaul will take place, a clear standard of what type of action or level of greenhouse gas emission reduction is required, and ongoing judicial supervision of any order. Several state courts have balked on political question grounds.[100] In Kanuk v. Alaska, for example, the Alaska Supreme Court accepted that plaintiffs had standing to argue Alaska’s climate policies violated the state constitution but ultimately found the question of climate policy to be a nonjusticiable political question.[101] The Court concluded that “[t]he limited institutional role of the judiciary supports a conclusion that the science‑ and policy‑based inquiry here is better reserved for executive branch agencies or the legislature.”[102]
Redressability and political question hurdles are related: They both ultimately bear on whether the dispute is appropriate for judicial resolution or best left to the political branches. Thus, in Juliana, even as the court ultimately determined the dispute on redressability grounds,[103] the Ninth Circuit drew on political question jurisprudence in confirming that courts “‘have no commission to allocate political power and influence’ without standards to guide in the exercise of such authority.”[104]
These justiciability challenges mean that U.S. courts rarely even consider the merits of constitutional climate challenges. Yet the merits raise difficulties every bit as challenging.
First, plaintiffs must point to a constitutional right or interest related to the environment or to climate action, such as a right to a “climate system capable of sustaining human life.”[105] No such express right exists in any federal or state constitution. At the federal level, plaintiffs have argued that climate rights might arise from the Ninth Amendment[106] or Substantive Due Process Clause of the Fifth Amendment.[107] Making such claims at a time when expansive interpretations of the Substantive Due Process Clause are waning is an ambitious goal.[108] Other efforts, such as locating such a right in the public trust doctrine, have proven equally difficult, particularly in those states that do not expressly recognize environmental rights, directive principles, or constitutional public trust obligations.[109]
Second, even where state constitutions include an environmental right, plaintiffs must demonstrate it extends to climate change and to the specific relief requested by plaintiffs. It is not self‑evident that a constitutional provision protecting a “clean and healthy environment” extends to greenhouse gas emissions. Even in states with a preexisting history of environmental rights litigation, such litigation has generally concerned localized environmental impacts of mining or pollution.[110] Plaintiffs must persuade the court that the protected environmental rights or interests extend to the novel subject matter of climate change—a problem which, as discussed below, poses far greater transboundary challenges than many other environmental harms. Plaintiffs must furthermore show that such rights entitle them to the sweeping relief claimed. In Funk v. Wolf, for example, a Pennsylvania court rejected a claim that the state’s climate policy violated the commonwealth’s environmental rights provision,[111] finding that it did not require the state to establish a comprehensive greenhouse gas regulation plan.[112] The court affirmed that the right “was not intended to be read in absolut[e] terms,”[113] nor did it authorize the respondent government agency to “disturb the legislative scheme” in place in Pennsylvania.[114] In other words, even if such a right is recognized, and even if such a right extends to climate change, it is not self‑evident that a court will interpret that right as requiring the remedies sought.
Third—and related to the justiciability challenges outlined above—plaintiffs must demonstrate causation. Yet establishing that the actions of any U.S. state have materially caused injury to a plaintiff is a daunting task. Climate change can cause harm in many different ways: through increased temperatures, heatwaves, and wildfires; higher frequency of extreme weather events; rising sea levels and glacial melt; or effects on water systems, such as drought or ocean acidification.[115] These environmental effects in turn can impact human health (including mental health) or lead to physical and economic loss. Some populations (such as young people, coastal communities, or those with existing vulnerabilities) are at an elevated risk.[116] But demonstrating that any such harm is attributable to the acts or omission of any single state government is extremely challenging. No U.S. state government can be said to have “caused” climate change by itself. Rather, climate change is the product of the actions of a myriad range of governments, corporations, and individuals. Such contributions are, of course, highly uneven. But if the standard applied by courts is that of direct and exclusive contribution, climate plaintiffs are unlikely to succeed.
Climate law scholar Jacqueline Peel helpfully breaks down this causation problem into a set of subproblems.[117] The first is the “drop in the ocean” problem.[118] The economic activities of any given state—let alone those attributable to a state government—are insufficient, by themselves, to cause the level of climate change that will have given rise to plaintiffs’ injuries. This problem often informs courts’ standing analysis discussed above: Because many emissions come from parts of the world beyond any given jurisdiction, any relief awarded by a single domestic court will fail to redress the injury. The second issue is the “death by a thousand cuts” problem.[119] To the extent that any injury is attributable to a state government’s acts or omissions, it will not be because of a single act or omission. Instead, it will likely be related to a pattern of conduct over a long period of time, such as granting permits for fossil fuel expansion or failing to develop plans for state reductions in greenhouse gas emissions. Establishing a clear causal pathway from the defendant’s actions to the plaintiff’s harm is therefore challenging. To overcome this problem, some plaintiffs (such as those in Juliana) have tried to challenge all government acts and omissions as rights violations, only to find that this produces an argument too ambitious and unwieldy. Third, there are challenges of proof: Quantifying a defendant’s greenhouse gas emissions and translating that into a share of global emissions is a challenging empirical endeavor.[120] And finally, there is what Peel calls the “how many links in the chain?” problem.[121] Any causal link between the defendant’s actions and the plaintiff’s injury is likely to be complex and multifaceted.[122] It will involve: emissions of greenhouse gases caused by the state’s activities (or more commonly, failure to regulate private activities); those emissions mixing with greenhouse gases in other parts of the world; those emissions resulting in elevated temperatures; those elevated temperatures resulting in changes to weather patterns, sea levels, and water systems; and those changes in turn causing harm to the particular plaintiff before the court. It is unsurprising, therefore, that so many cases have failed to gain traction under state constitutional law.[123]
Where Things Stood: Critiques of Pre‑2024 Constitutional Climate Litigation
Before 2024, state constitutional climate rights were at a crossroads. While some broader environmental rights claims had experienced some success (especially in Hawai‘i, Montana, and Pennsylvania), few cases had extended that jurisprudence to climate‑related issues. Courts in Pennsylvania and Montana had been largely resistant to extending their pollution jurisprudence to climate change.[124] And the situation outside these states was even less promising. A glimmer of hope came in 2023, when in Held v. Montana a trial court struck down a particularly egregious state law.[125] At the time, however, the decision remained isolated and vulnerable to appeal.
This track record of failure, and the significant procedural and doctrinal challenges faced by state constitutional climate litigation, has led some scholars to question whether such cases are worth the trouble. Quinn Yeargain has argued “against environmental rights supremacy.”[126] While acknowledging that environmental rights‑based litigation might “tinker [with] environmental policies,” it “fall[s] far short of the litigants’ goals.”[127] For Yeargain, doctrinal challenges such as redressability and the political question doctrine amount to insurmountable challenges which render future litigation undesirable.[128] Even the Held lower court decision, decided in 2023, is criticized by Yeargain as “overblown”[129] and far narrower than much of the public and scholarly reaction to the decision suggests.[130]
Another critique is offered by Amber Polk, an environmental law scholar. Canvassing environmental rights cases across several states, Polk argues that pre‑2024 decisions were ultimately concerned with procedural rights and access to justice, rather than substantive mandates for improvements in environmental quality or regulation.[131] She suggests, therefore, that “the current state of environmental constitutionalism in the United States is far weaker for achieving environmental goals than the political discourse around the movement would suggest.”[132]
As I will argue below, Yeargain and Polk’s skepticism of state courts’ receptiveness to climate‑related claims is challenged by developments in 2024. But they are right to observe that many of these successes are narrower than their plaintiffs might have hoped for. I suggest, however, that the narrowness of potential claims and the remedies available should not be a reason to dismiss their value.[133]
On the other hand, some other commentators have remained extraordinarily bullish. James May, a scholar and proponent of environmental rights, has argued that state constitutions offer a more promising alternative to federal constitutional climate claims.[134] While acknowledging that the pre‑2024 experience in the United States had proved challenging for plaintiffs, May nevertheless suggests a range of innovative strategies grounded in state‑level rights to life,[135] dignity,[136] and a range of socioeconomic rights.[137] May argues that state‑level environmental rights permit local flexibility and experimentation[138] and that pursuing climate rights through state constitutions builds on a rich history of state courts taking on challenging social and economic issues.[139]
Before 2024, there were strong reasons to doubt the usefulness of state constitutional law in addressing climate change. But assessments in either direction may have been premature. After several years of frustration for plaintiffs, 2024 was the year that constitutional state climate litigation finally achieved some success. These breakthroughs require a reassessment of the earlier debate.
What Happened in 2024?
Constitutional climate suits face stiff challenges. A range of doctrinal hurdles—including those related to standing, causation, and the political question doctrine—stand in the way of success for plaintiffs. Before 2024, there were few signs of success. But the last two years have changed the picture somewhat. In this Part, I set out the 2024 developments. Two cases have definitively bucked the earlier dismal trend of constitutional climate cases: Held v. Montana and Navahine F. v. Hawai‘i. I also consider two other cases with less obviously positive outcomes: Atencio v. New Mexico and Natalie R. v. Utah. Each of these cases provides insight into how state constitutional law might contribute to climate action and how litigants in other states might draw on their own state constitutions. After setting out the cases in this Part, I acknowledge their limitations in Part III, before examining their lessons in Part IV.
Held v. Montana
The Trial Court Decision
Enter Held v. Montana. The case was filed in 2020 by a group of young Montanans aged between two and eighteen at the time of filing.[140] Like many such cases, the plaintiffs’ initial complaint and request for relief was wide ranging. Plaintiffs asked the court to strike down a range of state laws and actions and order a remedial plan with ongoing court supervision.[141] The case, however, gradually narrowed in focus.[142] Many aspects of the plaintiffs’ case were dismissed on mootness grounds (as some challenged statutes were repealed), while the requested remedial plan was found to involve a nonjusticiable political question.[143]
By the time the case came to trial, it concerned a much narrower challenge to two provisions of Montana’s Environmental Policy Act (MEPA).[144] The first was widely known as the “MEPA Limitation.”[145] This was a statutory provision first enacted in 2011 which prohibited state agencies, those that conducted environmental reviews, from considering environmental impacts beyond the state’s borders.[146]
The MEPA Limitation is significant in a coal‑rich state such as Montana[147] for three reasons. First, while coal mines and infrastructure have localized environmental impacts (on water and biodiversity, for example), they also significantly contribute to global greenhouse gas emissions. Coal extracted from mines is subsequently burned for energy and industrial processes, releasing greenhouse gases into the atmosphere at a far higher rate of intensity than renewables or other types of fossil fuels (such as natural gas).[148] Second, most of Montana’s coal is exported and burned beyond Montana’s borders.[149] The volume of greenhouse gases released in Montana itself is relatively modest.[150] But the volume of greenhouse gases produced by Montanan coal abroad is much higher, as 60 percent of Montana’s coal is exported abroad.[151] Third, the impacts of elevated greenhouse gas emissions on the state of Montana caused by Montana coal, burned in Montana, are non‑negligible—but they are much lower than the impacts caused globally by the contribution of Montana coal to global emissions. Simply put, Montana only makes up a small portion of the world’s population, yet emissions from its coal (like all greenhouse gas emissions) quickly spread throughout the Earth’s atmosphere. For these reasons, the MEPA Limitation substantially reduced the anticipated cost of fossil fuel projects (such as coal mine expansion or development) by restricting such costs to those related to the climate impacts within Montana—and arguably, only those fossil fuels burned within the state. This meant that when making permitting decisions regarding fossil fuel infrastructure, the climate costs of such projects would more likely be outweighed by possible benefits (such as employment and economic growth) and, ultimately, approved.
In 2023 the MEPA Limitation was extended even further. Nervous about emerging litigation,[152] the Montana legislature enacted House Bill 971, which prevented consideration of any climate impacts by state permitting agencies.[153] A few days later, the legislature also enacted Senate Bill 557.[154] The bill starkly provided that courts could not “vacate, void, or delay” proposed projects on climate grounds.[155]
As noted above, article II, section 3 of the Montana Constitution protects “the right to a clean and healthful environment.”[156] The right has a pedigree and associated jurisprudence. It was first enacted in 1972 and in 1999 was recognized by Montana’s Supreme Court as a “fundamental right” warranting strict scrutiny review, part of the first category of rights identified in Section I.A above.[157] The existence of such a right aided the plaintiffs and made the case far easier to run than it would have in many other U.S. states. The plaintiffs did not bear the burden of establishing that their state constitution contained a fundamental environmental right or that it was implied by other rights. Prior to Held, however, the environmental right had never been applied specifically to climate change.[158]
The trial court found in favor of the plaintiffs. The court’s opinion began by reinforcing the consensus that global warming represents “anthropogenic changes in the environment, not natural variability.”[159] Crucially, given the standing and causation challenges outlined previously,[160] the court accepted that climate change harmed young people, the state of Montana, and the plaintiffs in particular. Significantly, the court accepted that young people were distinctly affected by climate change—not only because they will live longer in a heating world, but also because of present harms.[161] “[C]limate change is already harming plaintiffs,”[162] the trial judge determined, through changes to the local environment as well as physical and mental harms[163]—many of which have greater effects on particular groups, including those represented by the plaintiffs (anxiety‑related mental health impacts on children, for example, and impacts on Native American cultural practices).[164] The court surmised that “because of their unique vulnerabilities, their stages of development as youth, and their average longevity on the planet in the future, Plaintiffs face lifelong hardships resulting from climate change.”[165]
This conclusion—that the plaintiffs were harmed by climate change—proved significant in the court’s legal analysis. So too was the court’s evidentiary finding that Montana had contributed to global climate change and to the children’s injuries. The court largely accepted the plaintiffs’ evidence on this point. The State provided only one expert witness—an economist, not a climate scientist.[166] The court found his evidence was “not well‑supported, contained errors and not given weight by the Court.”[167] The court found that when fossil fuel extraction, processing, transportation, and consumption were taken into account, Montana was responsible for the emission of 166 million tons of carbon dioxide annually,[168] more than three times the volume of greenhouse gases burned within the state.[169] Overall, the court accepted evidence that greenhouse gas emissions resulting from fossil fuels extracted in Montana were higher than those of many large countries, including Brazil, Japan, Mexico, Spain, and the United Kingdom.[170]
Significantly, the trial court did not leave things there. It laid at least some of the blame on the Montana state government’s permitting and licensing policies and observed that there remain many more untapped fossil fuels in the state.[171] Ultimately, the court surmised that “[w]hat happens in Montana has a real impact on fossil fuel energy systems, carbon dioxide emissions, and global warming.”[172]
Because Montana’s environmental right is subject to strict scrutiny review, this prima facie violation of the right was unlikely to be rescued by any balancing of interests.[173] Instead—and without much analysis—the court found that the environmental right extended to protection of the climate[174] and that the state owed an affirmative duty “to take active steps to realize this right.”[175]
The Montana Supreme Court Decision
Montana’s government quickly announced it would appeal the decision to Montana’s Supreme Court.[176] The trial court’s decision, however, was emphatically upheld in a 6‑1 ruling.[177]
First, the court affirmed that Montana’s fundamental environmental right includes “a stable climate system that sustains human lives and liberties.”[178] Significantly, the court reached this conclusion through an originalist yet progressive constitutional interpretation. Montana’s environmental constitutional right is a product of Montana’s 1972 constitutional convention.[179] Though a relatively recent provision, it nevertheless predated widespread recognition of anthropogenic climate change, and the record of the 1972 convention therefore did not expressly recognize such rights. Nevertheless, the court held that “our Constitution does not require the Framers to have specifically envisioned an issue for it to be included in the rights enshrined in the Montana Constitution.”[180] Instead, the court quoted longstanding precedent which held that “[a] Constitution is not a straight‑jacket, but a living thing designed to meet the needs of a progressive society and capable of being expanded to embrace more extensive relations.”[181] The court discussed several examples of expansions over time, such as the translation of nineteenth‑century criminal procedure[182] and free speech rights[183] in the context of cyberspace and new technologies. “Should pollutants not in existence or fully understood in 1972 be exempted from the right to a clean and healthful environment just because the Framers did not specifically contemplate them?” the court asked.[184] The answer: “We think not.”[185]
The court’s reasoning, while progressive, is simultaneously originalist. The framers themselves, the court reasoned, envisioned a right to a clean and healthful environment that is “forward‑looking and preventative,” and which would reflect “the strongest possible environmental protection provision found in any state constitution.”[186] And the court emphatically repeated the trial court’s determination that climate change affects the state of Montana in several key ways: glacial loss; declining snowpack and stressed water supplies; impacts on cold‑water fish; economic loss to the ski industry; loss of wildlife habitat; extreme heat and weather effects on human health; and expanding diseases such as West Nile virus.[187] The court particularly stressed the impacts on Montana landmarks and asserted that climate change “does impact the clear, unpolluted waters of the Bob Marshall wilderness; it does impact the availability of clear water and clear air in the Bull Mountains; and it does exacerbate the wildfire stench in Missoula, along with the rest of the State.”[188] Remarkably, the court was able to reach this conclusion in large part because, at trial, one of the framers was able to offer evidence as to her own intent and that of other Convention delegates—something made possible by the right’s relatively recent provenance and very different to originalist methodologies available in interpreting the federal U.S. Constitution.[189]
Next, the court dealt with the question of standing. Although the court observed that to establish standing, plaintiffs’ injuries should usually be “distinguishable from injury to the public generally,”[190] plaintiffs that allege constitutional injuries “need not demonstrate a personal stake in the specific policy at issue or an injury beyond being deprived of his constitutional rights” (in this case, the right to a “clean and healthful environment”).[191] Interestingly, however, the court cited the United States Supreme Court’s decision in Massachusetts v. EPA to support its conclusion: The fact that “climate‑change risks are ‘widely shared’ does not minimize” a plaintiff’s interest in the litigation.[192] Departing from the dissent—which would have held that the large number of persons injured by climate change meant the plaintiffs’ injuries were not sufficiently particularized—the majority instead observed that an overly restrictive approach to standing would be perverse. By barring standing precisely in cases where injury is widespread, “the most injurious and widespread Government actions could be questioned by nobody.”[193] The court also pointed out that the injury in the case was not climate change writ large or a generalized failure to protect but the specific actions of the defendant government in enacting the MEPA Limitation:[194] actions which, by preventing consideration of climate impacts, “actively causes the constitutional harm by statutory mandate.”[195] Unlike the district court—which closely tied its injury analysis to specific, particularized injuries experienced by the plaintiffs—the Montana Supreme Court appeared to apply a more flexible threshold. Because Montana’s environmental right was “directed at the public and persons generally,”[196] it conferred upon the plaintiffs “a right to judicial relief. Thus, the constitutional harm . . . is concrete, though it is widely shared.”[197]
Having established that the plaintiffs could point to a deprivation of their constitutional rights, the court then considered the second and third limbs of standing analysis: causation and redressability. The court largely considered these two issues together. The court framed the crux of the issue as being not whether “the MEPA Limitation has in fact caused climate change,” but rather “whether the challenged statute is a cause of, or is likely to cause, an unconstitutional infringement on [plaintiffs’] right to a clean and healthful environment.”[198] While the defendant government argued that plaintiffs could prevail only if plaintiffs established that the MEPA Limitation was the “sole cause” of their injury, the court characterized such an argument as contrary to “decades of jurisprudence from this Court and the United States Supreme Court”—instead, an injury “is redressable even if it does not redress the injury in full.”[199] The majority instead focused the issue on a much more straightforward question: “whether the MEPA Limitation unconstitutionally infringes on Plaintiffs’ right to a clean and healthful environment.”[200] In other words, “the question is whether legal relief can effectively alleviate, remedy, or prevent Plaintiffs’ constitutional injury, not on whether declaring a law unconstitutional will effectively stop or reverse climate change.”[201] And on this question, the court was satisfied that the plaintiffs’ injuries were redressable: Striking down the MEPA Limitation would indeed prevent the Montana state government from contributing to the plaintiffs’ injuries, which in turn constituted a violation of their state constitutional rights.[202]
As with the trial court’s decision, the resolution of these preliminary issues (and standing in particular) produced a relatively straightforward conclusion on the merits. Having already established that the plaintiffs’ climate‑related injuries were real and distinguishable, had been caused by the defendant government, and could be addressed by the court, the merits of the case essentially boiled down to strict scrutiny analysis. While the court accepted that Montana’s greenhouse gas emissions constitute a small fraction of global emissions, the majority was nevertheless persuaded that the MEPA Limitation would prevent the state from even considering climate impacts, clearly infringing on the plaintiffs’ constitutionally protected rights to a clean and healthful environment.[203] Having established that the right was engaged, the court determined that, even if the state could demonstrate a compelling interest in the law (such as protection of property interests), the MEPA Limitation was not narrowly tailored to such an interest.[204] The law was accordingly struck down and the state was “enjoined from acting in accordance with it.”[205]
The Complaint
The Navahine F. case began in 2022, when fourteen young Hawaiians filed a complaint alleging that Hawai‘i’s state transportation policies amounted to a violation of the state’s environmental constitutional guarantees.[206]
Unlike the Montana Constitution—which contains a straightforwardly self‑executing environmental fundamental right[207]—Hawai‘i’s Constitution contains two relevant, though more complex, environmental provisions, which contain elements of each of the three categories identified above: an express environmental right, a directive principle, and a codification of the public trust doctrine.[208] Article XI, section 1 (the “environmental directive provision”) directs the state, “[f]or the benefit of present and future generations,” to “promote the development and utilization of [its] resources in a manner consistent with their conservation and in furtherance of the self‑sufficiency of the State.”[209] The Navahine F. plaintiffs argued that this right gives rise to a public trust obligation over the state’s natural resources, including its atmosphere.[210] The provision, however, does not expressly create a right, much less a self‑executing one. Article XI, section 9 (the “environmental rights provision”), meanwhile, more directly provides that “[e]ach person has the right to a clean and healthful environment,” which may be enforced “against any party,” but only “as defined by laws relating to environmental quality,” and “subject to reasonable limitations and regulation as provided by law.”[211] Whether the right extends beyond statutory environmental protections, therefore, has long been the subject of litigation and confusion.[212]
The Navahine F. plaintiffs argued that the two provisions together established a protected constitutional right and a corresponding obligation on the state government to establish a rights‑compliant state transport system.[213] In other words, the plaintiffs argued that these provisions produced positive rights: rights which imposed affirmative obligations on the state government to secure the right for its citizens. Furthermore, in arguing that the atmosphere constituted part of a public trust, the plaintiffs argued that the government owed trustee‑like obligations to care for it for future generations. Rather than “projects that enable multi‑modal travel, electrification of transportation, and the use of alternative fuels,” the plaintiffs alleged that the state Department of Transportation “engaged in an ongoing pattern and practice of promoting, funding, and implementing transportation that lock in and escalate the use of fossil fuels.”[214] They sought a declaration that Hawai‘i’s state transportation system, “and its resulting greenhouse gas pollution and climate harms” (which make up a significant proportion of the state’s overall emissions),[215] violated their rights and sought “injunctive relief as necessary to rectify Defendants’ violations and bring the state transportation system into constitutional compliance based on the best available science.”[216]
Strikingly, the plaintiffs admitted that Hawai‘i’s government was “a leader in acknowledging the gravity of the dangers of climate change and has enacted various laws aimed at the crisis.”[217] Indeed, Hawai‘i is among several U.S. states with a statewide emissions target—in its case, a target of reaching net‑negative carbon emissions by 2045.[218] In this respect, the Navahine F. plaintiffs were positioned very differently to those in Held. Rather than challenging a measure clearly designed to inhibit action on climate change, the plaintiffs accepted that the defendant state government at least aspired to cut its emissions. Yet they nevertheless argued that such action was insufficient to comply with protected constitutional rights and statutory targets. The political alignment of the plaintiffs and the state government meant that the chances for a settlement in Navahine F. were substantially higher than those in Held.
The Motion to Dismiss
Hawai‘i’s state government quickly moved to dismiss the complaint. This motion, however, was denied by Hawai‘i’s First Circuit Court.[219] The court emphasized that such motions should be granted only in rare circumstances.[220] The court considered it at least plausible that the climate might form part of the public trust entrusted to the state under article XI, section 1 of the state constitution (the environmental directive provision) and affirmed that the state had a duty to maintain it.[221] But in any event, the court pointed out that the plaintiffs were not required to establish that “climate” might form part of Hawai‘i’s public trust resources: Rather, it was sufficient for plaintiffs to point out that “deteriorating climate . . . impacts our natural resources” already recognized as forming part of the public trust.[222] The court instead characterized the state’s position as being that “it is not required to do anything because the problem is just too big and the State’s efforts will have no impact.”[223] The court roundly rejected this position.[224] Such a position was untenable, the court reasoned, given the strength of public trust obligations: “It is ‘elementary trust law’ that trust property not be permitted to ‘fall into ruin on [the trustee’s] watch.’”[225] The court further emphasized Hawaiian state precedent which emphasized that public trust obligations can extend beyond duties prescribed in statute—in other words, the absence of clear and specific statutory directives to decarbonize Hawai‘i’s transport system did not necessarily obviate the state’s constitutional duty.[226]
The court then considered the plaintiffs’ second claim under the article XI, section 9 environmental right provision—the guarantee that “[e]ach person has the right to a clean and healthy environment,” but only “as defined by laws relating to environmental quality.”[227] In earlier cases, Hawai‘i’s Supreme Court has confirmed that the right “is not a freestanding interest in general aesthetic and environmental values.”[228] But where environmental interests are otherwise protected under state law, article XI, section 9 extends those interests by guaranteeing their protection under constitutional law.[229] In this case, the court found several state statutes that protected climate‑related interests in the state transportation system, which were in turn transformed into enforceable rights under article XI, section 9.[230] This included section 225P-5, Hawai‘i’s overall Zero Emissions Target Law, which establishes the goal of achieving net‑negative emissions by 2045. Though the defendants argued that such laws are merely “aspirational” or insufficiently specific, the court instead claimed to “give[] the Legislature a lot more credit than that”: Rather than vague targets or directives, such laws instead demonstrate “the Legislature is requiring timely planning and action, not meaningless or purely aspirational goals.”[231]
The court likewise made short shrift of defendants’ argument that the plaintiffs lacked standing. Indeed, it observed that under the state’s declaratory judgments jurisprudence, plaintiffs did not need to establish the equivalent of federal law’s injury‑in‑fact requirement but rather only that they held a concrete interest denied by the defendant and that a declaratory judgment would “terminate the controversy.”[232] The court pointed out the interest of “future generations” established in article XI, section 1 (the constitution’s environmental directive provision), identified the natural interest as a concrete interest held by the plaintiffs, and observed that a declaratory judgment could help resolve the dispute.[233] The court likewise rejected the possibility that the dispute amounted to a nonjusticiable political question. Instead, it determined that awarding declaratory relief would not raise political questions—any political question issues could be considered in relation to requests for an injunctive relief at a later date.[234]
The Settlement
The court denied the defendant’s motion to dismiss in April 2023. Instead, a trial was set to begin on June 24, 2024.[235] However, four days before the trial date, Hawai‘i’s governor announced a settlement with the plaintiffs.[236] While Hawai‘i’s government does “not admit to any liability or wrongdoing and do[es] not concede any factual or legal issue,”[237] the settlement acknowledges that the Department of Transportation “must perform its statutory function in a manner that fulfills the State’s affirmative constitutional obligations,”[238] and accepts that existing state laws “require the State to increase energy efficiency, develop an integrated multi‑modal transportation system, and reduce greenhouse gas (“GHG”) emissions.”[239] The settlement further acknowledges that the plaintiffs possess rights under article XI, section 9 of the state constitution (the constitution’s express environmental right provision) and that such a right “subsumes a right to a life‑sustaining climate system.”[240] While the settlement does not define the atmosphere as forming part of the public trust, it does accept that “[t]he State’s public trust considerations include ‘those related to protection of air and other trust resources affected by climate change.’”[241]
The settlement goes further than identifying preexisting legal obligations. It specifically sets out a state plan for transport decarbonization. Among other measures, the state agreed to: set five‑yearly interim targets for its overall 2045 greenhouse gas emission reductions,[242] as well as particular carbon reduction measures (such as reductions in vehicle miles traveled, expansion of public transport, and increased electrification);[243] within one year, establish a statewide plan to reduce transport‑related emissions, with several opportunities for the plaintiffs to provide feedback and comments;[244] include consideration of marine and aviation decarbonization (major contributors to Hawai‘i’s overall emissions);[245] and commit to reviewing decarbonization plans every five years.[246] The settlement also includes an acknowledgement of factors necessary for a greenhouse gas reduction plan to succeed (such as additional legislative resourcing and coordination with other departments) and a commitment by the Department of Transportation to secure these needs.[247] Finally, the government defendants committed to revising Hawai‘i’s transport budgeting program to prioritize cuts to greenhouse gas emissions,[248] establish a new unit within the Department of Transportation to lead climate mitigation work,[249] and fast‑track electric vehicle, public transit, and carbon sequestration efforts.[250]
Hawai‘i’s governor, Josh Green, cast the settlement as an acknowledgement of “the constitutional rights of Hawai‘i’s youth to a life‑sustaining climate,” and lauded the agreement as “the first settlement of its kind, in which state government entities have decided to work with youth plaintiffs to address concerns regarding constitutional issues arising from climate change.”[251] Describing the agreement as a “roadmap” to transport decarbonization, Governor Green praised the agreement as “confirm[ing] Hawai‘i’s position as one of the leading states in the nation” on climate action.[252]
Navahine F. differs in many respects from Held. Rather than wielding constitutional climate rights directly in response to specific, egregious state action (such as Montana’s MEPA Limitation), the Navahine F. plaintiffs used Hawai‘i’s environmental constitutional provisions to challenge a lack of executive action. Indeed, much of their argument hinged on such action being required by state statutes, which in turn established the plaintiffs’ constitutional interest in bringing the action. Furthermore, their case ultimately relied on the state government’s willingness to take affirmative steps to reduce carbon emissions.
One important difference between the two cases is the political climate of each state. Litigation against a climate‑skeptical government (such as Montana’s) requires different considerations to those against a more sympathetic state government (such as Hawai‘i’s). This is relevant to the types of remedies sought, and how they might realistically be implemented. Judicial enforcement of complex structural constitutional remedies, such as those agreed to in the Navahine F. settlement, is notoriously difficult.[253] To impose such an agreement on a hostile government requires close judicial scrutiny, often necessitating the appointment of a Special Master or protracted follow‑up litigation.[254] Where they anticipate friction between the political and judicial branches, courts may be wary of granting such relief: Indeed, in rejecting the Navahine F. motion to dismiss, the presiding judge nevertheless warned that specific relief sought by the plaintiff could implicate the political question doctrine.[255] The highly procedural nature of the remedies sought and ultimately agreed to—the establishment of new targets, planning processes, and budgeting—provides ample cover for state agencies to move slowly and ultimately develop policies with little chance of implementation. The ultimate success of the Navahine F. settlement will depend in large part on the Hawai‘i Governor, Department of Transportation, and other executive agencies seeking political gain to be had in advancing the settlement agreement and ultimately implementing it fully. Governor Green’s enthusiastic presentation of the settlement agreement as a win for the state contrasts with the political reaction to Held in deep‑red Montana, where the decision was met with threats against the judiciary by prominent state politicians.[256] The contrasting decisions suggest that different political circumstances might necessitate different litigation strategies in state constitutional climate suits.
Strong Headwinds Remain: Natalie R. and Atencio
Held and Navahine F. represent the high‑water mark of state constitutional climate litigation. They provide the most unambiguous support for its potential. But 2024 also saw several cases with more mixed results for constitutional climate suits. In Natalie R. v. State (a case heard in 2024, though decided in 2025), plaintiffs were rebuffed by the Utah Supreme Court. And though 2024 saw an important win for plaintiffs in Atencio v. New Mexico, they would be knocked back on appeal a few months later. These cases complicate the picture that has emerged from recent state constitutional climate litigation.
Natalie R. v. State
Natalie R. v. State involved a challenge by seven young Utahns to several Utah statutory provisions, as well as more specific decisions of Utah state officials.[257] The challenged laws included: sections of Utah’s Energy Act and Oil and Gas Conservation Act, which described Utah’s energy policy as promoting fossil fuel development; a legislative finding in Utah’s mining regulation describing coal mining as “essential”; a provision in Utah’s mining code that required that mining operations “maximize the utilization and conservation of the solid fuel resource being recovered”; and an interpretive directive in Utah’s Oil and Gas Conservation Act, directing that it never be interpreted to restrict oil and gas production.[258] The laws established or affirmed fossil fuel extraction as a state priority[259] or minimized competing concerns.[260] The government conduct included actions by various agencies to promote fossil fuel extraction.[261]
Unlike the state constitutions of Hawai‘i and Montana, Utah’s state constitution contains no express environmental right. Instead, plaintiffs were forced to rely on more traditional rights‑based claims—in this case, those related to life and liberty.[262] They argued that the challenged laws and actions “substantially reduc[ed] their lifespans and the number of healthy years in their lives” and impeded their liberty because they endangered the plaintiffs’ health and safety.[263]
The Utah Trial Court Decision
In 2022, a Utah trial court found the plaintiffs lacked standing.[264] The reasoning closely tracked that of the Ninth Circuit in Juliana: To the extent that they could be demonstrated, the plaintiffs’ injuries were not redressable by the requested relief, as their “proposed declaration” against the challenged statutes will likely “not . . . have any effect on carbon emissions in Utah.”[265] By striking down state statutes that simply identified fossil fuel extraction as a state policy priority, “Plaintiffs cannot promise it will have any effect at all.”[266] And even if it might possibly do so, Utah’s actions alone would have little effect, as “Plaintiffs’ claimed harms would require a global solution” and an implementable recovery plan beyond mere declaratory relief.[267]
The trial court also found the claim fell afoul of the political question doctrine. The court expressly preferred the Ninth Circuit’s holding in Juliana over the Montana trial court’s decision in Held.[268] This was in large part because, like the U.S. Constitution (and unlike the Montana state constitution), Utah’s constitution contains no express environmental right.[269] The court found that political question problems also arose because of a lack of manageable standards and because the claim would have necessitated inappropriate interference with quintessentially political issues.[270]
The Utah Supreme Court Decision
After hearing the case in September 2024, the Utah Supreme Court in March 2025 agreed with the trial court’s analysis. The court affirmed the redressability findings, arguing that “[t]he challenged provisions do not—as the youth plaintiffs claim—limit the government defendants’ discretion in making decisions about fossil fuel development,” and that the prospects of redressing the plaintiffs’ injuries was accordingly speculative.[271]
To address the redressability issues identified by the trial court, the plaintiff‑appellants had offered another redressability theory: that declaratory relief would provide “‘guidance as to the constitutional parameters governing’ the defendants’ ‘subsequent conduct.’”[272] This, however, substituted redressability for another problem, namely Utah’s longstanding bar on courts issuing advisory opinions. Providing such “guidance,” the court reasoned, would amount to an unlawful advisory opinion.[273] The trial court’s decision to dismiss the case was therefore upheld.[274]
Analysis of Natalie R.
On its face, the Natalie R. decision provides a stark reminder of the significant uphill battles faced by many litigants. Courts are understandably skeptical that state‑level remedies can address injuries created at a global scale. Moreover, state fossil fuel development is rarely the consequence of a single law (or set of laws) that can be discretely challenged. As the Utah Supreme Court pointed out, striking down laws which promote fossil fuel development would not definitively put an end to it.[275] And many states—thirty‑nine altogether—have followed the lead of federal courts in declining to allow advisory opinions.[276]
Natalie R. illustrates the difficult tightrope that plaintiffs must walk when seeking relief. Had the Utah plaintiffs requested more than declaratory relief, they would have risked losing on the same basis as the Juliana plaintiffs—namely, that their requested relief went beyond what a court could manageably grant. But by restricting their request to mere declaratory relief, they encountered a different redressability challenge: that the requested relief would not actually lead to any meaningful change in their situation and risk amounting to an advisory opinion. Claiming a form of relief that is both meaningful and manageable remains a key challenge for litigants, as discussed in Part IV.
But on the other hand, the Natalie R. ruling is narrower than one might think and may be somewhat limited to its particular circumstances. In particular, the complaint lacked the specificity of those in Held and Navahine F, which provided an opportunity for the court to directly distinguish from the Held decision.[277] The challenged laws were largely aspirational policy directives rather than specific decision‑making frameworks (such as the impact assessment law challenged in Held), and the allegedly rights‑violating conduct was stated at a high level of generality. The court accepted that Utah was indeed accelerating its production of fossil fuels but concluded that this fact did “not make up for [the] nondescript allegations about the unconstitutional actions taken by the government defendants.”[278] Somewhat promisingly, the Utah Supreme Court at least reversed the trial court’s holding that the complaint be dismissed with prejudice, allowing the plaintiffs an opportunity remedy the defects in their complaint.[279]
Atencio v. New Mexico
Atencio is a case with mixed, though ultimately unsuccessful, results. In 2024 it survived a motion to dismiss[280] only to be dismissed in June 2025 following an appeal to a state appeals court.[281] Plaintiffs challenged New Mexico’s system of oil and gas production, one of the largest in the United States.[282] The plaintiffs described themselves as “‘frontline’ community members (i.e., people living near oil and gas production sites) . . . all of whom are being injured by the State’s long‑standing permitting of oil and gas production.”[283]
Unlike Held, Navahine F., and Natalie R., the Atencio complaint did not exclusively deal with greenhouse gas emissions and climate‑related harms. Instead, it highlighted the extensive localized impacts of oil and gas production (including the impacts of hydraulic fracking) on air, water, biodiversity, and human health,[284] as well as their impact on global heating and climate change.[285] Significantly, the plaintiffs pointed out the particular vulnerability of New Mexicans to climate change, living in one of the fastest‑warming states[286] and “the most water stressed state in the country.”[287] As with the Held plaintiffs, the Atencio complaint stresses the particular impact on the plaintiffs, including young persons and Indigenous Peoples.[288]
Among other claims, the Atencio plaintiffs argued that New Mexico’s oil and gas production policies violated two provisions of the state constitution.[289] Like Utah’s, New Mexico’s constitution contains no express environmental right. It does contain a general pollution control directive.[290] Article XX, section 21 of the New Mexico Constitution provides that:
The protection of the state’s beautiful and healthful environment is hereby declared to be of fundamental importance to the public interest, health, safety and the general welfare. The legislature shall provide for control of pollution and control of despoilment of the air, water and other natural resources of this state, consistent with the use and development of these resources for the maximum benefit of the people.[291]
As a directive principle, the legal import of this provision is unclear. Nowhere does it expressly create a constitutional right, much less a self‑executing one. According to plaintiffs’ counsel, New Mexico’s pollution control clause had never been tested in court.[292]
The Atencio plaintiffs, however, argued that this provision, read together with New Mexico’s general fundamental[293] and due process rights,[294] gave rise to a constitutional environmental right and a “positive, mandatory, and judicially enforceable duty on the Legislature.”[295] In making this argument, the plaintiffs drew on an earlier New Mexico state constitutional precedent concluding that the New Mexico Constitution’s similarly worded education clause gave rise to enforceable obligations.[296] Specifically, the plaintiffs argued that the clause is a “positive right” that requires the legislature to “establish a sufficient statutory framework, with requisite funding to executive agencies to implement the framework, to comply with the constitutional mandate.”[297] It therefore requires the executive to implement such a framework with ongoing legislative oversight.[298] The plaintiffs alleged that the state legislature and executive had violated protected rights by carving out exemptions for oil and gas from state environmental protection laws,[299] failing to implement air quality laws,[300] failing to adequately resource environmental enforcement agencies,[301] and failing to include environmental concerns in the state’s Oil and Gas Act.[302] In addition to declarations that the state government’s conduct unconstitutionally violated the plaintiffs’ rights,[303] plaintiffs sought injunctive relief that would suspend permitting of new oil and gas wells, revise the state’s regulatory regime, treat oil and gas byproducts as hazardous wastes, remediate environmental damage, and improve decision‑making processes.[304]
The government defendants moved to dismiss the complaint.[305] They argued that the requested relief failed to state a case or controversy; such relief violated New Mexico’s scheme of separation of powers; the New Mexico Constitution did not “create a right to a specific type or level of pollution control”; and the requested declaratory relief would not redress the alleged injury.[306] In rejecting the state’s motion to dismiss, the trial court rejected many of these arguments.[307] It concluded that the plaintiffs had alleged sufficient facts to advance their claims for declaratory relief and that rejecting the claims on separation of powers concerns would be premature.[308] Furthermore, it determined that the question of whether the New Mexico Constitution guarantees a fundamental environmental right was a question that deserved a full hearing.[309]
The trial court’s willingness to entertain these claims was significant. As noted above, most U.S. states do not contain an express fundamental environmental right. Many, however, contain civil rights and environmental directive provisions similar to those identified by the Atencio complainants, which could similarly be argued to guarantee environmental rights and interests.
The trial court’s decision, however, was reversed on appeal. The court found that article XX, section 21 (New Mexico’s constitutional environmental directive) did not give rise to an enforceable right, rejecting a purposive approach in favor of the plain language of the clause.[310] It further found that the relief sought would interfere with the state constitutional separation of powers, “supplanting the Legislature’s policy choices with judicial determinations.”[311] The court ultimately invoked the political question doctrine and federal case law in reaching this conclusion.[312] And the court rejected plaintiffs’ attempts to extend state substantive due process jurisprudence to climate change, determining that such an argument was not rooted in the state’s law or “history and tradition.”[313]
Despite its ultimate failure, Atencio provides an interesting glimpse of the possibility of deriving rights from directive principles. Because so many U.S. state constitutions contain environmental directive principles, the argument is highly significant. And though it failed to carry the day, both the trial court judge and one of the appellate judges (Judge Wray, writing in a separate concurring opinion) were willing to accept that New Mexico’s environmental clause could potentially give rise to some form of right.[314] The case may prove to be the end of the road for similar litigation in New Mexico (at least for now), but it suggests that at least some judges in other states with similar environmental directive principles may be open to such arguments. Although the court rejected the strong, individual enforceable “right to a beautiful and healthful environment” advanced by the plaintiffs, one appellate judge—Judge Wray— accepted the possibility that it could plausibly bolster the assertion of more established due process or equal protection rights, and thus would demand a higher standard of review.[315] Observations such as Judge Wray’s provide novel possibilities for future litigation in New Mexico and other states whose constitutions lack an express environmental right but contain environmental directives.
What State Constitutional Climate Litigation Cannot Do
As significant as recent case law may be, it might be argued that it hardly shifts the fundamental picture of state constitutional climate law. Sure, Held and Navahine F. represent a step forward. But the gains are relatively modest. They are offset by continuing losses for state constitutional climate lawyers, including those in Atencio and Natalie R. Furthermore, as discussed in Section I.A, only a handful of state constitutions contain the express environmental rights which proved decisive in both Held and Navahine F.[316] And beyond those in Hawai‘i and Montana, only Pennsylvania courts have a strong tradition of robustly interpreting and enforcing environmental rights provisions.[317] The exportability of Held and Navahine F. might fairly be doubted. State court judges deciding cases elsewhere can easily distinguish their own constitutions from these more expressly environmental rights‑protecting charters, making it significantly more challenging for plaintiffs in other states. And indeed, courts in New Mexico and Utah declined to follow their lead.[318]
Furthermore, the overall impact of even the most promising decisions (Held and Navahine F.) is arguably modest. At first glance, Held seems promising. As the state supreme courts both observed, changes to a state agency’s procedure for permitting may very well determine the outcome.[319] The judicial elimination of the MEPA Limitation at least theoretically means that some carbon‑emitting projects are less likely to go ahead. Given Montana’s coal‑intensive emissions profile, this may well be most consequential in the licensing of coal mines and transportation infrastructure. At the same time, however, the influence of procedure on outcome should not be overstated. Even if climate considerations are taken into account by state agencies, the methodologies for such calculations can be highly opaque or complex, leading to uncertainty or undercounting of such impacts.[320] And even if impacts are factored into account, there is no guarantee that a determined pro‑coal state agency might nevertheless conclude that such impacts are outweighed by other considerations. Whether the Held decision leads to a reduction in fossil fuel approvals in Montana is yet to be seen, and there may be good grounds for skepticism. Although states such as Montana and New Mexico are significant fossil fuel producers, their combined emissions alone will not, by themselves, solve global climate change. Although very high per capita, the two states’ combined emissions make up only 2.4 percent of overall United States emissions,[321] which in turn comprise approximately 11 percent of the world’s total.[322] And the impact of reductions in supply of fossil fuels is also contestable: Extracted fossil fuels foregone in Montana could simply be supplied by a different U.S. state or imported from overseas (an argument often referred to as the “perfect substitute” argument).[323]
Navahine F. is perhaps more promising. Rather than attempting to force state governments to leave more fossil fuels in the ground, the Navahine F. settlement suggests a willingness by a state government to take positive steps to enact policies that will reduce the state’s overall greenhouse gas emissions (and in particular, those from transport). The test will come in follow‑up actions taken by Hawai‘i’s state agencies in developing and implementing adequately funded policy.[324] Hawai‘i, however, remains a minor contributor to global greenhouse gas emissions, ranking forty‑sixth out of fifty states.[325]
Moreover, the failures in Atencio and Natalie R. suggest that many state courts are still unwilling to look past justiciability challenges—particularly where plaintiffs target high‑level state policy rather than discrete actions and operative legal frameworks. Issues such as separation of powers, redressability, and the political question doctrine continue to inhibit state‑level suits, much as they have their federal counterparts.
Finally, none of these decisions constitute a sweeping mandate for bold climate action. The Held decision, while a decision of a state supreme court, does not actually require the Montana state government to proactively do anything: It simply prohibits state agencies from ignoring climate change altogether. Atencio, even if it were to be successful, would (at best) likewise merely slow the rate at which fossil fuels are extracted. Navahine F. perhaps comes closest to a sweeping constitutional obligation to act on climate change. But even that settlement is restricted to a single sector (transport) and avoids any admission by the state that its constitutional obligations extend to sweeping economy‑wide action. Rather, the decision envisages an extensive, technical, and bureaucratic process through which Hawai‘i will address transport emissions—hardly the stuff of a radical response to a climate emergency.
These criticisms perhaps extend beyond state constitutional law. It is unlikely that litigation, alone, in any form will by itself save the planet from global warming.[326] And at a time when future trajectories of global heating appear more dire than ever,[327] it might be reasonably argued that climate activists invest their scarce resources in action that is likely to yield greater impact. As a notoriously resource‑intensive process, litigation may not be the best bet. State constitutional claims necessitate novel arguments in relatively small political units. They therefore might not seem an obvious strategy. At the very least, the efficacy of state constitutional climate claims—even successful ones—should not be overstated.
What State Constitutional Climate Litigation Can Do
Yet despite these shortcomings, the 2024 cases give reason for cautious optimism in state constitutional climate suits. 2024 represents a breakthrough year in state climate constitutionalism. In this Section, I offer four key lessons that can be learned from these cases, drawing on both their successes (Held and Navahine F.), and their failures. The first relates to causation and standing analysis.[328] Held, in particular, offers a salient lesson for how other cases (both constitutional and tort‑based) could structure their overlapping standing and causation arguments. It also illustrates the distinct benefits of constitutional law as a basis for making such claims. Secondly, these recent cases illustrate the benefits of more tailored, narrowly focused claims.[329] Unlike earlier state and federal claims, cases such as Held and Navahine F. focus on more specific sectors and demands, rendering the cases more manageable and justiciable for state court judges. Third, the cases point to the value in tailoring claims toward the specific dynamics of state politics, accounting for how the judiciary is situated in relation to other branches of government, and to prevailing popular opinion.[330] Fourth, the claims generally call attention to the value of states as a locus for climate action in the face of increasing hostility toward climate policy from federal executive, judicial, and legislative branches.[331] All these factors add up to hints of the increasing exportability of state constitutional climate claims, both to a growing number of jurisdictions, as well as to other fields of law.
Causation and Standing Analysis
Causation and standing are two of the biggest challenges for plaintiffs bringing climate suits.[332] This is true not only for state constitutional claims but for any claim alleging some form of responsibility for climate change: both those against governments (such as state and federal constitutional suits),[333] as well as tort and other claims against private companies.[334] Finding a legal theory which establishes that a particular defendant should be singled out as the cause of climate change, among millions of other emitters, is extremely challenging. And because establishing standing generally requires a plaintiff to show that an alleged injury is traceable to a particular defendant, causation challenges often manifest in standing analysis as well. Natalie R. and Atencio demonstrate that these challenges have far from disappeared. But much can be learned from the Held decisions.
Injury Requirement
The Held trial and state supreme court decisions each offer salient, though slightly different, lessons for future litigation. The trial court decision is significant because it is the most transportable to other types of claims. The trial court largely adopted the same standing test as required under federal constitutional law: “actual or imminent”
injuries;[335] fairly traceable to the defendant’s conduct; and redressable through a favorable decision by the court.[336]
The first limb of this test—establishing injury—can present challenges for plaintiffs. In many respects, climate change presents a slow‑moving, future threat, spread out across the world. Courts will be nervous about recognizing particular plaintiffs as specially injured. In Held, however, plaintiffs were able to persuade the court that they were already experiencing significant harm not only because of climate‑related changes to Montana’s environment but also because of the plaintiffs’ mental health and anxiety challenges. The trial court accepted expert evidence, for instance, that the plaintiffs were experiencing “stress and distress which can impact physical health” from (among other things) witnessing glaciers disappear, losing important plant species and snow, and being forced to stay indoors during wildfires.[337] The plaintiffs also effectively martialed evidence pointing to the particular vulnerabilities of young and Indigenous plaintiffs, including impacts on their abilities to “participate in cultural practices and access traditional food sources.”[338] In other words, the plaintiffs were able to show that they were specific victims of climate change, set apart from the general public.
In some respects, the Montana Supreme Court analysis was even more liberal. The court stressed that injury to the “exercise of [a] civil or constitutional right,” by itself, constituted a showing of harm independent of any injury to person or property.[339] In many respects, this removed many of the traceability demands from the standing analysis. Rather than showing concrete or particularized injury, showing harm to the exercise of a constitutional right is a lower bar: “[A]lleging facts stating a claim that a statute violates a plaintiff’s right is sufficient to show an injury,” and there was no need for a plaintiff to show a “personal stake” in the dispute.[340] Because the constitutional right was owed to all Montanans[341] and because all Montanans had a statutory interest in accessing environmental information,[342] the plaintiffs could straightforwardly point to an injury. It was thus not apparently necessary for the plaintiffs to point to any greater or special harm, as they would have needed to under federal court standing jurisprudence: The constitutional guarantees “apply to all persons of the state.”[343]
The trial court decision demonstrates the value of carefully pointing to specific injuries being experienced by the plaintiffs. Rather than highlighting amorphous injuries spread over the state of Montana, plaintiff expert evidence narrowed the focus on the specific injuries of the plaintiffs.[344] This strategy is relevant not only to state constitutional climate suits but also to legal tests in a range of contexts beyond constitutional standing. In public nuisance suits, for example, many states require a showing of “special injury”—something which sets the plaintiff apart from the general public as someone who has experienced damage beyond the shared violation of a public right.[345] In this respect, the evidence presented and accepted by the Held trial court might provide a playbook for plaintiffs seeking to meet this requirement in the very different context of tort claims against private defendants.[346]
The Montana Supreme Court decision, meanwhile, demonstrates the value of bringing arguments on state constitutional law grounds. The court expressly rejected the need to show a tort‑like special injury to the plaintiff.[347] Rather, it was sufficient to simply show that the plaintiff was a beneficiary of a constitutional rights‑based guarantee that had been violated by the state government’s actions. The bar for the plaintiffs, therefore, was significantly lower than it might be under a more stringent federal standard or under a tort‑based one.[348]
The Atencio plaintiffs’ success at the trial court was likewise linked to a much more concrete set of injuries. The complaint focused not only on the longer‑term, slower‑moving climate related impacts of oil and gas extraction but also the much more immediate and local consequences. The plaintiffs themselves were from frontline communities: those living close to the challenged oil and gas infrastructure. Like the Held and Navahine F. plaintiffs, the Atencio plaintiffs drew attention to the unique and differentiated climate vulnerabilities of young people and Indigenous communities.[349] But they also pointed out that “[t]he closer one lives, works, seeks health care, goes to school or plays near oil and gas extraction and fracking sites, the more one is likely to experience toxic exposures and a related number of negative health impacts.”[350] The injury of toxic exposure because of failure to appropriately regulate oil and gas extraction is neither speculative nor long term. As the plaintiffs pointed out, their proximity to such exposure renders their injuries more immediate.
Traceability and Causation
Federal constitutional law—replicated in some form in many states—has long held that in order to establish standing, a plaintiff must show that their injury is “fairly traceable to the defendant.”[351] In practice, this traceability requirement will often track closely with the establishment of causation at the merits phase of a court’s analysis, not only for constitutional claims, but in a range of climate‑related contexts.[352]
Yet satisfying both traceability and causation can be a challenging task. As canvassed in Section I.B, greenhouse gases are emitted from an enormous range of sources located all over the world, beyond any single jurisdiction. Demonstrating that the actions of a single emitter (let alone a government regulating those emitters) caused injury to a particular plaintiff is extremely challenging.[353] Defendant states typically argue that their emissions have caused injury only by mixing together with those of many other emitters, including those located outside the state and country;[354] and if they hadn’t extracted and burned fossil fuels (or authorized others to do so), someone else would have instead.[355]
Despite these challenges, the trial and appellate courts in Held both pieced together a persuasive causal chain leading from the state’s authorization of fossil fuel projects to injuries suffered by the plaintiffs. The chain relied extensively on plaintiff expert evidence. The plaintiffs’ injuries derived from fossil fuel emissions;[356] the share of those emissions caused by Montanan fossil fuels was significant;[357] and the MEPA Limitation made it more likely that Montana would continue to be a significant source of emissions, thus aggravating the plaintiffs’ injuries. The appellate court, in narrowing the scope of the injury to an interference with a constitutional right (as discussed in Section IV.A.1 above), rendered the task a little easier: Proving that the state’s actions led to an interference with a widely shared constitutional right, rather than a personally experienced injury, is a more straightforward task.[358] As the court observed, the focus of the court’s inquiry should not be on whether the state’s actions cause climate change writ large but “whether the challenged statute is a cause of, or is likely to cause, an unconstitutional infringement on Plaintiff’s right.”[359] In other words, the constitutional nature of the dispute significantly narrows the issue.
In a different way, the Atencio trial court decision suggested a more immediate and direct chain of causation and traceability. It removed several links in the chain: Rather than relying exclusively on climate‑related harms, the plaintiffs were able to point to localized harms to water resources and human health straightforwardly caused by the toxic byproducts of oil and gas extraction.[360] Rather than devising an elaborate chain of causation depending on complex atmospheric processes, the most significant remaining challenge was to show how the state’s actions (rather than those of oil and gas interests) were the cause of their injuries.[361] Importantly, causation and traceability were not the fatal issues for the Atencio and Natalie R. plaintiffs: Instead, they were ultimately knocked down by redressability and political question concerns.[362]
Redressability and the Political Question Doctrine
As discussed in Section I.B, redressability and the political question doctrine have proved to be significant barriers to successful climate litigation. Redressability was decisive in Juliana v. United States, with the court holding that it could not grant the sweeping relief sought by plaintiffs (in short, an extensive government‑wide policy plan with ongoing judicial oversight).[363] Redressability is closely related to the political question doctrine: Indeed, the Juliana court cited Supreme Court political question jurisprudence in its discussion of redressability.[364] Both issues are related to the appropriateness of the court to intervene in a dispute. And in future cases, the need for extensive, complex, and politically controversial judicial intervention will count against relief. Courts will be reluctant to interfere with whole‑of‑government policies, which often involve complex polycentric decisions and trade‑offs.[365] In particular, courts may feel that such decisions lack “judicially . . . manageable standards,” rendering such interventions inappropriate under the political questions doctrine.[366]
Yet Held was able to overcome both redressability and political question concerns. The redressability question largely flowed from the court’s causation analysis. Held was based not on an omission of state action (such as failing to enact effective climate policy) but a challenge to concrete state action, which was the cause of the harm. The relief sought—setting aside the MEPA Limitation—would straightforwardly address the injury. And the simple nature of the relief lessened the political question concerns. Constitutional claims might provide a basis for litigation in other states which roll back existing climate and environmental protections—though plaintiffs will still face many of the other challenges identified in this Article, especially where that state lacks an express environmental right.
Nevertheless, it is clear that redressability and political question concerns remain the most difficult for plaintiffs to overcome. The shadow of Juliana looms large over cases such as Atencio and Natalie R. Juliana provides judges with a justification for quickly dismissing state claims: They can point to a decision of a federal appellate court as a basis for caution in handling claims with complex redressability challenges. Even where state courts do not adopt the same doctrinal language as the Ninth Circuit in Juliana, they may be motivated by the same concerns. In Natalie R., for instance, Utah’s bar on advisory opinions performs much of the same function: As the Utah Supreme Court observed, attempts by litigants to “ask[] the court to instruct the government defendants on how they must act ‘going forward’ . . . would amount to an impermissible advisory opinion.”[367] For plaintiffs to overcome these hurdles, it may be necessary to narrow the scope of their claims and closely hew to clearly identifiable rights‑violating government actions and traditional judicial remedies.
Narrowing Claims & Remedies
Held and Navahine F. succeeded in large part precisely because of the narrowness of their claims. In both cases, the scope of the claim was narrowed from the original complaint—not because of plaintiffs’ own intentions, but because of judicial decisions. In this sense, courts may have done the plaintiffs an uninvited favor. These cases suggest that plaintiffs can overcome many of the pitfalls of earlier litigation by presenting courts with narrower disputes and simpler remedies.
Wide‑ranging claims, by contrast, are risky. If plaintiffs win, the payoff may be bigger. But they raise doctrinal challenges (such as the redressability and political question concerns), as well as more practical questions about the efficacy of the complex remedies. Even if such claims succeed, there may be concerns about the prospects of success, for example, of an all‑of‑government commitment to reducing greenhouse gas emissions, with ongoing judicial supervision.[368] Judges can only do so much.[369]
In Held, however, rather than having to devise a plan to guide the state’s climate policy, the court simply had to determine whether two narrow legislative provisions conformed to the state constitution. The form of relief was simple: striking down the challenged provisions and prohibiting the state from acting in accordance with the unconstitutional statutes.[370] While the impact of the decision may not be as sweeping as the plaintiffs might have originally hoped, the narrow issue and the simple negative remedy alleviated other concerns.
In Navahine F., the remedy sought was more sweeping. Like many earlier constitutional climate cases, it relied on orders requiring extensive proactive measures by a state government.[371] Still, the remedy sought in Navahine F. was narrower and more targeted than many earlier cases. Rather than asking a court to reorient government regulation across all sectors of the economy, the Navahine F. plaintiffs focused on one sector: transport.[372] They also effectively dovetailed their constitutional complaints with statutory obligations, which enabled them to point to a preexisting legislative roadmap for state agencies to follow. This strategy yielded a relatively concrete set of measures that the state government was ultimately able to agree to in a settlement.
The relief sought in Atencio sits somewhere between these other two cases. Like Held, plaintiffs asked the state government to stop or reduce a particular activity (in this case, extraction of oil and gas). But like Navahine F., plaintiffs asked the court to do much more than simply strike down an offending legislative provision. Instead, plaintiffs asked the court to not only declare the existing system of oil and gas regulation incompatible with the New Mexico Constitution, but also (among other things) order the state government to “establish and fund a statutory, regulatory and enforcement scheme” that is compliant.[373] Yet the scope of the remedy sought still proved too much for the court to entertain: The appellate court was concerned that the requested relief would offend the state’s system of separation of powers.[374]
It seems that Our Children’s Trust, the NGO behind Held, Navahine F., and many other climate lawsuits, may have learned some of this lesson. Rather than sweeping declarations and remedies that marked many of the NGO’s early cases (such as Juliana), some of its more recent filings have sought narrower or more negative remedies.[375] In a recent filing in Alaska, for example, plaintiffs supported by Our Children’s Trust specifically challenged laws which fast‑tracked the development of Alaska’s Liquified Natural Gas Project, a major fossil fuel development.[376] The young plaintiffs argued that the project violates their public trust and due process rights guaranteed under the Alaskan state constitution.[377] The case contrasts sharply with an earlier, failed case brought by the same lead plaintiff, which sought much more sweeping remedies.[378] The narrower claim may have a greater chance of success, and reflects the importance of calibrating state climate litigation to the climate politics of particular states. Litigants should be realistic in their expectations of how state courts are likely to rule and how the political branches will respond to court decisions.
Responsiveness to State Politics
Cases seeking broad, sweeping climate remedies are unlikely to succeed in deep‑red and fossil‑fuel‑dependent states such as Montana. Even though Montana’s Supreme Court is widely perceived as more liberal than Montana’s legislature, lawmakers commonly threaten the court with curbs to its independence after adverse rulings (including the Held decision).[379] This has two limitations for climate litigation. First, courts facing such threats may be more cautious in issuing sweeping declaratory rulings with complex and ambitious remedies. Second, remedies which rely on relatively good relations between the branches of government—such as structural remedies with ongoing judicial supervision—may be less likely to be successful.
Litigants pursuing litigation in such states, therefore, may find a model in the Held decision. Rather than making ambitious claims and seeking sweeping remedies, litigants can focus more narrowly on opposing particularly egregious government action, thereby blocking the worst excesses of anti‑climate action. The MEPA Limitation offers one egregious example. Such an approach is more likely palatable to state court judges than forcing hostile governments to take on more ambitious policy measures. Where such measures are foisted upon unwilling executives by courts, they are less likely to succeed.
Still, it should be noted that Held demonstrates that even in deep‑red states with strong fossil fuel sectors, effective constitutional climate litigation is possible. Even as a deep‑red state, many Montanans are concerned about climate change. Polling shows that the majority of Montanans are worried about climate change, and two‑thirds of Montanans believe it will harm future generations.[380] Certain renewable energy policies, such as tax rebates for energy‑efficient vehicles or solar panels, are widely popular.[381] And the very existence of an environmental rights amendment shows that political organizing for environmental goals can bear fruit. Even in the face of hostile political backlash, judicial opinions countering the worst anti‑climate measures may have a popular constituency.
Navahine F., by contrast, shows what is possible in a state with a broadly sympathetic state government. In this context, litigation may not only stop the worst excesses of regressive climate policy, but also push such governments to do more. Significantly, Hawai‘i already had several laws requiring more investment in a lower‑carbon transport system. The Navahine F. plaintiffs, however, were able to use litigation to point out that many of these targets and directives lacked an implementation strategy. Although the state government originally sought to dismiss the claim, once the court allowed it to progress to trial, the state was able to present its acceptance of the plaintiffs’ claims as a win for both parties. Hawai‘i Governor Josh Green described it as a “collaborative path forward” and a product of the government’s “unprecedented leadership.”[382] In many respects, the Navahine F. decision strikes at the interplay of states’ purported commitment to act on climate change (often supported by large numbers of constituents)[383] and their practical lack of action.[384]
Atencio has the potential to do similar work. New Mexico, while a significant fossil fuel producing state, is also among the most vulnerable to the effects of climate change: Indeed, polling in New Mexico suggests that a large majority of its residents have already noticed its significant impacts.[385] Concerns about localized impacts of oil and gas production, such as impacts on pollution, biodiversity, and water supply, are particularly salient,[386] and overall support for public lands conservation is extremely high.[387] Even without drawing attention to the global impacts of fossil fuel production, grounding claims in concerns about local impacts of oil and gas infrastructure—as the Atencio plaintiffs have done—reflects not only the concerns of the plaintiffs themselves but of many of the prevailing environmental concerns in the state, increasing the salience of the complaint as well as its potential to attract public support.[388] Even if Atencio was ultimately unsuccessful, such an approach could work more effectively in other cases—particularly in states with longstanding concerns about more localized environmental issues.
Increasing Exportability
Altogether, the 2024 cases point to the potentially increasing exportability of constitutional climate suits—that is, considering the use of similar strategies in states where they have not yet been tested. As discussed in Part III above, such suits are often thought of as nonexportable. Few state constitutions contain express environmental rights. Yet this need not be a barrier to increased proliferation of these suits.
First, several states do have environmental rights provisions that remain largely untested, especially in the context of climate change. For example, despite a growing environmental rights jurisprudence in relation to local issues, no directly climate‑related constitutional rights claim has yet been brought in Pennsylvania. The constitutions of Illinois, Massachusetts, and Rhode Island all contain environmental rights, though these provisions have traditionally been read narrowly.[389] Recent case law could provoke new claims brought under these rights that challenge existing precedents and directly focus courts’ attention on the pressing issues raised by climate change. In particular, the Navahine F. decision joins a growing Hawaiian body of jurisprudence expanding the application of Hawai‘i’s narrowly drawn environmental right, particularly in instances where constitutional provisions are read together with statutory environmental interests (such as climate targets).[390] The first cases brought under New York’s 2021 environmental rights amendment are working their way through state courts,[391] leaving open the possibility of future climate‑focused cases to be brought in one of the country’s most populous states. Even if the import of Held and Navahine F. were restricted to states with express environmental rights, it would still be of significance.
But there are reasons to believe the cases may have broader implications. First, so‑called “green amendments”—amendments to state constitutions to add express environmental rights provisions—are gaining momentum. Most existing green amendments were passed in the 1970s. But New York’s 2021 Amendment demonstrates that such amendments remain possible in the twenty‑first century. As three prominent scholars of the Amendment’s history have observed, the Amendment is the product of a concerted civil society response to a series of high‑profile environmental disasters, federal rollbacks, recognition of links between environmental hazards and human health, extreme weather events, and growing concern about environmental injustice.[392] This context helped shape the momentum of civil society activists, who were able to secure the support of 70 percent of New York voters.[393] But these challenges are not unique to New York: They are faced by communities across the United States. It is perhaps therefore unsurprising that many other green amendment proposals are advancing in state legislatures across the country: Only a few months after the Atencio complaint was allowed to proceed, a New Mexico legislative committee likewise kept an express environmental amendment alive in the state legislature.[394]
Second, in addition to those states with express constitutional rights, a larger group of state constitutions contain more ambiguous environmental protections. Many of these—such as the New Mexico Constitution—direct state legislatures or agencies to do more to protect the environment, rather than expressly establish environmental rights.[395] But there is scope for these provisions to be read as creating some form of legal obligation, especially when read together with more traditional, enforceable rights (as the plaintiffs in Atencio argued). For this reason, the claims made in Atencio are significant. Though ultimately unsuccessful, at least one appellate judge was willing to accept a more modest claim that even if constitutional directives do not establish standalone enforceable rights, they might ratchet up the level of protection offered by other express rights (such as due process and equal protection).[396] The decision leaves open the possibility that other state court judges will reach similar conclusions. Indeed, a 2024 decision by an appellate court in Louisiana reaffirmed earlier findings that Louisiana’s non‑rights‑based environmental protection clause established constitutional public trust obligations on state agencies, further bolstering the possibility that such provisions could prove useful in climate litigation.[397]
And for those states who recognize public trust obligations as part of state common or constitutional law, the Navahine F. motion to dismiss judgment is instructive. The court observed that it is not necessary to prove that the atmosphere or climate actually form part of the public trust in order for public trust obligations to be engaged. Rather, traditional elements of the public trust, such as public lands and waterways, can be impacted by climate change.[398] Because climate change impacts such resources, the court’s observation—that states may owe climate obligations to ensure that “trust property not be permitted to ‘fall into ruin on [the trustee’s] watch’”—is a broadly salient one.[399]
Indeed, the Held Supreme Court’s decision hints at a line of argument that advocates might pursue in these cases: progressive originalism. While at the federal level originalism is generally perceived as a conservative approach to constitutional interpretation—ossifying the U.S. Constitution in the late eighteenth century[400]—the picture is different for many state constitutional provisions. Montana’s environmental rights provision, like most others, was enacted during the 1970s, an era of sustained, widespread, and often bipartisan environmental concern.[401] Relying in part on testimony from one of the drafters herself,[402] the courts in Held accepted evidence that the amendment’s framers intended the right to represent the “strongest” possible degree of environmental protection.[403] Similar evidence in other states could be enormously valuable.
Indeed, the 2024 cases point to the generally more progressive orientation of state constitutions relative to their federal counterpart, mandating active, positive government protection of a wider range of rights. State constitutions “have long mandated active government intervention in social and economic life,”[404] based on constitutional amendments intended to “rewrite the rules of politics and transform their societies.”[405] Indeed, several state courts have stressed the affirmative, positive nature of environmental obligations.[406] This could include novel constitutional rights with clear linkages to the environment: Utah’s state constitution, for instance, provides for a textually positive right to “hunt and fish,” requiring the state to secure that right through measures including “wildlife conservation and management.”[407] Though this provision was not discussed in Natalie R. v. State, it could provide the basis for future litigation: Climate change threatens the ability of Utahns to hunt and fish, and makes “wildlife conservation and management” an exceedingly difficult task. Even in the absence of express environmental constitutional rights, at least one trial court in New Mexico was willing to accept the possibility of positive obligations. While Atencio and Natalie R. were ultimately unsuccessful, attempts to persuade judges in other states of similar arguments are not at an end: As pending litigation in Alaska reveals, such suits are being replicated elsewhere, often learning the lessons of unsuccessful litigation (such as the need to narrow the targets of constitutional claims).[408] While the impact of state constitutional law should not be overstated, recent climate cases build on and extend an existing foundation.
A Modest Defense
U.S. state constitutions will not stop climate change. Yeargain is right to argue that state‑level environmental rights “cannot be contorted into a skeleton key to unlock decarbonization.”[409] Even as cases such as Held and Navahine F. succeeded in 2024, other cases, such as Natalie R. and Atencio, have subsequently faltered. But recent case law does suggest that carefully calibrated cases can yield important outcomes. Importantly, they may take the edge off the most retrogressive climate measures, while pushing supposedly climate‑ambitious state governments to do more.
Such suits build on a longstanding legacy of state constitutional law. State constitutions have often exceeded their federal counterpart in their catalog of rights, extending rights protection beyond a federal “floor.”[410] Their less demanding amendment requirements[411] (and consequently, much higher frequency of amendment) makes them more attune to current policy challenges and more responsive to organizing campaigns by local pressure groups. And while climate change is a global issue, all greenhouse gases are emitted somewhere. Global top‑down regulation of greenhouse gas emissions simply does not exist.[412] In this context, action at all levels—local, state, national, and international—is essential. Such action is particularly valuable at a time when federal climate action is collapsing and the U.S. Supreme Court takes an increasingly hostile view of executive climate and environmental initiatives.[413]
Furthermore, constitutional climate claims can have effects well beyond the courtroom. Asserting that climate action is not merely a public good or discretionary matter but a right held by citizens against the state is a powerful claim.[414] Using litigation to build a movement and rally cultural resources outside the courtroom is nothing new and can be a powerful (if resource intensive) tool.[415]
State‑level constitutional climate suits belong in the climate advocacy toolbox. But these should be used sensibly and strategically, incorporating the four lessons identified in Part IV. They should be calibrated to the particular climate challenges and political dynamics of each state. This will often mean using litigation to blunt the worst effects of retrogressive climate measures in hostile states and calling on state governments to do more in more climate‑friendly states. In the latter context, it may prove a powerful tool to point to gaps between perceived ideals and the reality of policy implementation, drawing state governments into political settlements (as in Navahine F.). Plaintiffs should work strategically to overcome standing, political question doctrine, and causation hurdles. As the Held plaintiffs did so effectively, they should carefully identify and articulate the precise causal chain between state governments’ conduct and plaintiff harms. Like in Held, constitutional rights may imply a more flexible approach to plaintiff standing. Having identified harm and causation, plaintiffs should specify as narrowly as possible the relief that will address such harm. Even if such remedies are less sweeping that plaintiffs desire (and indeed the world needs), they have a higher chance of success. And plaintiffs beyond those states with successful cases should consider how they can adapt winning strategies to their own state constitutions, focusing on the legal infrastructure available. In states without express constitutional environmental rights, plaintiff lawyers should consider how directive principle and public trust provisions can be wielded in litigation. Proposals for new “green amendments” should be broadly supported. And if environmental concerns are completely absent from state constitutions, a different legal strategy might present a better use of limited resources.
Conclusion
Critics are right to point out that constitutional environmental rights are no panacea. But nor are any constitutional rights. Such rights are open to contestation and interpretation, driven by movement‑building and strategic, carefully considered litigation. In many (if not most) cases, constitutional cases are unlikely to rewrite a government’s entire government policy. But if such cases are carefully calibrated to the goals of the climate movement, and realistically oriented toward what is achievable in particular states, such cases are worthy of support.
2024 represents a breakthrough year in climate constitutionalism. But it is not, by itself, a game changer. Instead, recent cases offer a set of tools and roadmaps that other plaintiffs and lawyers may be able to use to build success. If such cases can be emulated elsewhere, then state constitutional law may yet prove to be a significant advance for climate justice.
*Lecturer (Assistant Professor), Melbourne Law School. This Article was written while a Postdoctoral Fellow at Harvard Law School and Visiting Assistant Professor at Pace Law School. Information in this Article is current to September 2025. Many thanks to Andrew Mergen, Amber Polk, Kamaile Turčan, and Quinn Yeargain for their helpful comments on earlier drafts, and to the terrific editorial team at the Colorado Law Review. The analysis of the trial court’s decision in Held v. Montana draws on my earlier work in Sam Bookman, What We Learned in Held v. Montana, HARV. ENV’T L. REV. ONLINE (Apr. 7, 2024), https://journals.law.harvard.edu/elr/2024/04/07/what-we-learned-in-held-v-montana [https://perma.cc/9BL5-7JUR], which received helpful comments from Susan Kath, Andrew Mergen, and Hannah Perls.
- See generally Regulatory Tracker, Harv. L. Sch. Env’t & Energy L. Program, https://eelp.law.harvard.edu/tracker-type/regulatory-tracker [https://perma.cc/5U3D-BAHZ] (tracing the regulatory steps weakening environmental protections enacted under the second Trump administration). ↑
- See, e.g., Juliana v. United States, 947 F.3d 1159, 1165 (9th Cir. 2020); G.B. v. U.S. EPA, No. CV 23-10345, 2024 WL 3009302, at *1 (C.D. Cal. May 8, 2024). Indeed, the United States Supreme Court has circumscribed federal authority to regulate climate change. See West Virginia v. EPA, 597 U.S. 697, 734–35 (2022). ↑
- Compare Quinn Yeargain, Against Environmental Rights Supremacy, 26 U. Pa. J. Const. L. 1323, 1326 (2024) (arguing that focusing on rights‑based strategies “would be a catastrophic error for the climate movement”), and Amber Polk, The Unfulfilled Promise of Environmental Constitutionalism, 74 Hastings L.J. 123, 123 (2022) (arguing that environmental constitutionalism fails to generate the expected “paradigm shift” in environmental protection), with James R. May, Subnational Climate Rights in America, 26 U. Pa. J. Const. L. 1237, 1237 (2024) (claiming future environmental victories will likely be secured via state litigation concerning rights). ↑
- See, e.g., May, supra note 3. ↑
- See, e.g., Miriam Seifter, State Institutions and Democratic Opportunity, 72 Duke L.J. 275, 280 (2022) (arguing that states “offer democratic opportunity” in a way that federal courts do not). Indeed, one risk from state‑level progressive creativity is the threat of federal backlash and preemption. Such an agenda has been signaled by the Trump administration. See Protecting American Energy from State Overreach, Exec. Order No. 14260, 90 Fed. Reg. 15,513, 15,513–14 (Apr. 14, 2025) (permitting the Attorney General to take “all appropriate action to stop the enforcement of State laws” that are aimed at climate change because they “devastate Americans by driving up energy costs” and “undermine Federalism by projecting the regulatory preferences of a few States into all States”). ↑
- Held v. State, 2024 MT 312, 419 MT 403, 560 P.3d 1235. ↑
- E.g., Amy Beth Hanson, Global Warming Can’t Be Ignored, Montana’s Top Court Says, Upholding Landmark Climate Case, Associated Press: U.S. News, https://apnews.com/article/youth-climate-change-lawsuit-montana-7c4b6261f610d504995743f7320533e8 [https://perma.cc/E4TY-8XWD] (last updated Dec. 18, 2024, at 3:26 PM); Karen Zraick, Youth Climate Activists Get Major Win in Montana Supreme Court, N.Y. Times (Dec. 18, 2024), https://www.nytimes.com/2024/12/18/climate/held-montana-youth-climate-lawsuit.html [https://perma.cc/V3D7-9TY2]. ↑
- Joint Stipulation & Ord. Re: Settlement; Exhibit “A” at 3, Navahine F. v. Dep’t of Transp., No. 1CCV-22-0000631 (Haw. 1st Cir. Ct., June 20, 2024) [hereinafter Navahine F. Settlement Ord.], https://climatecasechart.com/wp-content/uploads/case-documents/2024/20240620_docket-1CCV-22-0000631_settlement-agreement.pdf [https://perma.cc/HT3F-Q2QR]. ↑
- Interlocutory Ord. Denying Defendants’ Motion to Dismiss & Interlocutory Ord. Denying in Part & Granting in Part Defendant the N.M. Legislature’s Motion for Judgment on the Pleadings at 2, Atencio v. State, D‑101‑CV‑2023‑01038 (N.M. 1st Jud. Dist. Ct., June 10, 2024) [hereinafter Atencio Motion to Dismiss Ord.], https://climatecasechart.com/wp-content/uploads/case-documents/2024/20240610_docket-D-101-CV-202301038_order.pdf [https://perma.cc/K8DQ-9E9Y]. ↑
- Natalie R. v. State, 2025 UT 5, ¶ 1, 567 P.3d 550. ↑
- See infra Section I.B. ↑
- See infra Section I.C. ↑
- Yeargain, supra note 3, at 1326. ↑
- See infra Section II.C. ↑
- See infra Section II.C. ↑
- Texas, New Mexico, North Dakota, Colorado, and Alaska accounted for about 72 percent of U.S. crude oil production. Oil and Petroleum Products Explained, U.S. Energy Info. Admin., https://www.eia.gov/energyexplained/oil-and-petroleum-products/where-our-oil-comes-from.php [https://perma.cc/N6F7-4BKB] (last updated Sep. 21, 2023). ↑
- Id. ↑
- Dana Nuccitelli, How Climate Change Is Affecting Every U.S. Region, Yale Climate Connections (Nov. 20, 2023), https://yaleclimateconnections.org/2023/11/how-climate-change-is-affecting-every-u-s-region [https://perma.cc/C365-36SJ] (observing, for example, that Eastern states face increased flood risks, while Western states face greater risks related to drought and wildfires). ↑
- See Emily Zackin, Looking for Rights in All the Wrong Places: Why State Constitutions Contain America’s Positive Rights 147, 161 (Ira Katznelson et al. eds., 2013). ↑
- U.S. Const. amend. I. ↑
- U.S. Const. amend. V; id. amend. XIV, § 1. ↑
- U.S. Const. amend. XIV, § 1. ↑
- All U.S. state constitutions contain an education clause, which, at minimum, establish a state education system. See Emily Parker, Educ. Comm’n of the States, 50‑State Review: Constitutional Obligations for Public Education 1 (2016), https://www.ecs.org/wp-content/uploads/2016-Constitutional-obligations-for-public-education-1.pdf [https://perma.cc/E4LP-4JYQ]. By contrast, the United States Supreme Court has confirmed that the federal U.S. Constitution does not establish such a right to public education. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973). ↑
- Fifteen state constitutions contain some form of health provision. By contrast, the U.S. Constitution contains no express health right, and federal courts have consistently refused to find healthcare obligations implied under other provisions. See Elizabeth Weeks Leonard, State Constitutionalism and the Right to Healthcare, 12 U. Pa. J. Const. L. 1325, 1328, 1347 (2010). More recently, several states have amended their state constitutions to include rights to health care freedom. Quinn Yeargain, The Right to “Health Care Freedom” in State Constitutions, 93 UMKC L. Rev. 749, 758–59 (2024). ↑
- See, e.g., Lindsey v. Normet, 405 U.S. 56, 74 (1972); Rodriguez, 411 U.S. at 35; Plyler v. Doe 457 U.S. 202, 221 (1982). ↑
- May, supra note 3, at 1255 (“[T]here are more than two hundred natural resource or environment‑related provisions in forty‑six state constitutions.”). ↑
- Quinn Yeargain, Decarbonizing Constitutions, 41 Yale L. & Pol’y Rev. 1, 10–31 (2023). ↑
- N.Y. Const. art. XIV, § 1. ↑
- Zackin, supra note 19, at 146–96. ↑
- Id. at 38–42. ↑
- Id. at 41. For a summary of the main conceptions of the differences between positive and negative rights, see Leif Wenar & Rowan Cruft, Rights, Stan. Encyclopedia of Phil., https://plato.stanford.edu/entries/rights [https://perma.cc/FC4N-N66X] (last updated June 7, 2025). ↑
- Yeargain, supra note 27, at 32. Another more extensive categorization by Bret Adams lists nineteen different categories. See Bret Adams et al., Environmental and Natural Resources Provisions in State Constitutions, 22 J. Land, Res., & Env’t L. 73, 74–75 (2002). ↑
- Yeargain, supra note 27, at 33–34. Those states and territories are: Hawai‘i (Haw. Const. art. XI, § 9); Illinois (Ill. Const. art. XI, § 2); Massachusetts (Mass. Const. amend. art. XCVII); Montana (Mont. Const. art. II, § 3); New York (N.Y. Const. art. I, § 19); the Northern Mariana Islands (N. Mar. I. Const. art. I, § 9); Pennsylvania (Pa. Const. art. I, § 27); and Rhode Island (R.I. Const. art. I, § 27). While most of these amendments were passed in the 1970s, New York’s was passed in 2021. New York Overview, Green Amends. for the Generations: N.Y. Green Amend., https://nygreenamendment.org/overview [https://perma.cc/ENA5-932A]. ↑
- Mont. Const. art. II, § 3. ↑
- See generally Polk, supra note 3 (finding Hawai‘i, Montana, and Pennsylvania case law to be the most conducive for private plaintiff actions out of a five‑state survey including Illinois and Massachusetts). At the time of Polk’s survey, New York’s amendment had only been recently enacted and lacked interpretive jurisprudence. New York Overview, supra note 33. ↑
- New York Overview, supra note 33. See generally Active States, Green Amends. for the Generations, https://forthegenerations.org/active-states [https://perma.cc/BUK6-SS4C] (listing the states where there are active movements for similar “Green Amendments”). At the time of writing, for example, a House Committee in New Mexico voted advanced such a proposed amendment through to the next committee, though without the crucial recommendation that it be prioritized during this year’s sixty‑day legislative session. See Adam Aton, New Mexico’s ‘Green Amendment’ Faces Clean Energy Opposition, Politico: E&E News (Feb. 6, 2025, at 6:05 AM), https://www.eenews.net/articles/new-mexicos-green-amendment-faces-clean-energy-opposition [https://perma.cc/L8NY-TQE2]. ↑
- See infra notes 82–84 and accompanying text. ↑
- See Yeargain, supra note 3, at 1336 & nn.69–70 (“[T]hese rights were not invoked in the specific context of climate litigation.”). ↑
- See Robinson Twp. v. Commonwealth, 83 A.3d 901, 975–82 (Pa. 2013) (holding that the attempt to regulate the oil and gas industry on a statewide level was unconstitutional when applied retroactively to existing local regulations). ↑
- Pa. Env’t Def. Found. v. Commonwealth, 255 A.3d 289, 314 (Pa. 2021). ↑
- See infra Section I.B. ↑
- E.g., Mont. Env’t Info. Ctr. v. Dep’t of Env’t Quality, 1999 MT 248, ¶¶ 50, 77–80, 296 Mont. 207, 988 P.2d 1236. ↑
- Id. ↑
- See Polk, supra note 3, at 155–65 (discussing the narrow and sparse jurisprudence on environmental rights in Illinois and Massachusetts courts). ↑
- For a comparative overview of constitutional directive principles, see Tarunabh Khaitan, Directive Principles and the Expressive Accommodation of Ideological Dissenters, 16 Int’l J. Const. L. 389, 395–98 (2018). For a comparative discussion of the role of such provisions in environmental governance, see generally Lael K. Weis, Environmental Constitutionalism: Aspiration or Transformation?, 16 Int’l J. Const. L. 836 (2018). ↑
- See discussion infra Section II.C.2. ↑
- N.M. Const. art. XX, § 21. ↑
- Va. Const. art. XI, § 1. ↑
- Fla. Const. art. II, § 7. ↑
- La. Const. art. IX, § 1. ↑
- N.C. Const. art. XIV, § 5. ↑
- Mich. Const. art. IV, § 52. ↑
- Yeargain, supra note 3, at 35. ↑
- Wash. Const. art. XVII, § 1. ↑
- Alaska Const. art. VIII, § 14. ↑
- Haw. Const. art. XI, § 1; id. art. XII, § 4. ↑
- Pa. Const. art. I, § 27. ↑
- Id. ↑
- For a canonical discussion of the public trust doctrine and its relevance to environmental protection, see generally Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 Mich. L. Rev. 471 (1970). ↑
- See, e.g., Nat’l Audubon Soc’y v. Superior Ct., 658 P.2d 709, 727 (Cal. 1983) (“The state as sovereign retains continuing supervisory control over its navigable waters and the lands beneath those waters. This principle, fundamental to the concept of the public trust, applies to rights in flowing waters as well as to rights in tidelands and lakeshores . . . .”). ↑
- See, e.g., Ill. Cent. R.R. Co. v. Illinois, 146 U.S. 387, 460 (1892). ↑
- For an influential argument extending the public trust doctrine to a range of contexts as a foundation of environmental law, see generally Sax, supra note 59. ↑
- For extensive discussion of state constitutionalization of the public trust doctrine, see generally Erin Ryan, A Short History of the Public Trust Doctrine and Its Intersection with Private Water Law, 38 Va. Env’t L.J. 135 (2020); Erin Ryan et al., Environmental Rights for the 21st Century: A Comprehensive Analysis of the Public Trust Doctrine and Rights of Nature Movement, 42 Cardozo L. Rev. 2447 (2021). ↑
- Pa. Env’t Def. Found. v. Commonwealth, 161 A.3d 911, 937–39 (Pa. 2017); see also Robinson Twp. v. Commonwealth, 83 A.3d 901, 957 (Pa. 2013) (finding that public trust obligations include a government’s “duty to prevent and remedy the degradation, diminution, or depletion of our public natural resources”). ↑
- Ryan, supra note 63, at 168 (citing In re Water Use Permit Applications, 9 P.3d 409, 445 (Haw. 2000)). ↑
- Ryan et al., supra note 63, at 2468 (citing Haw. Rev. Stat. § 174C‑2(c) (1999)). ↑
- See discussion infra Section II.B. ↑
- Such an argument was advanced by the plaintiffs in Juliana v. United States, 947 F.3d 1159, 1169 (9th Cir. 2020), relying on the Fifth Amendment due process right of the federal U.S. Constitution. ↑
- Such an argument was advanced by the Juliana plaintiffs but dismissed at an early stage with a district court finding that age was not a suspect class for federal equal protection purposes. Juliana v. United States, 339 F. Supp. 3d 1062, 1102–03 (D. Or. 2018), rev’d and remanded on other grounds, 947 F.3d. ↑
- See discussion infra Section I.B. ↑
- See, e.g., BVerfG [Federal Constitutional Court], 1 BvR 2656/18, 1 BvR 78/20, 1 BvR 96/20, 1 BvR 288/20, Mar. 24, 2021 (Ger.) [hereinafter BVerfG, 1 BvR 2656/18], https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2021/03/rs20210324_1bvr265618en [https://perma.cc/UF3X-CDEQ] (holding that delayed action on climate change violated plaintiffs’ rights to life and physical integrity); HR 20 december 2019, ECLI:NL:HR:2019:2007 (Stichting Urgenda/Koninkrijk der Nederlanden) (Neth.) (holding that insufficient action on climate change violated plaintiffs’ rights to life, and private and family life). ↑
- The scholarly literature on Juliana is vast. See generally Bradford C. Mank, Does the Evolving Concept of Due Process in Obergefell Justify Judicial Regulation of Greenhouse Gases and Climate Change?: Juliana v. United States, 52 U.C. Davis L. Rev. 855 (2018); Chloe N. Kempf, Note, Why Did So Many Do So Little? Movement Building and Climate Change Litigation in the Time of Juliana v. United States, 99 Tex. L. Rev. 1005 (2021); Robert Kemper, Recognizing A Fundamental Right to a Clean Environment: Why the Juliana Court Got It Wrong and How to Address the Issue Moving Forward, 16 FIU L. Rev. 457 (2022); Megan Raymond, A Hypothetical Win for Juliana Plaintiffs: Ensuring Victory Is More than Symbolic, 46 Ecology L.Q. 705 (2019); Susan S. Kuo & Benjamin Means, Forcing Climate Change Compliance, 48 Harv. Env’t L. Rev. 437 (2024). ↑
- Juliana, 947 F.3d at 1165. ↑
- Id. ↑
- In other words, they could not demonstrate that they were a proper party to bring the case. Id. at 1159. ↑
- Id. at 1169–75. ↑
- In re United States of America, No. 24‑684, 2024 WL 5102489, at *2 (9th Cir. May 1, 2024). Plaintiffs’ application for a writ of certiorari to review the Ninth Circuit’s decision was denied in March 2025. Juliana v. United States, 145 S. Ct. 1428 (2025). ↑
- G.B. v. U.S. EPA, No. CV 23‑10345, 2024 WL 3009302, at *4 (C.D. Cal. May 8, 2024). ↑
- G.B. v. U.S. EPA, No. CV 23‑10345, 2025 WL 578354, at *1 (C.D. Cal. Feb. 11, 2025). ↑
- See supra Section I.A. ↑
- These victories arguably added to the reliance on constitutional interests in another case from Louisiana. Written Reasons for Judgment at 4–5, Rise St. James v. La. Dep’t of Env’t Quality, C‑694029 (La. 19th Jud. Dist. Ct. Sep. 12, 2022), https://climatecasechart.com/wp-content/uploads/case-documents/2022/20220908_docket-694029_judgment.pdf [https://perma.cc/8A6R-WZGF]. This case, however, did not primarily rely on constitutional arguments and was overruled in 2024. Rise St. James v. La. Dep’t Env’t Quality, 2023-0578 (La. App. 1 Cir. 1/19/24), 383 So. 3d 956. See discussion infra note 397. ↑
- In re Maui Elec. Co., 408 P.3d 1, 16 (Haw. 2017). ↑
- In re Haw. Elec. Light Co., 445 P.3d 673, 690 (Haw. 2019). ↑
- In re Gas Co., 465 P.3d 633, 650 (Haw. 2020). ↑
- For an example of a critique on state environmental rights as overly procedural, see Polk, supra note 3, at 165–70. ↑
- For examples in the United States Supreme Court, see Massachusetts v. EPA, 549 U.S. 497 (2007); Util. Air Regul. Grp. v. EPA, 573 U.S. 302 (2014); West Virginia v. EPA, 597 U.S. 697, 710 (2022). ↑
- See, e.g., Louisiana v. Biden, 64 F.4th 674 (5th Cir. 2023); Seven Cnty. Infrastructure Coal. v. Eagle Cnty., 145 S. Ct. 1497 (2025). ↑
- See, e.g., Am. Elec. Power Co. v. Connecticut, 564 U.S. 410, 424 (2011) (finding that the federal common law of public nuisance is displaced by the Clean Air Act); City of New York v. Chevron Corp., 993 F.3d 81, 100 (2d Cir. 2021) (rejecting the City of New York’s tort claims against the defendant, in large part because federal common law has been displaced by the Clean Air Act). ↑
- The claims are being brought by the city of Honolulu against several large fossil fuel companies, which will likely become the first of several suits brought by a state or local government to go to trial. In many instances, defendants have sought to remove cases to federal courts, while plaintiffs have sought to keep them in state courts. The Supreme Court has recently denied certiorari to challenges seeking to keep private law climate claims in federal courts, rather than state courts. In doing so, it has allowed suits (at least for the time being) to percolate in state trial courts across the country. See Karen Zraick, Supreme Court Clears a Path for Climate Lawsuits to Proceed, N.Y. Times (Jan. 13, 2025, at 4:06 PM), https://www.nytimes.com/2025/01/13/climate/supreme-court-hawaii-climate-lawsuit.html [https://perma.cc/5JBL-386D]. ↑
- For examples of significant constitutional climate cases elsewhere, see BVerfG, 1 BvR 2656/18 at para. 195 (finding the new federal climate legislation violated the German Constitution because it failed to identify concrete interim targets for reductions in greenhouse gas emissions and therefore safeguard the future); Afr. Climate All. v. Minister of Min. Res. & Energy, (56907/2021) [2024] ZAGPPHC 1172 at 9 para. 26 (4 December 2024) (S. Afr.) (holding that the South African government’s plan to install 1,500 megawatts of new coal‑fired power stations violated constitutional guarantees under its Constitution); Ranjitsinh v. Union of India, 2024 INSC 280, [20] (Supreme Court of India) (affirming the existence of a constitutional right to be free from the adverse effects of climate change). ↑
- For a survey of such cases, see Yeargain, supra note 3, at 1331–41. ↑
- Mission Statement, Our Children’s Tr., https://www.ourchildrenstrust.org/mission-statement [https://perma.cc/MT5G-T8V2]. ↑
- See, e.g., First Amended Complaint for Declaratory & Injunctive Relief at 99, Juliana v. United States, 217 F. Supp. 3d 1224 (D. Or. 2016) (No. 6:15‑cv‑01517‑TC), https://static1.squarespace.com/static/571d109b04426270152febe0/t/57a35ac5ebbd1ac03847eece/1470323398409/YouthAmendedComplaintAgainstUS.pdf [https://perma.cc/YM4P-JHM2]. ↑
- Id. ↑
- Id. ↑
- For statements of this three‑part standing analysis framework, see Allen v. Wright, 468 U.S. 737 (1984); Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992). ↑
- Petition for Writ of Certiorari at 11–12, Juliana v. United States, 145 S. Ct. 1428 (2025) (No. 24‑645), https://admin.climatecasechart.com/wp-content/uploads/case-documents/2024/20241209_docket-24-645_petition-for-writ-of-certiorari-1.pdf [https://perma.cc/R4SA-YB3L]. ↑
- Juliana v. United States, 947 F.3d 1159, 1172 (9th Cir. 2020). ↑
- Baker v. Carr, 369 U.S. 186, 217 (1962). The Court identified six factors pointing toward whether a matter presents a nonjusticiable political question: (1) “a textually demonstrable constitutional commitment of the issue to a coordinate political department”; (2) “a lack of judicially discoverable and manageable standards for resolving it”; (3) “the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial resolution”; (4) “the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government”; (5) “an unusual need for unquestioning adherence to a political decision already made”; or (6) “the potentiality of embarrassment from multifarious pronouncements by various departments on one question.” Id. For a more recent restatement of the political question doctrine, see generally Rucho v. Common Cause, 588 U.S. 684 (2019). ↑
- See, e.g., Aji P. v. State, 480 P.3d 438, 447 (Wash. Ct. App. 2021) (“[T]he Baker factors lead to the conclusion that the question posed inevitably requires determination of a nonjusticiable political question.”); Sagoonick v. State, 503 P.3d 777, 803 (Alaska 2022) (citing Kanuk ex rel. Kanuk v. State, 335 P. 3d 1088, 1100– 03 (Alaska 2014)). ↑
- Kanuk, 335 P.3d at 1095, 1100–03. ↑
- Id. at 1099. ↑
- For the court’s discussion of the political question doctrine, see Juliana, 947 F.3d at 1185–86. ↑
- Id. at 1173 (quoting Rucho, 588 U.S. at 721). ↑
- Id. at 1164. ↑
- “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” U.S. Const. amend. IX. ↑
- Juliana, 947 F.3d at 1165 (summarizing plaintiffs’ claims as being grounded in the Due Process Clause of the Fifth Amendment, the Ninth Amendment, and the public trust doctrine). For arguments related to climate rights and obligations which might arise under other clauses of the U.S. Constitution, such as the Property Clause, see generally Anthony Moffa, Constitutional Authority, Common Resources, and the Climate, 2022 Utah L. Rev. 169. ↑
- See, e.g., Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022) (limiting protections under the Fourteenth Amendment in the abortion context). ↑
- See Yeargain, supra note 3, at 1331–35. The public trust doctrine has been recognized by courts as a basis for restricting the uses to which certain resources—such as navigable waterways—can be put, generally finding that they must be preserved for public use. See, e.g., Ill. Cent. R.R. Co. v. Illinois, 146 U.S. 387, 460 (1892); Nat’l Audubon Soc’y v. Superior Ct., 658 P.2d 709, 727 (Cal. 1983). Extending such claims to the atmosphere, however, is a more challenging task. Though such arguments for an “atmospheric trust” have been prominently advanced in academic writing, see, for example, Mary Chrstina Wood, Nature’s Trust: Environmental Law for a New Ecological Age (2013), such claims have failed to gain acceptance in practice. See, e.g., Charnaik v. Brown, 475 P.3d 68, 84 (Or. 2020) (rejecting claims of a public trust extending to the atmosphere). ↑
- See, e.g., Mont. Env’t Info. Ctr. v. Dep’t of Env’t Quality, 1999 MT 248, ¶ 80, 296 Mont. 207, 988 P.2d 1236 (invalidating a state law which excluded certain discharges of water from environmental review); Robinson Twp. v. Commonwealth, 83 A.3d 901, 985 (Pa. 2013) (invalidating a state law which allowed the state to override local zoning laws concerning oil and gas development). See generally Yeargain, supra note 3, at 1336–38. ↑
- For a discussion of this provision, see supra note 58 and accompanying text. ↑
- Funk v. Wolf, 144 A.3d 228, 249–50 (Pa. Commw. Ct. 2016), aff’d, 158 A.3d 642 (Pa. 2017). ↑
- Id. at 233 (citing Payne v. Kassab, 361 A.2d 263, 273 (1976)); accord Robinson Twp., 83 A.3d at 669–70. ↑
- Funk, 144 A.3d at 250. ↑
- See generally Richard P. Allan et al., Summary for Policymakers, in Climate Change 2021 The Physical Science Basis: Working Group I Contribution to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change 3 (Valérie Masson‑Delmotte et al. eds., 2021). ↑
- See generally Hans‑Otto Pörtner et al., Summary for Policymakers, in Climate Change 2022 Impacts, Adaptation and Vulnerability: Working Group II Contribution to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change 3, 12–13 (Hans‑Otto Pörtner et al. eds., 2022). ↑
- Jacqueline Peel, Issues in Climate Change Litigation, 5 Carbon & Climate L. Rev. 15 (2011). ↑
- Id. at 16–17. ↑
- Id. at 17–18. ↑
- Id. at 18–21. For exemplary discussions on the fast‑developing field of attribution science, which seeks to fill this “proof” gap, see Michael Burger et al., The Law and Science of Climate Change Attribution, 45 Colum. J. Env’t L. 57 (2020); Friederike E.L. Otto et al., Causality and the Fate of Climate Litigation: The Role of the Social Superstructure Narrative, 13 Glob. Pol’y 736 (2022). ↑
- Peel, supra note 117, at 21–23. ↑
- See id. at 21–23. ↑
- In addition to those state constitutional law cases identified throughout this Section, see Charnaik v. Brown, 475 P.3d 68, 72 (Or. 2020); Sanders‑Reed ex rel. Sanders‑Reed v. Martinez, 2015‑NMCA‑063, ¶ 19, 350 P.3d 1221; Svitak ex rel. Svitak v. State, No. 69710‑2‑I, 2013 WL 6632124, at *1, 178 Wash. App. 1020 (Wash. Ct. App. 2013); Butler ex rel. Peshlakai v. Brewer, No. 1 CA‑CV 12‑0347, 2013 WL 1091209, at *7 (Ariz. Ct. App. Mar. 14, 2013); Filippone ex rel. Filippone v. Iowa Dep’t of Nat. Res., No. 12‑0444, 2013 WL 988627, at *4, 829 N.W.2d 589 (Iowa Ct. App. Mar. 13, 2013); Aronow v. State, No. A12‑0585, 2012 WL 4476642, at *3 (Minn. Ct. App. Oct. 1, 2012); Alec L. v. Jackson, 863 F. Supp. 2d 11, 17 (D.D.C. 2012), aff’d sub nom., Alec L. ex rel. Loorz v. McCarthy, 561 F. App’x 7 (D.C. Cir. 2014). See generally Yeargain, supra note 3, at 1331–41 (explaining why climate litigation is typically, at best, marginally successful). ↑
- See, e.g., N. Plains Res. Council, Inc. v. Mont. Bd. of Land Comm’rs, 2012 MT 234, ¶¶ 13–21, 366 Mont. 399, 288 P.3d 169 (refusing to take up arguments related to climate change); Funk v. Wolf, 144 A.3d 228, 248–52 (Pa. Commw. Ct. 2016), aff’d, 158 A.3d 642 (Pa. 2017). ↑
- See infra Section II.A.1. ↑
- Yeargain, supra note 3, at 1323. ↑
- Id. at 1326. ↑
- Id. ↑
- Id. at 1341. ↑
- Id. at 1344–45. ↑
- Polk, supra note 3, at 165–66. ↑
- Id. at 125. ↑
- See infra Section IV.B; infra Part V. ↑
- May, supra note 3, at 1283 (“[S]ubnational climate rights hold potential for advancing climate action more substantially and substantively than do national climate rights.”). ↑
- See id. at 1272–75. ↑
- See id. at 1275–76. ↑
- See id. at 1276–78. ↑
- Id. at 1279. ↑
- Id. at 1281 (“[C]ourts are often more comfortable interpreting and applying traditional socioeconomic rights that have a history of jurisprudential implementation . . . .”). ↑
- Much of the following account of the trial court’s decision draws on Sam Bookman, What We Learned in Held v. Montana, Harv. Env’t L. Rev. Online (Apr. 7, 2024), https://journals.law.harvard.edu/elr/2024/04/07/what-we-learned-in-held-v-montana [https://perma.cc/9BL5-7JUR]. ↑
- Id.; see also Held v. State, No. CDV‑2020‑307, slip op. at 2–3 (Mont. 1st Jud. Dist. Ct. Aug. 14, 2023) (describing plaintiffs’ initial requested relief); Held v. State, 2024 MT 312, ¶ 7, 419 Mont. 403, 560 P.3d 1235 (listing relief sought as including orders “enjoining the State from acting in conformance with the unconstitutional laws;” “requiring a full accounting of Montana’s [greenhouse gas] emissions;” “requiring the State to develop a remedial plan to reduce [greenhouse gas] emissions and to submit the plan to the court;” “retaining jurisdiction until the State has fully complied with the plan;” and “for a special master to be appointed to review the remedial plan”). ↑
- Held, slip op. at 3–4, 8. ↑
- Id. ↑
- See id. (describing the procedural history of the case and how other matters were resolved before trial). ↑
- Mont. Code Ann. § 75‑1‑201 (2022); Bookman, supra note 140 (describing the impact of this law and noting this provision was usually “known as the ‘MEPA Limitation’”). ↑
- § 75‑1‑201(2)(a). ↑
- In 2024, for example, Montana produced approximately 5 percent of coal in the United States. See Montana State Profile and Energy Estimates: Profile Analysis, U.S. Energy Info. Admin., https://www.eia.gov/state/analysis.php?sid=MT [https://perma.cc/C7K5-BNKZ] (last updated June 20, 2025). ↑
- See Paul McArdle & Elesia Fasching, Carbon Intensity of U.S. Power Generation Continues to Fall but Varies Widely by State, U.S. Energy Info. Admin.: Today in Energy (Sep. 13, 2022), https://www.eia.gov/todayinenergy/detail.php?id=53819# [https://perma.cc/B95J-SUBT] (observing that the carbon intensity of coal in the United States as of 2020 was 2274 lb of CO2/MWh, compared to 980 lb of CO2/MWh and “little to no CO2 emissions” from energy produced by nuclear and renewable power). ↑
- Montana State Profile and Energy Estimates, supra note 147 (“In 2023, almost half of Montana’s coal was exported to other countries, mostly to western Canada, where much of it was shipped on to Asia . . . . About three‑tenths of Montana’s coal was sent to other states, mainly by rail to Michigan, Minnesota, and Washington, for electricity generation. The remainder of Montana’s distributed coal was delivered within the state, almost all to the electric power sector.”). ↑
- Montana’s reliance on coal for its own energy production, however, means that Montana’s greenhouse gas contributions are still high on a per capita basis. In 2022, Montana emitted 53.744 million metric tons of carbon dioxide equivalent (MMTCO2e). See Greenhouse Gas Inventory Data Explorer, U.S. EPA, https://cfpub.epa.gov/ghgdata/inventoryexplorer/#allsectors/select/select/select/all [https://perma.cc/UWS2-9D7X] (last updated Aug. 18, 2023) (toggling the “Map View” on the dropdown menu). This is similar to all emissions produced by the state of Oregon, which has a population 3.75 times larger; and only 12.4 percent lower than those produced in the state of Maryland, which has a population 5.5 times larger. Id.; National, State, and County Housing Unit Totals: 2010–2020, U.S. Census Bureau, https://www.census.gov/programs-surveys/popest/technical-documentation/research/evaluation-estimates/2020-evaluation-estimates/2010s-totals-housing-units.html [https://perma.cc/W5U4-ECP5] (last updated Oct. 8, 2021). ↑
- Montana State Profile and Energy Estimates, supra note 147. ↑
- Specifically, the legislature was nervous after a judge rebuked the earlier MEPA Limitation. See Mont. Env’t Info. Ctr. v. Mont. Dep’t of Env’t Quality, No. DV 21‑1307, at 29 (Mont. 13th Jud. Dist. Ct. Apr. 6, 2023), https://admin.climatecasechart.com/wp-content/uploads/case-documents/2023/20230406_docket-DV21-01307_order.pdf [https://perma.cc/52YD-HH66] (emphasis added) (holding that while the MEPA Limitation does preclude review of out‑of‑state environmental impacts, it “does not absolve [the] DEQ of its MEPA obligation to evaluate a project’s environmental impacts within Montana,” and to interpret it otherwise is to instead misconstrue). ↑
- H.B. 971, 68th Leg., Reg. Sess., Mont. Code Ann. § 75‑1‑201(2)(a) (2023). Technically, the updated MEPA Limitation did allow such considerations, but only if “the United States [C]ongress amends the federal Clean Air Act to include carbon dioxide as a regulated pollutant.” Mont. H.B. 971, § 75‑1‑201(2)(b)(ii). Given the reality of congressional deadlock at the time of HB 971, the legislature was likely confident that no such regulation was forthcoming. ↑
- S.B. 557, 68th Leg., Reg. Sess., Mont. Code Ann. § 75‑1‑201(6)(a)(ii) (2023). ↑
- Id. ↑
- Mont. Const. art. II, § 3. ↑
- Mont. Env’t Info. Ctr. v. Dep’t of Env’t Quality, 1999 MT 248, ¶ 63, 296 Mont. 207, 988 P.2d 1236. ↑
- See Held v. State, 2024 MT 312 ¶¶ 20–30, 560 P.3d 1235 (considering as a novel issue whether the environmental right encompasses climate change). ↑
- Held v. State, No. CDV‑2020‑307, slip op. at 23 (Mont. 1st Jud. Dist. Ct. Aug. 14, 2023). ↑
- See discussion supra notes 96–123 and accompanying text. ↑
- Held, slip op. at 46–64 (reviewing each plaintiff’s specific harms as a result of climate change). ↑
- Id. at 46. ↑
- Id. at 30. ↑
- Id. at 33 (“For indigenous youth, like Ruby, Lilian, and Sariel [three of the plaintiffs], extreme weather harms their ability to participate in cultural practices and access traditional food sources, which is particularly harmful to indigenous youth with their place‑based cultures and traditions.”). ↑
- Id. at 33. ↑
- Id. at 66. ↑
- Id. at 66. ↑
- Id. at 67 (identifying total emissions for 2019 by accounting for “overlap among fossil fuels extracted, consumed, processed, and transported in Montana”). Total greenhouse gas emissions in 2019 are estimated at 49.8 gigatons of carbon dioxide equivalent (GtCO2e). See Johannes Friedrich, World Greenhouse Gas Emissions: 2019, World Res. Inst. (June 23, 2022), https://www.wri.org/data/world-greenhouse-gas-emissions-2019 [https://perma.cc/52TE-VN58]. ↑
- See Greenhouse Gas Inventory Data Explorer, supra note 150 (identifying Montana’s 2022 in‑state emissions as 53.744 MMTCO2e in the toggled “Map View”). ↑
- Held, slip op. at 67. ↑
- Id. at 69 (“Montana’s land contains a significant quantity of fossil fuels yet to be extracted.”). ↑
- Id. at 70. ↑
- Id. at 94 (citing Park Cnty. Env’t Council v. Mont. Dep’t of Env’t Quality, 2020 MT 303, ¶ 84, 296 Mont. 207, 477 P.3d 288) (“Any statute, policy, or rule which implicates a fundamental right must be strictly scrutinized and can only survive scrutiny if the State establishes a compelling state interest and that the action is narrowly tailored to effectuate that interest.”). ↑
- Id. at 102 (“Plaintiffs have a fundamental constitutional right to a clean and healthful environment, which includes climate as part of the environmental life‑support system.”). ↑
- Id. at 96. The court also found the second challenged law, SB 557, unconstitutional in violation of article IX, section 1(3) of the Montana Constitution, which obligates the legislature to provide “adequate remedies for the protection of the environmental life support system from degradation.” See id. at 86, 96–102. ↑
- See Blair Miller, Judge Sides with Youth in Montana Climate Change Trial, Finds Two Laws Unconstitutional, Daily Montanan (Aug. 14, 2023, at 11:19 AM), https://dailymontanan.com/2023/08/14/judge-sides-with-youth-in-montana-climate-change-trial-finds-two-laws-unconstitutional [https://perma.cc/H8AV-4MV2]. ↑
- Held v. State, 2024 MT 312, 560 P.3d 235. ↑
- Id. ¶ 20. ↑
- Id. ¶ 23. ↑
- Id. ¶ 27. ↑
- Id. (quoting Goodell v. Judith Basin Cnty., 224 P. 1110, 1114 (Mont. 1924)). ↑
- Id. (citing State v. Siegal, 934 P.2d 176, 180 (Mont. 1997) (“thermal imaging”); State v. Solis, 693 P.2d 518 (Mont. 1984) (“video recordings”); State v. Mefford, 2022 MT 185, ¶ 15, 517 P.3d 210 (“cell phone communications and data stored on cell phones such as a digital photo library”)). ↑
- Held, 2024 MT 312, ¶ 27 (citing Mont. Const. art. II, § 7). ↑
- Id. ↑
- Id. ↑
- Id. ¶ 28 (quoting Park Cnty. Env’t Council v. Mont. Dep’t of Env’t Quality, 2020 MT 303, ¶¶ 61–62, 477 P.3d 288). ↑
- Id. ¶ 29 & n.3. ↑
- Id. ↑
- Held v. State, No. CDV‑2020‑307, slip op. at 84 (Mont. 1st Jud. Dist. Ct. Aug. 14, 2023) (“Mae Nan Ellingson was a delegate to the 1972 Montana Constitutional Convention. Ms. Ellingson’s testimony was informative and provided useful context, including on the compilation of the records of the Constitutional Convention proceedings on which Montana courts regularly rely.”). ↑
- Held, 2024 MT 312, ¶ 38 (quoting Schoof v. Nesbit, 2014 MT 6, ¶ 20, 316 P.3d 831). ↑
- Id. ¶ 35, 36 (emphasis added). ↑
- Id. ¶ 40 (quoting Massachusetts v. EPA, 549 U.S. 497 (2007)). Massachusetts v. EPA remains the highwater mark of the Supreme Court’s climate‑related jurisprudence. Citing the Court’s conclusions on standing in this way is somewhat controversial, as the plaintiffs in that case were states entitled to “special solicitude,” rather than individual plaintiffs. 549 U.S. at 520. ↑
- Held, 2024 MT 312, ¶ 41 (emphasis removed) (quoting Schoof, 2014 MT 6, ¶ 21). ↑
- Id. ¶ 42. ↑
- Id. ↑
- Id. ¶ 40. ↑
- Id. ¶ 40. ↑
- Id. ¶ 43. ↑
- Id. ¶ 48. ↑
- Id. ¶ 51. ↑
- Id. ¶ 52 (citing Larson v. State ex rel. Stapleton, 2019 MT 28, ¶ 46, 394 Mont. 167, 434 P.3d 241). ↑
- Id. ¶ 67. ↑
- Id. ¶¶ 66–68. The court also rejected an argument made by the state that other statutes prohibited state agencies from considering climate impacts. Id. ¶¶ 48–52. ↑
- Id. ¶ 68. ↑
- Id. ¶ 73. The court also considered a fourth issue: whether the trial court had erred in denying a motion by the state to request a psychological examination of some of the plaintiffs. Id. ¶ 72. The court found it unnecessary to resolve this issue as the plaintiffs could establish standing on the basis of a constitutional injury, rather than “any mental emotional, physical, aesthetic, or property interests harmed by the State’s actions.” Id. ↑
- Complaint for Declaratory & Injunctive Relief, Navahine F. v. Dep’t of Transp., No. 1CCV‑22‑0000631 (Haw. 1st Cir. Ct., Apr. 6, 2023) [hereinafter Navahine F. Compl.], https://climatecasechart.com/wp-content/uploads/case-documents/2022/20220601_docket-1CCV-22-0000631_complaint.pdf [https://perma.cc/M4X4-DWAP]. ↑
- Mont. Const. art. II, § 3. ↑
- See supra text accompanying note 32. ↑
- Haw. Const. art. XI, § 1. ↑
- Navahine F. Compl., supra note 206, ¶¶ 2, 66, 99–106. ↑
- Haw. Const. art. XI, § 9. ↑
- The issue was not clearly addressed until 2010 in County of Hawai‘i v. Ala Loop Homeowners, 235 P.3d 1103 (Haw. 2010) (holding that article XI, section 9 could give rise to a private right of action). ↑
- Navahine F. Compl., supra note 206, ¶ 2. ↑
- Id. ¶ 5. Plaintiffs detailed a list of specific actions which they alleged amounted to a “pattern and practice of not cooperating and coordinating with other agencies to implement Hawai‘i’s climate change mitigation goals, lack of coherent and consistent planning to ensure Hawai‘i’s transportation system meets the State’s climate change mitigation needs, failure to implement plans and policies designed to reduce transportation emissions, custom of authorizing transportation projects that result in high levels of greenhouse emissions, and consistent lack of planning, budgeting, and funding to support vehicle electrification, multimodal travel, and the use of alternative fuels.” Id. ¶ 159. For further specifics, see id. ¶¶ 160–78. ↑
- Id. ¶ 2. “Emissions from the transportation sector, in particular, are a major and increasing contributor to Hawai‘i’s greenhouse gas emissions, expected to comprise nearly 60% of Hawai‘i’s total emissions by 2030.” Id. ¶ 4. ↑
- Id. ¶ 2. ↑
- Id. ¶ 3 (citing Haw. Rev. Stat. § 225P‑5 (2018), in particular for Hawai‘i’s statutorily enshrined target of net‑negative carbon emissions by 2045). ↑
- § 225P‑5. ↑
- Ruling on Motion to Dismiss, Navahine F. v. Dep’t of Transp., No. 1CCV‑22‑0000631 (Haw. 1st Cir. Ct., Apr. 6, 2023) [hereinafter Navahine F. Motion to Dismiss Ruling], https://climatecasechart.com/wp-content/uploads/case-documents/2023/20230406_docket-1CCV-22-0000631_ruling.pdf [https://perma.cc/N29Q-FQD3]. ↑
- Id. ¶ 2(D), at 1–2 (quoting Kealoha v. Machado, 315 P.3d 213, 216 (Haw. 2013)) (“In deciding a 12(b)(6) motion, the court should dismiss only when ‘it appears beyond doubt that the plaintiff can prove no set of facts in support of his or her claim that would entitle him or her to relief.’”). ↑
- Id. ¶ 3(D), at 4. ↑
- Id. ¶ 3(C), at 3. ↑
- Id. ↑
- Id. ¶ 3(C), at 3–4 (quoting Ching v. Case, 449 P.3d 1146, 1168 (Haw. 2019)). ↑
- Id. ¶ 3(C), at 3 (quoting Ching, 449 P.3d at 1168). ↑
- Id. ¶ 3(D), at 4 (citing Ching, 449 P.3d at 1176). ↑
- Haw. Const. art. XI, § 9. ↑
- In re Maui Elec. Co., 408 P.3d 1, 16 (Haw. 2017). ↑
- Id. at 264–65 (finding that another state law, Haw. Rev. Stat. § 269 (2025), gave plaintiffs a right to challenge the decision of a Public Utilities Commission). ↑
- Navahine F. Motion to Dismiss Ruling, supra note 219, ¶¶ 4(B)–4(C), at 5– 7 (citing Haw. Rev. Stat. § 196‑9(c)(6), (10) (2025); Haw. Rev. Stat. § 225P‑5 (2022); Haw. Rev. Stat. § 225P‑7 (2021); Haw. Rev. Stat. §§ 226‑4, 226‑17, 226‑18 (2025); Haw. Rev. Stat. §§ 264‑142, 264‑143 (2021)). ↑
- Id. ¶ 4(D), at 7–8. ↑
- Id. ¶ 5, at 10 (citing Tax Found. of Haw. v. State, 439 P.3d 127, 141 (Haw. 2019)). ↑
- Id. ↑
- Id. ¶ 6, at 10–11. ↑
- Trial Dates Determined in Navahine F. v. Hawai‘i Department of Transportation, EarthJustice (Aug. 3, 2023), https://earthjustice.org/press/2023/trial-dates-determined-in-navahine-f-v-hawaii-department-of-transportation [https://perma.cc/E4QM-LU7J]. ↑
- Press Release, Josh Green, Governor of Haw., Historic Agreement Settles Navahine Climate Litigation (June 20, 2024), https://governor.hawaii.gov/newsroom/office-of-the-governor-news-release-historic-agreement-settles-navahine-climate-litigation [https://perma.cc/2Z2A-5QGC]. ↑
- Navahine F. Settlement Ord., supra note 8, at 8. ↑
- Id. at 2. ↑
- Id. ↑
- Id. at 3–4 (quoting In re Maui Elec. Co., 506 P.3d 192, 202, 203 n.15 (Haw. 2022); citing In re Haw. Elec. Light Co., 526 P.3d 329, 336 (Haw. 2023)). ↑
- Id. at 4 (quoting In re Maui Elec., 506 P.3d at 202). ↑
- Id. at 4–5. ↑
- Id. at 6. ↑
- Id. at 5. ↑
- Id. ↑
- Id. ↑
- Id. at 6–7. ↑
- Id. at 7–8. ↑
- Id. at 8–9. ↑
- Id. at 9–10. ↑
- Press Release, Josh Green, supra note 236. ↑
- See id. (describing the state as leading the nation on cleaner energy in transportation). ↑
- For a canonical argument in favor of such an approach and surveying cases which employ special masters, however, see Charles F. Sabel & William H. Simon, Destabilization Rights: How Public Law Litigation Succeeds, 117 Harv. L. Rev. 1016 (2004). ↑
- Id. at 1068–69. For a definition of “special master,” see Wex Definitions Team, Special Master, Legal Info. Inst.: Wex https://www.law.cornell.edu/wex/special_master [https://perma.cc/456E-5QWD] (last updated Apr. 2025) (“A special master is an individual appointed by a court to carry out specific actions on its behalf.”). ↑
- See Navahine F. Motion to Dismiss Ruling, supra note 219, ¶ 6, at 10–11. ↑
- Hanson, supra note 7 (quoting Montana State Senate President Matt Reiger and House Speaker Brandon Ler as “alleging the justices were overstepping their authority” and warning justices to “buckle up”). ↑
- Complaint for Declaratory Relief, Natalie R. v. State, No. 22091658 (Utah 3d Jud. Dist. Ct. Nov. 9, 2022), https://climatecasechart.com/wp-content/uploads/case-documents/2022/20220315_docket-220901658_complaint.pdf [https://perma.cc/RY9J-J48M]. ↑
- Natalie R. v. State, 2025 UT 5, ¶¶ 7–13, 567 P.3d 550. ↑
- Utah Code Ann. § 79‑6‑301 (2024); Utah Code Ann. § 40‑10‑1 (2025); Utah Code Ann. § 40‑10‑17(2)(a) (2025). ↑
- § 40‑10‑17(2); Utah Code Ann. § 40‑6‑13 (2025). ↑
- Natalie R., 2025 UT 5, ¶ 14. ↑
- Utah Const. art. I, § 1 (“All persons have the inherent and inalienable right to enjoy and defend their lives and liberties . . . .”); id. § 7 (“No person shall be deprived of life, liberty or property, without due process of law.”). ↑
- Natalie R., 2025 UT ¶ 5, 15. ↑
- Memorandum Decision & Ord. at 2, Natalie R. v. State, No. 220901658 (Utah 3d Jud. Dist. Ct. Nov. 9, 2022), https://statecourtreport.org/sites/default/files/2024‑09/third-judicial-district-court-salt-lake-cnty-memorandum-decision-and-order.pdf [https://perma.cc/F4A8-AH2Z]. ↑
- Id. at 7. ↑
- Id. at 8. ↑
- Id. at 8. ↑
- Id. at 4. ↑
- Id. at 4–6. ↑
- Id. at 6 (citing Baker v. Carr, 369 U.S. 186, 217 (1962); Gregory v. Shurtleff, 2013 UT 18, ¶ 59 n.29, 299 P.3d 1098). ↑
- Natalie R. v. State, 2025 UT 5, ¶ 4, 567 P.3d 550. ↑
- Id. ¶ 45. ↑
- Id. ¶ 46 (citing Lyon v. Bateman, 228 P.2d 818, 820 (Utah 1951); Baird v. State, 574 P.2d 713, 716 (Utah 1978)). ↑
- Id. ¶¶ 48, 56, 59. ↑
- Id. ¶¶ 33–44. ↑
- Alicia Bannon, Judicial Advisory Opinions Explained, State Ct. Rep. (Nov. 17, 2023), https://statecourtreport.org/our-work/analysis-opinion/judicial-advisory-opinions-explained [https://perma.cc/Z2RY-VBFD] (observing that only eleven states currently authorize their state supreme courts to provide advisory opinions under any circumstances). ↑
- Natalie R., 2025 UT 5, ¶ 55. ↑
- Id. ¶ 54. ↑
- Id. ¶ 6. ↑
- Atencio Motion to Dismiss Ord., supra note 9. ↑
- Atencio v. State, No. A‑1‑CA‑42006, 2025 WL 1621659 (N.M. Ct. App. June 3, 2025). ↑
- In 2022, 13.3 percent of crude oil produced in the United States came from New Mexico, second only to Texas. Oil and Petroleum Products Explained, supra note 16. In 2023, 7.6 percent of all natural gas produced in the United States was produced in New Mexico, the fifth highest among all states. Which States Consume and Produce the Most Natural Gas?, U.S. Energy Info. Admin.: Frequently Asked Questions (FAQs), https://www.eia.gov/tools/faqs/faq.php?id=46 [https://perma.cc/KM69-WNWM] (last updated Oct. 30, 2024). ↑
- Complaint to Enforce Const. Rts. for a Healthful & Beautiful Env’t & Prot. of Nat. Res. from Despoilment Due to Oil & Gas Pollution, & to Enforce the Rts. of Frontline Cmtys., Indigenous Peoples, & Youth to Life, Liberty, Prop., Safety, Happiness, & Equal Protection in the Face of the State’s Permitting of Oil & Gas Prod. & Pollution, & for Declaratory & Injunctive Relief at 4, Atencio v. State, D‑101‑CV‑2023‑01038 (N.M. 1st Jud. Dist. Ct. June 10, 2024) [hereinafter Atencio Compl.], https:/climatecasechart.com/wp-content/uploads/case-documents/2023/20230510_docket-D-101-CV-202301038_complaint.pdf [https://perma.cc/2FFC-DUHG]. ↑
- Id. ¶¶ 161–68, at 41–42, ¶¶ 274–389, at 63–84. ↑
- Id. ¶¶ 390–421, at 84–90. ↑
- Id. ¶ 395, at 84. ↑
- Id. ¶ 398, at 85. ↑
- Id. ¶ 404–08, at 86–87. ↑
- Id. at 4. ↑
- For more on state environmental directives, see May, supra note 3, at 1255 (“[T]here are more than two hundred natural resource or environment‑related provisions in forty‑six state constitutions.”). ↑
- N.M. Const. art. XX, § 21. ↑
- David Brown, Montana’s Climate Change Lawsuit May See Sequels Across America, State Ct. Rep., https://statecourtreport.org/our-work/analysis-opinion/montanas-climate-change-lawsuit-may-see-sequels-across-america [https://perma.cc/BGS4-CP6G] (last updated June 26, 2025). ↑
- N.M. Const. art. II, § 4 (“All persons are born equally free, and have certain natural, inherent and inalienable rights, among which are the rights of enjoying and defending life and liberty, of acquiring, possessing and protecting property, and of seeking and obtaining safety and happiness.”). ↑
- N.M. Const. art. II, § 18 (“No person shall be deprived of life, liberty or property without due process of law; nor shall any person be denied equal protection of the laws. Equality of rights under law shall not be denied on account of the sex of any person.”). ↑
- Atencio Compl., supra note 283, ¶¶ 140–51, at 37–40. ↑
- Id. ¶¶ 140–41, at 37–38 (citing Martinez v. State, No. D‑101‑CV‑2014‑00793 (N.M. 1st Jud. Dist. Ct. July 20, 2018) (construing N.M. Const. art. XII, § 1)). ↑
- Id. ¶¶ 141–42, at 37–38. ↑
- Id. ¶¶ 143–44, at 38. ↑
- Id. ¶¶ 175–98, at 43–48. ↑
- Id. ¶¶ 199–216, at 48–52. ↑
- Id. ¶¶ 225–73, at 54–63. ↑
- Id. ¶¶ 217–24, at 52–54 (discussing both N.M. Stat. Ann. §§ 70‑2‑1, ‑2, ‑3 (1978) and N.M. Stat. Ann. § 70‑2‑12 (2019)). ↑
- Id. at 104–05. ↑
- Id. at 105–06. ↑
- Atencio Motion to Dismiss Ord., supra note 9. ↑
- Id. at 4. New Mexico’s legislature additionally argued that it was immune from liability and filed an additional motion for judgment on the pleadings. Id. ↑
- Id. at 5–7. The court did, however, conclude that the New Mexico legislature was shielded from liability, id. at 8, and granted defendants’ motion to permit interlocutory review of the decision, id. at 9–10. ↑
- Id. at 6–7 (“While the Court may ultimately decline to enter declaratory judgment or grant injunctive relief under the political question doctrine, the Court concludes that Plaintiffs have set forth claims upon which relief may be granted.”). ↑
- Id. at 7–8. ↑
- Atencio v. State, No. A‑1‑CA‑42006, 2025 WL 1621659, at *7 (N.M. Ct. App. June 3, 2025). One judge, however, dissented from this finding. See id. at *17 (Wray, J., concurring). ↑
- Id. at *11 (majority opinion). ↑
- Id. at *12–14 (citing Baker v. Carr, 369 U.S. 186, 217 (1962)). ↑
- Id. at *15. ↑
- Id. at *17 (Wray, J., concurring). ↑
- Id. at *18. ↑
- Beyond Hawai‘i, only the state constitutions of Illinois, Massachusetts, New York, Pennsylvania, and Rhode Island contain such rights. See supra note 33 and accompanying text. ↑
- See Polk, supra note 3, at 130–38. ↑
- See supra Section II.C. ↑
- Held v. State, 2024 MT 312, ¶ 60, 419 Mont 403, 560 P.3d 235. ↑
- For instance, agencies may differ as to how they price greenhouse gas emissions for the purposes of cost benefit analysis, employing a range of different (and often complex) methodologies for determining the “social cost of carbon.” For a range of different approaches, see generally Max Sarinsky, Inst. for Pol’y Integrity, The Social Cost of Carbon: Options for Applying a Metric in Flux (2023), https://policyintegrity.org/files/publications/SCC_Options_for_Applying_a_Metric_in_Flux_Policy_Brief_v2.pdf [https://perma.cc/M4J3-RG5W]. ↑
- Combined, as of 2022 Montana and New Mexico’s greenhouse gas inventories amount to 132.57MMTC02e, or 2.4 percent of total U.S. emissions (after accounting for land sequestration). See Inventory of U.S. Greenhouse Gas Emissions and Sinks, U.S. EPA: Greenhouse Gas Emissions, https://www.epa.gov/ghgemissions/inventory-us-greenhouse-gas-emissions-and-sinks [https://perma.cc/TRJ6-LSD5] (last updated July 1, 2025); Greenhouse Gas Inventory Data Explorer, supra note 150 (toggling the “Map View” in the dropdown menu). ↑
- See generally M. Crippa et al., Joint Rsch. Ctr. & Int’l Energy Agency, Eur. Comm’n, GHG Emissions of All World Countries (2023), https://edgar.jrc.ec.europa.eu/report_2023 [https://perma.cc/Z2CC-HVP7] (showing emissions data as of 2022). ↑
- See Michael Burger & Jessica Wentz, Downstream and Upstream Greenhouse Gas Emissions: The Proper Scope of NEPA Review, 41 Harv. Env’t L. Rev. 109, 150 (2017) (comparing two cases where this argument was posited—one that rejected it and another that “implicitly accepted the argument without any explanation of its decision”); Michael Burger & Jessica Wentz, Evaluating the Effects of Fossil Fuel Supply Projects on Greenhouse Gas Emissions and Climate Change Under NEPA, 44 Wm. & Mary Env’t L. & Pol’y Rev. 423, 490–97 (2020) (describing the argument but noting that courts have rejected it as “irrational” or “unsubstantiated”). For examples of scholarly refutations, see Fergus Green & Richard Deniss, Cutting with Both Arms of the Scissors: The Economic and Political Case for Restrictive Supply‑Side Climate Policies, 150 Climatic Change 73 (2018); Max Sarinsky & Peter Howard, Yes, Curbing U.S. Fossil Fuel Extraction Does Reduce Climate Pollution, Regul. Rev. (Nov. 29, 2021), https://www.theregreview.org/2021/11/29/sarinsky-howard-curbing-fossil-fuel-extraction-reduce-climate-pollution [https://perma.cc/T39N-D5CJ]. ↑
- At the time of writing, a draft plan to implement the decision had been released in June 2025 and remained open for comment. See Haw. Dep’t of Transp., Hawai‘i Energy Security and Waste Reduction Plan DRAFT (2025), https://hidot.hawaii.gov/wp-content/uploads/2025/06/Draft-ESWRP-6.27.25.pdf [https://perma.cc/TBW3-QL8B]. ↑
- In 2022, Hawai‘i produced 17.76MMTC02e of greenhouse gases, or 0.32 percent of U.S. emissions (accounting for sequestration from land). See Greenhouse Gas Inventory Data Explorer, supra note 150 (toggling the “Map View” from the dropdown menu for this value); Inventory of U.S. Greenhouse Gas Emissions and Sinks, supra note 321. ↑
- For critiques of the effectiveness of apparently successful climate litigation (and from international and comparative perspectives), see Benoit Mayer, The Contribution of Urgenda to the Mitigation of Climate Change, 35 J. Env’t L. 167 (2023) (questioning the contributions of the Urgenda case, decided by the Dutch courts, to the mitigation of climate change); Lucas Bergkamp & Jaap C. Hanekamp, Climate Change Litigation Against States: The Perils of Court‑Made Climate Policies, 24 Eur. Energy & Env’t L. Rev. 102 (2015) (arguing that courts are not well positioned to address climate change). ↑
- See generally James E. Hansen et al., Global Warming Has Accelerated: Are the United Nations and the Public Well‑Informed?, Env’t: Sci. & Pol’y for Sustainable Dev., Jan./Feb. 2025, at 6 (explaining the recent assessment of James Hansen, one of the world’s leading climate scientists, that the 2 degrees Celsius average increase in global temperatures, widely perceived as a threshold of “safe” global warming, is likely to be exceeded far sooner than expected). ↑
- See infra Section IV.A. ↑
- See infra Section IV.B. ↑
- See infra Section IV.C. ↑
- See infra Section IV.D. ↑
- See supra Section I.B. ↑
- See, e.g., Juliana v. United States, 947 F.3d 1159, 1165 (9th Cir. 2020) (dismissing a constitutional climate suit for lack of standing). ↑
- See, e.g., City of New York v. Chevron Corp., 993 F.3d 81 (2d Cir. 2021) (dismissing a tort suit brought against a private company in part because of failure to establish causation). ↑
- Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (citing Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)). For contrasting approaches to “imminence” in climate litigation, compare the majority holding of Massachusetts v. EPA, 549 U.S. 497, 521 (2007) (“EPA’s steadfast refusal to regulate greenhouse gas emissions presents a risk of harm to Massachusetts that is both ‘actual’ and ‘imminent.’”), with that of the dissent’s position, id. at 542 (Roberts, C.J., dissenting) (“[T]here is nothing in petitioners’ standing declarations and accompanying exhibits to support an inference of actual loss of Massachusetts coastal land from 20th‑century global sea level increases. It is pure conjecture. The Court’s attempts to identify ‘imminent’ or ‘certainly impending’ loss of coastal Massachusetts coastal land fares no better.”). ↑
- Held v. State, No. CDV‑2020‑307, slip op. at 86–90 (Mont. 1st Jud. Dist. Ct. Aug. 14, 2023). ↑
- Id. at 29. ↑
- Id. at 33. ↑
- Held v. State, 2024 MT 312, ¶ 32, 419 Mont. 403, 560 P.3d 1235 (“A plaintiff has legal standing to assert a claim if (1) the claim is based on an alleged wrong or illegality that has caused, or is likely to cause, the plaintiff to suffer a past, present or threatened injury to person, property, or exercise of civil or constitutional right.”). ↑
- Id. ¶ 33. ↑
- Indeed, the Montana Supreme Court cited a different provision of the Montana Constitution to suggest it might be owed with particular force to young people. Id. ¶ 36 (“[T]his right must be read together with the right guaranteed by Article XI, Section 1, of the Montana Constitution: ‘The state and each person shall maintain and improve a clean and healthful environment for present and future generations.’”). ↑
- Id. ¶ 37. ↑
- Id. ¶ 40. ↑
- Held v. State, No. CDV‑2020‑307, slip op. at 26–34 (Mont. 1st Jud. Dist. Ct. Aug. 14, 2023). ↑
- See John C.P. Goldberg, On Being a Nuisance, 99 N.Y.U. L. Rev. 864, 935– 47 (2024) (canvassing different approaches and theories justifying the special injury in the context of public nuisance law). ↑
- For a recent example of a plaintiffs successfully achieving this feat, see Smith v. Fonterra Co‑Operative Grp. Ltd. [2024] NZSC 5 (accepting, for the purposes of a strikeout application, that the plaintiff’s injuries as an Indigenous coastal landowner plausibly met the special injury requirement). ↑
- Held, 2024 MT 312, ¶¶ 32–55. ↑
- Interestingly, the Montana Supreme Court cited federal Supreme Court precedent for its position. See id. ¶ 40 (quoting Massachusetts v. EPA, 549 U.S. 497, 522 (2007)) (“Thus, the constitutional harm discussed above is concrete, though it is widely shared . . . . ‘That these climate‑change risks are ‘widely shared’ does not minimize Massachusetts’ interest in the outcome of this litigation.”). While the court’s citation is accurate, it should be noted that Massachusetts could be distinguished on the basis that standing was largely established on the basis of the “special solicitude” afforded to the state plaintiffs in that case, rather than the individual plaintiffs in Held. See 549 U.S. at 520 (“Given that procedural right [to directly challenge agency action] and Massachusetts’ stake in protecting its quasi‑sovereign interests, the Commonwealth is entitled to special solicitude in our standing analysis.”). ↑
- Atencio Compl., supra note 283, ¶¶ 309–24, at 70–73. ↑
- Id. ¶ 295, at 67. ↑
- Massachusetts, 549 U.S. at 517 (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)). ↑
- For a discussion of the myriad causation requirements in climate‑related tort claims, see Douglas A. Kysar, What Climate Change Can Do About Tort Law, 41 Env’t L. 1, 29–41 (2011). ↑
- See Peel, supra note 117, at 16–17 (describing this as the “drop in the ocean” problem). ↑
- See, e.g., City of New York v. Chevron Corp., 993 F.3d 81, 92 (2d Cir. 2021). ↑
- Often referred to as the “perfect substitute” argument, see supra note 323 for further descriptions. ↑
- Held v. State, No. CDV‑2020‑307, slip op. at 26–34 (Mont. 1st Jud. Dist. Ct. Aug. 14, 2023). ↑
- Id. at 67–70. ↑
- It should be noted, however, that the Held decisions do avoid some difficult issues. Neither the trial nor the appellate court directly deal with the perfect substitution argument or justify a particular threshold (such as more than “de minimis” or “nationally and globally significant”) as appropriate for establishing causation. See id. at 88. Neither court sets a threshold at which the state’s actions might “cause” injury or interference with the plaintiffs’ rights, nor does either court attempt to quantify to what extent plaintiffs’ injuries would be alleviated if Montana kept its fossil fuels in the ground. Instead, both courts (not unreasonably) observed that Montana’s contribution to overall emissions is indeed significant and vastly disproportionate to the state’s population. See id. at 65–70. ↑
- Held v. State, 2024 MT 312, ¶ 43, 419 Mont. 403, 560 P.3d 1235. ↑
- See Atencio Motion to Dismiss Ord., supra note 9, at 2–3, 6–7 (finding the plaintiffs alleged sufficiently specific facts to support their claim at the motion to dismiss stage). ↑
- See id. ↑
- Atencio v. State, No. A‑1‑CA‑42006, 2025 WL 1621659, at *4–6 (N.M. Ct. App. June 3, 2025) (explaining that the requested relief was inconsistent with New Mexico’s overall scheme of separation of powers); Natalie R. v. State, 2025 UT 5, ¶ 4, 567 P.3d 550 (observing that plaintiffs “lack standing to challenge the remaining statutory provisions because success on those challenges would not provide relief that is likely to redress their injuries”). ↑
- See Juliana v. United States, 947 F.3d 1159, 1173 (9th Cir. 2020) (“We doubt that any such plan can be supervised or enforced by an Article III court. And, in the end, any plan is only as good as the court’s power to enforce it.”). ↑
- Id. (citing Rucho v. Common Cause, 588 U.S. 684, 721 (2019)). ↑
- See, e.g., City of New York v. Chevron Corp., 993 F.3d 81, 98 (2d Cir. 2021) (quoting New England Legal Found. v. Costle, 666 F.2d 30, 33 (2d. Cir. 1981)) (finding that judge‑made nuisance law is “ill‑suited to address ‘the technically complex area of environmental law’”); see also Am. Elec. Power Co. v. Connecticut, 564 U.S. 410, 428 (2011) (“Federal judges lack the scientific, economic, and technological resources an agency can utilize in coping with issues of this order.”); Kanuk v. State, 335 P.3d 1088, 1099 (Alaska 2014) (“The limited institutional role of the judiciary supports a conclusion that science‑ and policy‑based inquiry here is better reserved for executive‑branch agencies or the legislature . . . .”); Aji P. v. State, 480 P.3d 438, 447 (Wash. Ct. App. 2021) (“[T]he Baker factors lead to the conclusion that the question posed inevitably requires determination of a nonjusticiable political question.”); Juliana, 947 F.3d at 1171 (“As the opinions of their experts make plain, any effective plan would necessarily require a host of complex policy decisions entrusted, for better or worse, to the wisdom and discretion of the executive and legislative branches.”). ↑
- Juliana, 947 F.3d at 1185 (quoting Baker v. Carr, 369 U.S. 186, 217 (1962)). ↑
- Natalie R. v. State, 2025 UT ¶ 4, 567 P.3d 550. ↑
- For an argument contesting the efficacy of such litigation in the context of public education, see Michael Heise, Litigated Learning and the Limits of Law, 57 Vand. L. Rev. 2417 (2004). Contra Sabel & Simon, supra note 253, at 1016 (arguing instead that the emerging experimentalist model of public law litigation “moots [its] many common criticisms”). ↑
- See, e.g., Juliana, 947 F.3d at 1173 (“We doubt that any such plan can be supervised or enforced by an Article III court. And in the end, any plan is only as good as the court’s power to enforce it.”). ↑
- Held v. State, No. CDV-2020‑307, slip op. at 102 (Mont. 1st Jud. Dist. Ct. Aug. 14, 2023). ↑
- See supra Section II.B. ↑
- See supra Section II.B. ↑
- Atencio Compl., supra note 283, at 105. ↑
- Atencio v. State, No. A‑1‑CA‑42006, 2025 WL 1621659, at *11 (N.M. Ct. App. June 3, 2025). ↑
- Complaint for Declaratory & Injunctive Relief ¶ 1–2, at 4–5, Sagoonick v. State, No. 3AN‑24‑06580CI (Alaska Super. Ct. Oct. 30, 2018) [hereinafter Sagoonick Compl.], https://admin.climatecasechart.com/wp-content/uploads/case-documents/2024/20240522_docket-3AN-24-06508CI_complaint.pdf [https://perma.cc/M3UM-LB59]; see also Complaint for Declaratory & Injunctive Relief at 6–9, Dunn v. Wis. Pub. Serv. Comm’n, No. 2025CV002797 (Wis. Cir. Ct. Aug. 22, 2025), https://midwestadvocates.org/wp-content/uploads/Dunn-v-PSC-Complaint-8.22.25.pdf [https://perma.cc/9CQ8-DC6W] (challenging two particular laws in Wisconsin which limit the development of renewable energy). ↑
- Dharna Noor, Young Alaskans Sue State Over Fossil Fuel Project They Claim Violates Their Rights, Guardian: News (May 23, 2024, at 10:22 AM), https://www.theguardian.com/us-news/article/2024/may/22/alaska-youth-climate-change‑lawsuit [https://perma.cc/ZP7H-FAHM]; Sagoonick Compl., supra note 375, ¶ 1, at 4. ↑
- Sagoonick Compl., supra note 375, at 40–47 (citing Alaska Const. art. I, § 7; id. art. VIII, §§ 3, 4, 7, 15, 17). ↑
- Sagoonick v. State, 503 P.3d 777, 782 (Alaska 2022). ↑
- There have been major showdowns between the Montana Supreme Court and the Montana state legislature. In 2021, for example, lawmakers attempted to subpoena internal judicial communications, a move that was tersely rebuffed by the state’s Chief Justice. E.g., Keith Schubert, Justice Argues Legislative Subpoena Has No Legitimate Purpose, Daily Montanan (May 6, 2021, at 7:15 PM), https://dailymontanan.com/2021/05/06/justice-argues-legislative-subpoena-has-no-legitimate‑purpose [https://perma.cc/L8K7-7ZK9]. More recently, lawmakers have proposed several measures to limit the Montana Supreme Court’s authority, including curbs on judicial review, introduction of partisan judicial elections, court-packing and restructuring bills, and efforts to limit injunctive remedies. E.g., Tom Lutey, Montana Republicans Launch into Debate of 27 Judicial Reform Bills, Mont. Free Press (Jan. 14, 2025), https://montanafreepress.org/2025/01/14/montana-republicans-launch-into-debate-of-27-judicial-reform-bills [https://perma.cc/MA8K-WW9Q]. ↑
- Jennifer Marlon et al., Yale Climate Opinion Maps 2024, Yale Program on Climate Change Commc’n (Aug. 28, 2025), https://climatecommunication.yale.edu/visualizations-data/ycom-us [https://perma.cc/HC75-L57M]. ↑
- Id. (attracting 75 percent support). ↑
- Press Release, Josh Green, supra note 236. ↑
- Seventy‑eight percent of Hawaiians support regulating carbon dioxide as a pollutant, 71 percent believe fossil fuel companies should be required to pay a carbon tax, and 66 percent believe that Congress should do more to address global warming. See Marlon et al., supra note 380. ↑
- Stuart Scheingold has described such rights‑based action as “playing on the gap between existing patterns of politics and our cherished ideals.” See Stuart A. Scheingold, The Politics of Rights: Lawyers, Public Policy, and Political Change 84 (Univ. of Mich. Press 2d ed. 2004) (1974). ↑
- Colo. Coll. State of the Rockies Project, 2024 Conservation in the West Poll: New Mexico (2024), https://www.coloradocollege.edu/other/stateoftherockies/_documents/2024-poll-data/2024%20State%20Fact%20Sheets%20NM.pdf [https://perma.cc/YVG9-TD5D]. ↑
- Id. (recording that 74 percent of New Mexicans believe low levels of water in rivers is a serious problem, 90 percent support requiring oil and gas companies to pay for clean‑up and land restoration costs, and 70 percent prefer that leaders place more emphasis on environmental protection—rather than “maximizing the amount of land available for drilling and mining”). ↑
- Id. ↑
- Indeed, New Mexico’s Governor, Michele Lujan Grisham, has consistently presented herself as an advocate for environmental protection and action on climate change. See, e.g., Laura Paskus, Gubernatorial Candidate Michelle Lujan Grisham on the Environment, N.M. Pol. Rep. (Apr. 19, 2018), https://nmpoliticalreport.com/2018/04/19/gubernatorial-candidate-michelle-lujan-grisham-on-the-environment [https://perma.cc/7YYP-CBXA]; Press Release, Michelle Lujan Grisham, Governor of N.M., Governor Issues Executive Order Expanding and Investing in Climate‑Ready and Infrastructure Workforce for New Mexico (Sep. 23, 2024), https://www.governor.state.nm.us/2024/09/23/governor-issues-executive-order-expanding-and-investing-in-climate-ready-and-infrastructure-workforce-for-new-mexico [https://perma.cc/NS83-DGW9]. Despite this, environmental groups have criticized Governor Lujan Grisham for failing to put this rhetoric into action. See generally Ctr. for Biological Diversity, Governor Lujan Grisham’s Climate Score: On the Verge of Failure (2023), https://www.biologicaldiversity.org/programs/public_lands/pdfs/Gov-Lujan-Grisham-Climate-Scorecard-2023-09-08.pdf [https://perma.cc/EPS8-Q6F5]. ↑
- Polk, supra note 3, at 165–75. ↑
- See, e.g., Navahine F. Motion to Dismiss Ruling, supra note 219, ¶ 4(A), at 5, ¶ 4(C), at 6–7 (citing In re Maui Elec. Co., 408 P.3d 1, 16 (Haw. 2017)) (observing that even though Hawai‘i’s environmental right is not framed as a freestanding environmental interest, it can take on that character when environmental interests coincide with statutory rights). ↑
- See Michael B. Gerrard & Edward McTiernan, New York’s Green Amendment: The First Decisions, N.Y.L.J. (Mar. 8, 2023), https://scholarship.law.columbia.edu/cgi/viewcontent.cgi?article=4924&context=faculty_scholarship [https://perma.cc/PP5P-UYBX] (concluding that the Green Amendment could have implications for climate suits, noting in particular that “the Green Amendment could add to the force of Section 7.2 of the CLCPA, which requires all state agencies to consider whether their decisions are inconsistent with the attainment of the statewide greenhouse gas emissions limits”); see also Friends of Fort Greene Park v. N.Y.C. Parks & Recreation Dep’t, 239 N.Y.S.3d 457, 493 (N.Y. Sup. Ct. 2025) (finding that New York’s “Green Amendment” does not apply in the context sought by plaintiffs (upgrade of a local park), but that it “provides an independent cause of action that may be applicable to the government’s failures to protect New Yorkers from contaminated drinking water, polluted air, pollutants, extreme weather and climate change events”). ↑
- Katrina Fischer Kuh, Nicholas A. Robinson & Scott Fein, New York’s Constitutional Guarantee of Environmental Rights, 27 N.Y.U. J. Legis. & Pub. Pol’y 361, 372–84 (2024). ↑
- Id. at 389. ↑
- Danielle Prokop, Green Amendment Gets Grilled, but Moves Forward, Source N.M. (Feb. 4, 2025, at 2:59 PM), https://sourcenm.com/2025/02/04/green-amendment-gets-grilled-but-moves-forward [https://perma.cc/KNT4-8Z6F]. ↑
- See supra notes 45–53 and accompanying text. ↑
- Atencio v. State, No. A‑1‑CA‑42006, 2025 WL 1621659, at *18 (N.M. Ct. App. June 3, 2025) (Wray, J., concurring). ↑
- A hint of such an approach can be found in Rise St. James v. Louisiana Department of Environmental Quality. See Written Reasons for Judgment, supra note 81. In that case, plaintiffs argued that the defendant’s issuance of air permits for a large chemical manufacturing complex violated, among other things, article IX, section 5 of the Louisiana Constitution. Id. at 1–3. That section contains a direction that “[t]he natural resources of the state . . . shall be protected, conserved, and replenished,” and requires the legislature to enact laws to that effect. Id. at 11 (quoting La. Const. art. IX, § 1). The court found that the defendant agency was acting as a “public trustee over the environment” and accordingly owed additional procedural obligations to the plaintiffs. Id. at 4 (citing Save Ourselves, Inc. v. La. Env’t Control Comm’n, 452 So. 2d 1152, 1160 (La. 1984)). Though the decision was overturned on appeal, the appellate court upheld the lower court’s interpretation of article IX, section 1. See Rise St. James v. La. Dep’t Env’t Quality, 2023‑0578, p. 2– 5 (La. App. 1 Cir. 1/19/24), 383 So. 3d 956, 961–63 (citing Save Ourselves, 452 So. 2d at 1157). ↑
- See supra Section II.B.1. ↑
- Navahine F. Motion to Dismiss Ruling, supra note 219, ¶ 3(C), at 3 (quoting Ching v. Case, 449 P.3d 1146, 1168–69 (Haw. 2019)). ↑
- See, e.g., Keith E. Whittington, Is Originalism Too Conservative?, 34 Harv. J.L. & Pub. Pol’y 29, 29 (2010) (“Originalism as an approach to constitutional theory and constitutional interpretation is often associated with conservative politics.”). ↑
- See Richard N.L. Andrews, Managing the Environment, Managing Ourselves: A History of American Environmental Policy 213 (3d ed. 2020) (observing that “the year 1970 marked the beginning of the modern environmental policy era”); Richard J. Lazarus, The Making of Environmental Law 67 (2004) (“The 1970s were an extraordinary decade for environmental law.”). ↑
- Held v. State, No. CDV‑2020‑307, slip op. at 84–85 (Mont. 1st Jud. Dist. Ct. Aug. 14, 2023) (“Mae Nan Ellingson was a delegate to the 1972 Montana Constitutional Convention. Ms. Ellingson’s testimony was informative and provided useful context, including on the compilation of the records of the Constitutional Convention proceedings on which Montana courts regularly rely. . . . As reflected in the Constitutional Convention Transcripts, Ms. Ellingson suggested the ‘legislature shall provide adequate remedies to prevent’ language of Article IX, Section 1 to assure greater protections of the current environment.”). ↑
- Held v. State, 2024 MT 312, ¶ 25, 419 Mont. 403, 560 P.3d 1235 (citing Mont. Env’t Info. Ctr. v. Dep’t of Env’t Quality, 1999 MT 248, 296 Mont. 207, ¶ 77, 988 P.2d 1236). ↑
- Zackin, supra note 19, at 13. ↑
- Id. at 14. ↑
- See, e.g., Held, 2024 MT 312, ¶ 36 (quoting Park Cnty. Env’t Council v. Mont. Dep’t of Env’t Quality, 2020 MT 303, ¶ 63, 402 Mont. 168, 477 P.3d 288) (“Montanans’ right to a clean and healthful environment is contemplated by an affirmative duty upon their government to take active steps to realize this right.”); In re Maui Elec. Co., 506 P.3d 192, 202 (Haw. 2022) (quoting Lānaʻians for Sensible Growth v. Land Use Comm’n, 463 P.3d 1153, 1163 (Haw. 2020)) (“[A]n agency of the State must perform its statutory function in a manner that fulfills the State’s affirmative constitutional obligations.”). ↑
- Utah Const. art. I, § 30. ↑
- See Noor, supra note 376 (discussing new strategies by complainants to challenge specific fossil fuel projects rather than the government’s overall support of fossil fuels). ↑
- Yeargain, supra note 3, at 1326. ↑
- E.g., Helen Hershkoff, Introductory Remarks: The Promise and Limits of State Constitutions, 99 N.Y.U. L. Rev. 1895, 1911 (2024); Robert F. Williams, State Constitutional Law Processes, 24 Wm. & Mary L. Rev. 169, 192 (1983). ↑
- Hershkoff, supra note 410, at 1902. ↑
- Indeed, the Paris Agreement, the primary global agreement on climate change emissions reductions, is expressly a bottom‑up treaty which sets no centralized obligations to reduce emissions. See, e.g., Maria L. Banda, The Bottom‑Up Alternative: The Mitigation Potential of Private Climate Governance After the Paris Agreement, 42 Harv. Env’t L. Rev. 325, 330–40 (2018). ↑
- See, e.g., West Virginia v. EPA, 597 U.S. 697, 724–30 (2022) (refusing to give deference to agencies interpreting powers to address climate change under section 11(d) of the Clean Air Act on the basis that energy regulation amounts to a “major question”); Sackett v. EPA, 598 U.S. 651, 679–80 (2023) (interpreting the Clean Water Act to exclude the possibility of federal regulation over many United States waterways). ↑
- For an empirical analysis of the value of claims in a similar context (asserting rights of Nature), see Sam Bookman, The Puzzling Persistence of Nature’s Rights, 2025 Utah L. Rev. 165, 200–10. ↑
- See, e.g., Scheingold, supra note 384, at 84 (observing that even where rights‑based organizing lacks a “direct payoff[,]” there may still be benefits in “playing on the gap between existing patterns of politics and our cherished ideals”); Tomiko Brown‑Nagin, Elites, Social Movements, and the Law: The Case of Affirmative Action, 105 Colum. L. Rev. 1436, 1500 (2005) (canvassing a range of indirect benefits that law‑based organizing can have). ↑