Held v Montana: historic win for climate justice and the right to a healthy environment
In their latest blog, Nina De Alaya Parker and Pia Mitchell say a ruling by the Montana court demonstrates the promise of a constitutional right to a healthy environment in seeking alternative pathways to climate justice.
Posted on 24 October 2023
Human health is inextricably linked to climate change. Climate change affects the social and environmental determinants of health – clean air, safe drinking water, sufficient food and secure shelter. An increase in pollution is not only damaging ecosystems and increasing climate shocks, it is also having a proven detrimental impact on human health and wellbeing.
From raw sewage being pumped into rivers and seas by private water companies, to governments granting new oil and gas projects, powerful bodies continue to show a reluctance to act. Yet could the emergence of a human right to a clean and healthy environment (R2HE) be a promising new pathway to climate justice?
At the 76th session of the UN General Assembly (“UNGA”) in July 2022, the UNGA voted unanimously to recognise the right to a clean and healthy environment as a human right.
The UNGA stated in its recognition of R2HE, that human rights and the environment are interdependent and indivisible, and that R2HE is therefore necessary for the full enjoyment of a wide range of other rights such as the right to life, privacy, health, food, water and sanitation and development, among others. For example, a person’s R2HE could be breached by an oil spill which causes damage to their water sources, and food systems.
Poor air quality can violate the rights to life, health, and a clean and healthy environment. Such recognition of the right has the ability to empower all people with a critical tool to hold government, big polluters and all those responsible for environmental harm, to account.
July 2023 was the hottest month since global records began according to scientists at NASA's Goddard Institute for Space Studies.
However, the following month, for the first time in US constitutional history, a court ruled impacts from climate change on human health as ‘unconstitutional’, and that the claimants R2HE had been breached. Here we summarise the claim and explain what this ruling could mean for the surge of claimants globally invoking R2HE as a means of prevention, accountability, and redress.
On 8 August 2023, the Montana Trial Court found in favour of a group of young plaintiffs who were awarded both injunctive and declaratory relief against the State of Montana and various other defendants.
The basis for the plaintiffs’ claims was a simple but powerful clause in the State Constitution, which declares:
Section 3. Inalienable rights. All persons are born free and have certain inalienable rights. They include the right to a clean and healthful environment and the rights of pursuing life's basic necessities, enjoying and defending their lives and liberties, acquiring, possessing and protecting property, and seeking their safety, health and happiness in all lawful ways. In enjoying these rights, all persons recognize corresponding responsibilities. (emphasis added)
The plaintiffs’ arguments relied on the unconstitutionality of Montana’s fossil-fuel-based energy industry, with particular focus upon a provision within the Montana Environmental Policy Act (MEPA) which restricted the ability of decision makers to take into account the effects of greenhouse gas (GHG) emissions when determining whether to approve new fossil fuel projects.
The Court commented that the provision forbidding consideration of GHG emissions both globally and within the State essentially prevented the decision maker from making a properly informed decision as to whether or not the proposed project would infringe upon the Montana Constitution. It follows that the decision-maker would be unable to consider if their decision would infringe the inalienable rights of the Montanan people.
In making its decision, the Court made key findings of fact, noting in particular that it was “possible to calculate the amount of CO2 and GHG emissions that results from fossil fuel extraction, processing and transportation, and consumption activities that are authorized by Defendants” and that “[e]very ton of fossil fuel emissions contributes to global warming and impacts to the climate and thus increases the exposure of the Youth Plaintiffs to harms now and additional harms in the future.”
The Court recounted expert testimony which specifically outlined the impacts of climate change upon Montana’s ecosystem, and summarised the submissions of the plaintiffs as to how those impacts had in turn injured them and would continue to injure them in the future. The court concluded that, via the MEPA provision, the State was failing its affirmative duty to preserve the plaintiffs’ constitutional right to a “clean and healthful environment”.
The Montanan constitution, and availability of injunctive relief
The inclusion in the State constitution of an inalienable right to a clean and healthful environment was central to the court’s ruling. The court draws upon the 1972 Montanan Constitutional Convention, where Montana’s second and current constitution was drafted and enacted, to highlight that, etymologically, the inclusion of ‘the right to a clean and healthful environment’ uses "forward-looking and preventative language" which "clearly indicates that Montanans have a right not only to reactive measures after a constitutionally-proscribed environmental harm has occurred, but to be free of its occurrence in the first place."
It was the intention of the drafters to not only prevent environmental degradation, but to “affirmatively require enhancement”. The constitutional drafters succeeded in creating a powerful tool in climate litigation, which lends itself effectively to injunctive relief. In brief, injunctive relief refers to an order that a court may make to stop a defendant from doing something. This enables courts to prevent harm from happening in the first place, rather than remedying harm after the fact.
A right to a healthy environment – A global movement
The Montanan Constitution is not unique in its recognition of the R2HE. As noted by the Universal Rights Group at New York University, “there are at least 110 States where the R2HE enjoys constitutional protection”. Combined with those States that have recognised the right in lesser legislation, and/or via international treaties, "this means that more than 80 per cent of UN Member States ...now legally recognise the right to a safe, clean, healthy and sustainable environment, in different formulations and phraseologies, and with varying degrees of enforcement and impact.”
The UNGA’s resolution undoubtedly sparked hope amongst climate litigators that we might see increasing willingness on the part of legislatures to introduce constitutional and/or statutory recognition of R2HE. The Universal Rights Group notes that “global recognition increasingly serves as a catalyst for systemic and transformative change” and cites the 2010 UN resolution recognising the right to water as examples.
Globally, citizens with the right enshrined in their state law have continued to invoke R2HE against powerful bodies to account for and offer redress from environmental harms:
- In South Africa, an NGO challenged the government’s decision to issue a license to build a coal power station, again invoking RH2E in South Africa’s constitution as a basis to claim.
- In Argentina, a community living in the heavily polluted area of Buenos Aires along the Matanza-Riachuelo River basin, lodged a claim against the federal, provincial, and municipal governments and multiple industrial polluters, again relying on Argentina’s constitution which gives the people a right to a “healthy and balanced environment fit for human development.”
- In a landmark moment for climate litigation, in September this year, six Portuguese youth claimants brought proceedings in the European Court of Human Rights (ECHR) against 33 Member States of the EU and the Council of Europe, arguing that those States are failing to do enough to tackle climate change and that this failure amounts to a violation of their rights under the European Convention on Human Rights as well as R2HE as articulated more broadly in international human rights law. This is the largest climate case to date.
Claims employing RH2E have not been invariably successful. However, in Norway a group of NGOs invoked R2HE in the Norwegian constitution to challenge the validity of the public authorities’ decision to authorise new oil and gas production licenses in the Arctic. The plaintiffs lost at trial and on appeal, and have since taken their complaint to the ECHR. R2HE was invoked by claimants in Kenya against a metal refinery company’s lead acid battery recycling factory for environmental and human health harms caused by toxins from the factory seeping into their village. The initial success of this claim has since been overturned on appeal.
With no legislative right to a healthy environment, the UK is trailing behind the 153 states globally who have incorporated the right into their national laws. This historic moment in the wake of the UN General Assembly’s resolution is a chance for the UK to change this and catch up. Currently the UK has only partly ratified the Aarhus convention which includes a right to a healthy environment. Looking forward, pressure is starting to build for the statutory recognition of R2HE in the UK.
Leigh Day’s Carol Day is one of the key drivers behind a proposed Environmental Bill which, if it were to become an Act of Parliament, would incorporate R2HE into UK law. The Environmental Rights Bill forms an important component of Wildlife and Countryside Link’s Nature 2030 Campaign.
There is a further, alternative route in the recognition of R2HE in UK domestic law, and that is through the European Convention on Human Rights (the Convention) and the Council of Europe. If the Council of Europe votes to recognise R2HE as an official Convention right, the UK as an existing member of the Council of Europe will be obliged to transpose R2HE into the Human Rights Act 1998, which currently transposes all Convention rights into UK law.
However, with the current UK government rolling back climate policy, it will be a challenge to get R2HE transposed into UK law, which is why many climate organisations, charities, campaign groups and NGOs are keeping up the pressure nationally.
As more governments appear primed to introduce R2HE in domestic legislation, drafters and climate litigators should consider what challenges may be ahead, and what can be learnt from other jurisdictions as to how best to draft and then make use of the R2HE. The case of Held demonstrates the importance of a forward-looking right that can unlock a range of remedies from damages for harms already committed, to preventative measures from injunctive relief. The court’s position in Held also serves as a warning to current and future defendants that arguments of a weak causative link between the harm and particular policies and/or projects may not hold water. Held demonstrates that courts are willing and able to rely on expert testimony in finding causative links between particular projects approved under particular policies, and poor health outcomes for particular plaintiffs.
The Court in Held also follows a continuing trend of recognizing the special relationships that exist between indigenous communities and land when considering whether R2HE has been breached. Indigenous communities who depend on their land and forests for food, water, medicine and identity have majorly influenced the proliferation of R2HE. This year the United Nations Human Rights Prize has been awarded to the Global Coalition of Civil Society, Indigenous Peoples, Social Movements, and Local Communities for the Universal Recognition of the Human Right to a Clean, Healthy, and Sustainable Environment for its role in advocating for the universal recognition of this right by the UNGA. The award recognises decades of campaigning and the importance and power of collective action and advocacy.
With further claims in Colombia, Canada, Germany and many more past and pending, this proliferation of R2HE invoked against states and companies is creating a domino effect globally - with every successful claim an impetus for another community to take action for people and planet.