The Right to a Healthy Climate?

One snowy Sunday in March, Badge and Lander Busse tromped into the forest behind their house, their three hunting dogs in tow. It was in these woods, just outside Glacier National Park, in Montana, that the teen boys learned to hunt, fish, dress a deer, and pick birdshot from Hungarian partridges.

It was also here that Badge and Lander, ages 15 and 18, grew attuned to the signals of a rapidly warming planet—torrential rains that eroded their hiking trails, wildfires that scarred the land, smoke so thick it forced them indoors.

Watching their cherished wilderness succumb to the effects of climate change enraged the Busse boys, and three years ago, they decided to do something about it. Along with 14 other young Montanans, they joined with an environmental legal organization and sued the state. Their case, Held v. Montana, heads to court in June.

One snowy Sunday in March, Badge and Lander Busse tromped into the forest behind their house. Their three hunting dogs followed. The woods were just outside Glacier National Park, in Montana. It’s where the teen boys learned to hunt, fish, dress a deer, and pick birdshot from Hungarian partridges.

It was also here that Badge and Lander, ages 15 and 18, grew attuned to the signals of a rapidly warming planet. Torrential rains have eroded their hiking trails. Wildfires have scarred the land with smoke so thick that it forced them indoors.

Watching the wilderness succumb to the effects of climate change enraged the Busse boys. Three years ago, they decided to do something about it. Along with 14 other young Montanans, they joined with an environmental legal organization and sued the state. Their case, Held v. Montana, heads to court in June.

In their complaint, filed in 2020, the young activists seized on language in the Montana state constitution that gives residents “the right to a clean and healthful environment” and stipulates that the state and individuals are responsible for maintaining and improving the environment “for present and future generations.”

By virtue of those few words, they argue, Montana’s extensive support for fossil fuels like coal, oil, and gas is unconstitutional because the resulting pollution is dangerously heating the planet and robbing them of a healthy environment. Legal experts say their trial is the first involving a constitutional climate case.

“There have been almost no trials on climate change,” says Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia Law School in New York. “This is the first that will get into the merits of climate change and what needs to be done, and how the state may have to change its policies.”

In their complaint, filed in 2020, the young activists seized on language in the Montana state constitution. It gives residents “the right to a clean and healthful environment.” It also stipulates that the state and individuals are responsible for maintaining and improving the environment “for present and future generations.”

They argue that Montana’s extensive support for fossil fuels like coal, oil, and gas is unconstitutional. The pollution resulting from fossil fuels is heating the planet and robbing them of a healthy environment. Legal experts say their trial is the first involving a constitutional climate case.

“There have been almost no trials on climate change,” says Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia Law School in New York. “This is the first that will get into the merits of climate change and what needs to be done, and how the state may have to change its policies.”

The origins of the case stretch back to 2011, when a nonprofit called Our Children’s Trust asked the Montana Supreme Court to rule that the state has a duty to address climate change. The court declined to weigh in, so the lawyers began building their case.

Our Children’s Trust has sued state governments on behalf of young people in all 50 states and is behind Juliana v. United States. The landmark climate lawsuit asks the federal government to prevent further harm from climate change, and is pending in district court in Oregon. But Held v. Montana is the first of these cases to head to trial.

“We’re really trying to bring the youth generation to the courts and do so through a human rights lens,” says Julia Olson, the attorney who founded Our Children’s Trust.

In 2020, Olson once again took aim at Montana, this time with a bigger legal team, a raft of experts, and 16 diverse plaintiffs, including the Busse boys, sons of a former firearms executive. Many of the plaintiffs expect to testify at trial.

The oldest, Rikki Held, was 18 when the lawsuit was filed. She grew up on a 7,000-acre ranch where increasingly unpredictable weather makes it difficult for her family to supply water to their property. Sariel Sandoval, then 17, grew up on the Flathead Indian Reservation. She recalled how the huckleberries she once picked early in the summer are now harder to find and how a lighter snowpack has lowered water levels in Flathead Lake where her tribe fishes.

“When you have this relationship to the land, it’s hard seeing the way climate change is affecting it, the harm that’s being done,” she says.

The origins of the case go back to 2011. A nonprofit called Our Children’s Trust asked the Montana Supreme Court to rule that the state has a duty to address climate change. The court declined to weigh in, so the lawyers began building their case.

Our Children’s Trust has sued state governments on behalf of young people in all 50 states. They are behind Juliana v. United States, a case pending in district court in Oregon. That lawsuit asks the federal government to prevent further harm from climate change. Held v. Montana is the first of these cases to head to trial.

“We’re really trying to bring the youth generation to the courts and do so through a human rights lens,” says Julia Olson, the attorney who founded Our Children’s Trust.

In 2020, Olson once again took aim at Montana. This time it was a bigger legal team and included a raft of experts. The case consists of 16 diverse plaintiffs, including the Busse boys, sons of a former firearms executive. Many of the plaintiffs expect to testify at trial.

The oldest, Rikki Held, was 18 when the lawsuit was filed. She grew up on a 7,000-acre ranch. The increasingly unpredictable weather makes it difficult for her family to supply water to their property. Sariel Sandoval, then 17, grew up on the Flathead Indian Reservation. She recalled how the huckleberries she once picked early in the summer are now harder to find. She also explained how a lighter snowpack has lowered water levels in Flathead Lake where her tribe fishes.

“When you have this relationship to the land, it’s hard seeing the way climate change is affecting it, the harm that’s being done,” she says.

In its response to the lawsuit, Montana disputed the consensus among the vast majority of scientists that the burning of fossil fuels is driving climate change and denied that the state was experiencing increasingly severe weather linked to rising temperatures. Montana is the nation’s fifth-largest coal-producing state and the 12th-largest oil-producing state.

“The United States must . . . have an all-of-the-above energy policy, like Montana does, to make our country energy independent and secure again,” says a spokeswoman for Governor Greg Gianforte, a Republican. His predecessor, a Democrat, also defended the state against the suit.

In its response to the lawsuit, Montana disputed that the burning of fossil fuels is driving climate change. It denied that the state was experiencing increasingly severe weather linked to rising temperatures. Montana is the nation’s fifth-largest coal-producing state and the 12th-largest oil-producing state.

“The United States must . . . have an all-of-the-above energy policy to make our country energy independent and secure again,” says a spokeswoman for Montana›s Governor Greg Gianforte, a Republican. His predecessor, a Democrat, also defended the state against the suit.

The state’s original constitution, drafted in 1889, was amended in 1972 to include the language guaranteeing a healthy environment now at the center of Held v. Montana. The new language was meant as a “declaration of independence” from the state’s long-powerful mining interests, says Michelle Bryan, a law professor at the University of Montana.

Whichever side loses is likely to appeal the case to the state supreme court. Even if the young Montanans win, they’re not expecting immediate changes. But they want the judge to acknowledge that fossil fuels are causing pollution and warming the planet, and to declare the state’s support for the industry unconstitutional. A victory for the plaintiffs could spur other climate cases. Pennsylvania and New York have similar constitutional guarantees to a healthy environment, and efforts are underway to try to add them to other state constitutions.

But for the Busse boys, it’s also about protecting their own backyard.

“A lot of this is just rooted in how many Montanans, including us, live life on an everyday basis,” says Lander, “and how ingrained the wildlife and the land and the nature is in who we are.”

The state’s original constitution, drafted in 1889, was amended in 1972 to include the language guaranteeing a healthy environment now at the center of Held v. Montana. The new language was meant as a “declaration of independence” from the state’s long-powerful mining interests, says Michelle Bryan, a law professor at the University of Montana.

Whichever side loses is likely to appeal the case to the state supreme court. Even if the young Montanans win, they’re not expecting immediate changes. They want the judge to acknowledge that fossil fuels are causing pollution and warming the planet. They also want the judge to declare the state’s support for the industry unconstitutional. A victory for the plaintiffs could create other climate cases. Pennsylvania and New York have similar constitutional guarantees to a healthy environment. There are efforts underway to try to add guarantees to other state constitutions.

But for the Busse boys, it’s also about protecting their own backyard.

“A lot of this is just rooted in how many Montanans, including us, live life on an everyday basis,” says Lander, “and how ingrained the wildlife and the land and the nature is in who we are.”