Held v Montana: the beginning of a climate change lawsuit trend in US state level courts or a one-shot wonder?

In mid-August 2023, an American trial court rendered a decision that was as amazing as it was important. The trial court held in favour of youth plaintiffs in a climate change case.

Never had climate plaintiffs in an American court – federal or state – prevailed in a case aimed at reducing carbon emissions. But it happened on 14 August in Helena, Montana, the state’s capital city, which is better known for gold mining than being the epicentre of American climate change litigation. In a decision described as a ‘pathbreaking win for climate plaintiffs’,¹ Montana state district court judge Kathy Seeley became the first American jurist to preside over a climate change trial and to then deliver a landmark first-of-its-kind decision about climate change.² Michael Gerrard, director of Columbia Law School’s Sabin Center for Climate Change Law, heralded the news and said, ‘I think this is the strongest decision on climate change ever issued by any court’.³ It seems likely that Gerrard was speaking only of cases in the US because there have now been many cases around the world in which climate plaintiffs have been successful,⁴ but in the context of the US court systems, the result was very noteworthy. An article in Bloomberg News suggested that the decision ‘will likely reverberate across the legal landscape’.⁵

The decision, which will be explored more fully below, has resulted in a flurry of opinions about the future of climate change litigation in the United States, once a ‘bastion’ for where climate change cases went to die. However, might that be changing? In this editorial, I will explain the background of the case, the decision, reactions to the decision, and the road ahead.

1. Background

The Montana state constitution provides that the inalienable rights Montanans have include ‘the right to a clean and healthful environment’.⁶ Moreover, the constitution also provides that ‘The state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations’.⁷

It was on this constitutional foundation that in 2020 a lawsuit was filed by 16 youth plaintiffs, who were between 2 and 18 years old when the case was initiated, with the assistance of the non-profit law firm Our Children’s Trust (OCT), which advocates on behalf of children in climate change actions.⁸ Andrea Rogers, a senior attorney for OCT, has observed that ‘Young people are among the most politically powerless in [the US]. Most can’t vote and they don’t have the money to lobby their legislatures’.⁹

What made the Held case different, according to Rogers, was that rather than focusing on specific statutes or regulations, the Held plaintiffs ‘argued that it was really their fundamental constitutional rights at stake because of climate change, including their rights to life, liberty, and equality under the law’.¹⁰ On the other hand, when the case was filed a spokesperson for the Montana Attorney General’s office dismissed it as a ‘show trial’.¹¹

During the two-week June 2023 trial, lawyers for the plaintiffs, who by that time ranged from 5 to 22 in age, offered evidence that hotter temperatures, decreased snowpacks, and increased wildfires and drought were directly related to increased carbon dioxide emissions.¹² In contrast, the state of Montana asserted that even if it ‘completely stopped producing carbon dioxide, it would have no effect on a global scale because states and countries around the world contribute to the amount of carbon dioxide in the atmosphere’.¹³ Defence added that ‘a remedy has to offer relief … or it’s not a remedy at all’.¹⁴

2. Decision

The case was tried by the judge during a two-week trial in June. In summary, the court ruled that state policy used in reviewing requests for fossil fuel development permits which prohibits agencies from evaluating the impacts of greenhouse gas (GHG) emissions is unconstitutional.

Because of the court’s lengthy and expansive ruling and order, it is worth pointing out some of the key aspects of the decision.¹⁵ Among the key findings of fact were:

• ‘Science is unequivocal that dangerous impacts to the climate are occurring due to human activities, primarily from the extraction and burning of fossil fuels’. ¶70, p 19

• ‘The cumulative effect of GHG emissions causes the impacts to the climate being experienced today … Human activity and the burning of fossil fuels have accelerated the accumulation of CO₂ to the point that 42% of the total accumulation of CO₂ emissions has happened in the last 30 years’. ¶72, p 19

• ‘It has long been understood that certain GHGs, including CO₂ and methane (CH₄), trap heat in the atmosphere, causing the Earth to warm’. ¶73, p 20

• ‘According to the Intergovernmental Panel on Climate Change (IPCC), “Climate change is a threat to human well-being and planetary health (very high confidence)”’. ¶98, p 25

• ‘Children are uniquely vulnerable to the consequences of climate change, which harms their physical and psychological health and safety’. ¶94, p 28

• ‘Anthropogenic climate change is impacting, degrading, and depleting Montana’s environment and natural resources, including through increasing temperatures, changing precipitation patterns, increasing droughts and aridification, increasing extreme weather events, increasing severity and intensity of wildfires, and increasing glacial melt and loss’. ¶140, p 35

• ‘Climate change is already harming plaintiffs’. ¶¶194–208, pp 46–64

• ‘The defendants’ actions have contributed to climate change, thus harming the plaintiffs, in the form of continuing to approve permits and licenses for new fossil fuel activities’. ¶232, p 69

• ‘Montana’s annual, historical, and cumulative GHG emissions are increased by Defendants’ actions to permit and approve fossil fuel activities with no environmental review of their impact on GHG levels in the atmosphere and climate change’. ¶266, p 79

• ‘It is technically and economically feasible for Montana to replace 80% of existing fossil fuel energy by 2030 and 100% by no later than 2050, but [possibly] as early as 2035’. ¶272, p 81

• ‘Delegates to the 1972 Constitutional Convention [where a clean and healthful environment were enshrined] intended to adopt the strongest preventative and anticipatory constitutional environmental provisions possible to protect Montana’s air, water, and lands for present and future generations’. ¶289, p 86

Among the key conclusions of law were the following:

• ‘Plaintiffs have proven standing’ by establishing injury (‘plaintiffs’ mental health injuries stemmed from the effects of climate change on Montana’s environment, feelings like loss, despair, and anxiety, are cognizable injuries’ ¶5, p 87), causation by proving ‘a fairly traceable connection between the State’s disregard of GHG emissions and climate change’ ¶13, p 87, and redressability’, p 88.

• ‘Montanans’ right to a clean and healthful environment is complemented by an affirmative duty upon their government to take active steps to realize this right’. ¶45, p 96

In perhaps the most important conclusion of law, Judge Seeley held that ‘Based on the plain language of the implicated constitutional provisions, the intent of the Framers, and Montana Supreme Court precedent, climate is included in the “clean and healthful environment” and “environmental life support system”’.¹⁶

Following the findings of fact and law, the court entered its order that included invalidating statutes that prohibited analysis and remedies based on GHG emissions and climate impacts.¹⁷ As a result of the decision, Montana state agencies ‘will have to figure out the best way to consider greenhouse gas emissions, which is something other states, and the federal government, are grappling with’, Michelle Bryan, University of Montana law professor, said after the decision was handed down.¹⁸ ‘A lot of work is left to do in terms of figuring out how to implement greenhouse gas reviews into the agency processes’, Bryan added.¹⁹

3. Reactions

Judge Seeley’s decision engendered no small number of reactions, ranging from positive to extremely negative.

3.1. Positive

There were many positive comments, which is not surprising given that the Montana court had done what no other American court has done. Michael Burger of the Sabin Center for Climate Change Litigation said,

This was climate science on trial, and what the court has found as a matter of fact is that the science is right. Emissions contribute to climate change, climate harms are real, people can experience climate harms individually, and every ton of greenhouse gas emissions matters. There are important factual findings, and other courts in the US and around the world will look to this decision.²⁰

Delta Merner, Lead Scientist at the Science Hub for Climate Litigation at the Union of Concerned Scientists said, ‘I’m greatly encouraged to see a judge uphold people’s constitutional rights to a healthy environment’, adding, ‘The case in Montana is a clear sign that seeking climate justice through the courts is a viable and powerful strategy’.²¹

A representative of the Sunrise Movement, a youth-led climate advocacy organisation, Varshini Prakash, said the Montana plaintiffs, among others, had ‘proven that Gen Z is a powerful force in the fight against the climate crisis, and we won’t be stopped. Mark my words: from courthouses to statehouses to the ballot box in 2024, our generation is taking over’.²²

Noah Sachs, Director of the University of Richmond School of Law Merhige Center for Environmental Studies, said the Held decision was important because ‘we have here a definitive ruling from a judge accepting the core arguments of climate scientists – and that is something that has never happened before’.²³ Despite media pundits who have asserted that climate change cases cannot be handled in courts, Sachs said, ‘What this case shows is that, no, this is an issue that can be managed in courts’.²⁴

3.2. Negative

The state attorney general’s office was quick to criticise the holding, with spokesperson Emily Flower going so far as to refer to the decision as ‘absurd’ and the trial as a ‘taxpayer-funded publicity stunt’,²⁵ characterisations that seem somewhat shocking. And Flower did not stop there. She also claimed that the plaintiffs ‘found an ideological judge who bent over backward to allow the case to move forward and earn herself a spot in their next documentary’.²⁶

The attorney general’s displeasure with the decision was seconded by Alan Olson, Montana Petroleum Association Executive Director, who described the ruling as providing job security for lawyers, adding that transitioning quickly to renewable energy would cause electricity rates to rise.²⁷

James Huffman, Dean Emeritus of the Lewis & Clark Law School in Portland, Oregon, dismissed the ruling as providing ‘nothing beyond emotional support for the many cases seeking to establish a public trust right, human right or a federal constitutional right’ associated with a healthy environment.²⁸

Meanwhile, the Wall Street Journal editorial page could barely contain its disdain, referring to the decision as a ‘radical new theory on climate change’.²⁹ According to the editorial,

The plaintiff claims are so dubious that they shouldn’t survive on appeal … But the climate left will take this strategy on the road and try to persuade ideologically sympathetic judges … to do what legislatures won’t … These young people ought to sue the adults who have misled them about climate apocalypse.³⁰

4. Looking ahead

4.1. The appeal

On 28 September, the state of Montana filed its notice of appeal.³¹ ‘We look forward to the argument before the Montana Supreme Court', Montana Attorney General Austin Knudsen's spokesperson said.³² On the other hand, Melissa Hornbein, an attorney for the Western Environmental Law Center that served as co-counsel for the plaintiffs, said ‘I welcome the opportunity to have what we believe is a very strong order by Judge Seeley affirmed by the Supreme Court'.³³

Obviously, trying to predict what the supreme court might do on appeal is a fool's errand, that is to say drawing a firm conclusion about the result on appeal. However, in the wake of the decision Jim Nelson, who served on the Montana Supreme Court for nearly 20 years before retiring in 2012, said the case is a ‘slam dunk home run' and that it will be difficult for the court to overturn the decision.³⁴ ‘I think this is one of the most powerful decisions I've ever read on the environment in Montana', Nelson said.³⁵ The most important aspect of the decision, Nelson said, was the court's conclusion that climate change, while not mentioned specifically in the constitution, is included in the constitutional requirement for a clean and healthful environment. ‘That's important. One could think it's common sense to make that connection, but the court has never said that', Nelson said.³⁶

Despite the appeal, however, the trial court's decision is already having an impact in the state. In early October, the Montana Department of Environmental Quality announced plans to hold hearings about revising the Montana Environmental Protection Act in the aftermath of the Held decision.³⁷ ‘We want to start a thoughtful dialogue about greenhouse gas emissions and other topics, and we are seeking input that is balanced and driven by sound science', DEQ Director Christopher Dorrington said.³⁸

4.2. The ‘Hawaii’ case

The next major state-related case set for trial is scheduled for mid-2024 in the Environmental Court of the 1^st Circuit of Hawaii. In Navahine F v Hawai'I Department of Transportation, set for trial 24 June - 12 July 2024,³⁹ the focus will be on transport sector-related greenhouse gas emissions.⁴⁰

In another youth-led lawsuit, 14 Hawaii plaintiffs have asserted that the state department of transportation ‘operates a system that emits high levels of greenhouse gases, in violation of the young people's constitutional rights. The [plaintiffs] argue that although the state is recognised as a climate leader, the transportation agency since 2008 has missed every mark on reducing emissions'.⁴¹

In January 2023, in a pretrial trial hearing, the state argued that the case should be dismissed because it raises issues best handled not by judges but by legislators. However, in April 2023 Hawaii First Circuit Judge Jeffrey Crabtree rejected that argument and pointed out that it ‘fails to recognize' that the plaintiffs' claims are based on rights enumerated in the state constitution.⁴² A key precedent Crabtree cited was a March 2023 unanimous decision by the state supreme court In the Matter of the Application of Hawai'i Electric Light Company that upheld rejection of a power purchase agreement that would have escalated greenhouse gas emissions.⁴³ Hawaii Supreme Court Chief Justice Michael Wilson, in a concurring opinion, wrote, ‘The State of Hawai'i is in a declared climate emergency' and that ‘We are facing a sui generis climate emergency. The lives of our children and future generations are at stake. With the destruction of our life-sustaining biosphere underway, the State of Hawai'i is constitutionally mandated to urgently reduce its greenhouse gas emissions…'.⁴⁴ Justice Wilson said, ‘I write separately to emphasize that the right to a life-sustaining climate system is…included in the due process right to ‘life, liberty, [and] property' enumerated in Article I, section 5 and the public trust doctrine embodied in Article XI, section 1's mandate that the state of Hawai'i “conserve and protect Hawai'i's…natural resources” “[f]or the benefit of present and future generations[.]”'.⁴⁵

4.3. Impact on Juliana v United States

It seems unlikely that the decision in Held will have any impact on the longest-running youth-led US climate case, Juliana v United States.⁴⁶ First filed in August 2015, the federal action has been mired in procedural challenges. Among other things, the plaintiffs assert that the federal government's policy on fossil fuels deprives them of their federal constitutional rights of life, liberty, and property without due process of law.⁴⁷ In the early stages of the case, Oregon Federal District Court Judge Ann Aiken ruled that a fundamental right enshrined in the US Constitution was the right to ‘a climate system capable of sustaining human life' but subsequently in 2021 the US 9th Circuit Court of Appeals declined reconsideration of its earlier decision to dismiss the case because the matter was a legislative, and not a judicial, one.⁴⁸

Notwithstanding all the procedural wrangling in the first eight years of the case, Judge Aiken in June 2023 granted the plaintiffs' motion to file a second amended complaint.⁴⁹ After the Held decision, the Juliana plaintiffs in late August 2023 filed a notice of supplemental authority citing Held. In early September 2023, the US government responded to the plaintiffs' assertion and argued, ‘The decision is not germane to the merits because Held involved only state law, and thus did not interpret any of the federal law underlying Plaintiffs' claims in this case. The claims in Held relied on provisions in the Montana State Constitution that explicitly confer a fundamental right to a “clean and healthful environment” and “environmental life support system.”…That state constitution is not relevant here, and no analogous fundamental right exists under the U.S. Constitution'.⁵⁰

If nothing else in US politics reflects bipartisanship, the Obama, Trump, and Biden administrations' steadfast opposition to allowing Juliana to go to trial should elicit favorable a favourable reaction. At the rate Juliana is proceeding it may become the modern-day version of Bleak House, the Charles Dickens' novel that involved an endless inheritance case.

4.4. Constitutional amendments and proposed amendments in other states

Currently only a handful of states, including Montana, have constitutional amendments establishing a right to a clean environment.⁵¹ New York⁵² and Pennsylvania⁵³ are the other two states.⁵⁴

However, there is a growing effort to enshrine such a right in other state constitutions despite the difficulty in doing so. Generally speaking, proponents of such efforts need support from a supermajority of legislators and if that is achieved the proposal goes to a state-wide vote.⁵⁵

Notwithstanding the challenge of enacting such amendments, efforts are now underway in several states to do just that.⁵⁶ Antoinette Sedillo Lopez, a New Mexico Democratic State Senator, has said she intends to introduce a green amendment proposal in the 2024 New Mexico legislative session.⁵⁷

In the 2023 Arizona legislature session Democratic State Senator Juan Mendez proposed adding a green amendment to the state's constitution.⁵⁸ The measure was ignored by the Republican leadership, which controlled the state senate. `When [Republicans in the legislature] hear the news that Montana is going to be guaranteeing future generations clean water, healthy air and land, I'm pretty sure…they're going to make sure that this never happens in Arizona', Mendez said.⁵⁹

4.5. UN Committee on children’s rights and the environment

By coincidence, about two weeks after the Held decision, the UN Committee on the Rights of the Child, issued a report⁶⁰ emphasizing ‘the urgent need to address the adverse effects of environmental degradation, with a special focus on climate change…The Committee [explained] how children's rights under the Convention on the Rights of the Child apply to environmental protection, and [confirmed] that children have a right to a clean, healthy and sustainable environment’.⁶¹

While the report's conclusions do not legally bind the signatories to the underlying Convention on the Rights of the Child,⁶² it is ‘significant because it is based on a widely recognized international treaty and explicitly recognizes children's rights to go to court for force their government to slow down the climate crisis'.⁶³ The report said ‘States should provide for collective complaints, such as class action suits and public interest litigation and extend the limitation periods regarding violations of children's rights due to environmental harm’.⁶⁴

Despite the importance of the report, it is unlikely to have any impact in the US, which is the only country in the world that has not signed the underlying treaty.⁶⁵

5. Concluding thoughts

Legal actions based on ‘a safe climate as an affirmative human or constitutional right are ubiquitous in courts worldwide',⁶⁶ but the situation has been different in the US where courts customarily ‘defer to legislatures on climate and energy policy matters'.⁶⁷

Perhaps the Held decision will mark a turning point in US courts' willingness to address climate change, but without a constitutional right to do so reaching that turning point seems unlikely. Yes, there will be decisions in states like Montana (if the trial court decision is upheld on appeal) that have an embedded right to a clean environment. But there are only a tiny number of states that have such a constitutional provision.

Thinking about all of this reminds me of a speech given more than a decade ago by an Australian judge to an ‘obscure' conference of lawyers.⁶⁸ In the speech, Brian Preston, Chief Judge of the New South Wales Land and Environment Court then and now, suggested that lawsuits could play an important role in addressing climate change. Preston, who has been described as ‘one of the intellectual pioneers of a global movement that uses courts to do what activists feel governments won't' in terms of addressing climate change,'⁶⁹ said, ‘While courts are bound by domestic or international norms in their activity, and cannot bring about dramatic change, climate change litigation has proved to be a vehicle through which matters that are important to communities are being brought to the attention of governments and, hence, act as a catalyst for executive action'. Preston went on to observe, ‘Another important effect of litigation is that such actions raise the defendants' and the public's awareness of the implications of climate change and, sometimes, solutions are reached at a much faster pace by commencing proceedings'.⁷⁰

In the context of the US, my advice is simple: stay tuned for the results in the mid-2024 Hawaii case.

Notes

1 Amy Beth Hanson and Matthew Brown, ‘Judge Sides With Young Activists in First-of-Its-Kind Trial’ AP News (14 August 2023)

2 Held v Montana, 14 August 2023, Montana First Judicial District Court, Lewis and Clark County, Cause No CDV-2020-307, Findings of Fact, Conclusions of Law, and Order <https://climatecasechart.com/wp-content/uploads/case-documents/2023/20230814_docket-CDV-2020-307_order.pdf>

3 Jennifer Hijazi, ‘Montana Youth Win Historic Case on Harm from Climate Change (3)’ Bloomberg Law News (14 August 2023)

4 eg State of Netherlands v Urgenda Foundation, ECIL:NL:HR:2019:2007, 20 December 2019 <https://climatecasechart.com/wp-content/uploads/non-us-case-documents/2020/20200113_2015-HAZA-C0900456689_judgment.pdf>; Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7, 8 February 2019 <www.caselaw.nsw.gov.au/decision/5c59012ce4b02a5a800be47f>

5 Hijazi (n 3)

6 The Constitution of the State of Montana, art II, pt II, sec 3 <https://leg.mt.gov/bills/mca/title_0000/article_0020/part_0010/section_0030/0000-0020-0010-0030.html>

7 The Constitution of the State of Montana, art IX, pt IX, sec 1 <https://leg.mt.gov/bills/mca/title_0000/article_0090/part_0010/section_0010/0000-0090-0010-0010.html>

8 Meher Bhatia, ‘Held v Montana Is a Historic Victory for Climate Action – But Also Human Rights’, The Nation (16 August 2023)

9 Ibid

10 Ibid

11 The Economist, ‘Montana, Climate-Change Pioneer’ (8 June 2023)

12 Hanson and Brown (n 1)

13 Ibid

14 Ibid

15 Held v Montana (n 2)

16 Held v Montana (n 2) ¶97–98, pp 97–98

17 Ibid ¶6, p 102

18 Micah Drew and Amanda Eggert, ‘This Changes Everything: Experts Respond to Held v. Montana Climate Ruling’ Montana Free Press (18 August 2023)

19 Ibid

20 David Gelles and Mike Baker, ‘Judge Rules in Favor of Montana Youths in a Landmark Climate Case’ The New York Times (14 August 2023)

21 Lisa Nurnberger, ‘Montana Judge Rules in Favor of Youth Plaintiffs in Landmark Climate Case’ Union of Concerned Scientists (14 August 2023) <www.ucsusa.org/about/news/montana-youth-win-climate-lawsuit>

22 ‘Sunrise on MT Climate Ruling: Our Generation Is Taking Over’ Sunrise Movement (14 August 2023) <https://us7.campaign-archive.com/?u=03c6bd2c940b3a70bc44f0b69&id=306785f052>

23 Gabrielle Gurley, ‘Climate Jurisprudence Gets a New Blueprint’ The American Prospect (17 August 2023)

24 Ibid

25 Hanson and Brown (n 1)

26 Hijazi (n 3)

27 Drew and Eggert (n 18)

28 Hanson and Brown (n 1)

29 Review & Outlook Leader, ‘The Children’s Climate Crusade’ The Wall Street Journal (16 August 2023)

30 Ibid

31 See Held v. Montana, Notice of Appeal to the Supreme Court of the State of Montana, case number DA 23-0575, 28 September 2023 and Zack Budryk, ‘Montana appeals landmark climate change ruling in case brought by young advocates’, The Hill, 2 October 2023, https://thehill.com/policy/energy-environment/4234450-montana-appeals-landmark-climate-change-ruling-in-case-brought-by-young-advocates/

32 Zack Budryk, ‘Montana appeals landmark climate change ruling in case brought by young advocates’, The Hill, 2 October 2023, https://thehill.com/policy/energy-environment/4234450-montana-appeals-landmark-climate-change-ruling-in-case-brought-by-young-advocates/

33 Micah Drew, ‘State of Montana Appeals Landmark Climate Change Decision in Youth-led Case’, Flathead Beacon, 2 October 2023, https://flatheadbeacon.com/2023/10/02/state-of-montana-appeals-landmark-climate-change-decision-in-youth-led-case/

34 Drew (n 18)

35 Ibid

36 Ibid

37 Drew (n 33)

38 ‘DEQ Seeking Input on Environmental Impact Analysis Process Under the Montana Environmental Policy Act’, DEQ Montana, 27 September 2023, https://deq.mt.gov/News/pressrelease-folder/news-article112

39 Lesley Clark, ‘Youth in Hawaii get court date for 2^nd U.S. climate trial’, ClimateWire, 4 August 2023

40 Navahine F v Hawai'I Department of Transportation, 1CCV-22-0000631

41 Lesley Clark, ‘Judge greenlights Hawaii climate trial’, ClimateWire, 10 April 2023

42 Ibid

43 Ibid

44 Concurring opinion, Chief Justice Michael Wilson, In the Matter of the Application of Hawai'i Electric Light Company Inc For Approval of a Power Purchase Agreement for Renewable Dispatchable Firm Energy and Capacity, 13 March 2023, https://static1.squarespace.com/static/571d109b04426270152febe0/t/6410ef74476f006bb85f4aa0/1678831476454/SCOT-22-418+In+re+HELCO+Filed+Concurrence.pdf

45 Ibid

46 Juliana v United States, 6:15-cv-01517, https://climatecasechart.com/case/juliana-v-united-states/

47 Juliana v United States, Case No 6:15-cv-01517-AA, 15 October 2018, https://casetext.com/case/juliana-v-united-states-4

48 Ibid

49 US District Judge Ann Aiken, ‘Kelsey Cascadia Rose Juliana et al v United States of America et al, Civ. No. 6:15-cv-01517-AA, opinion and order, 1 June 2023, https://static1.squarespace.com/static/571d109b04426270152febe0/t/6478e362509ac610c4e9890c/1685644132156/Doc+540+Opinion+and+Order+Granting+Second+Amended+Complaint.pdf

50 Kelsey Cascadia Rose Juliana et al v United States of America et al, Civ. No. 6:15-cv-01517-AA, Defendants' Response to Plaintiffs' August 21, 2023, Notice of Supplemental Authority (ECF No. 559) and Lesley Clark, ‘DOJ: Montana climate ruling doesn't help Juliana lawsuit’, ClimateWire, 13 September 2023

51 For a deeper understanding of this right see Brian P Preston, ‘The right to a clean, healthy and sustainable environment: how to make it operational and effective’, will be published in 42 Journal of Energy & Natural Resources Law — (2024), https://doi.org/10.1080/02646811.2023.2165310

52 New York State Constitution, Article I section 19 [Environmental rights]; it is worth noting that the amendment was approved by 70 percent of the state's voters in a November 2021 election, ‘New York's Environmental Right Repository' Pace University of New York Elisabeth Haub School of Law, https://nygreen.pace.edu/; see also Nicholas A Robinson, ‘The Dawn of Environmental Human Rights in New York’, 95 New York State Bar Association Journal 41 (2023), https://nysba.org/the-dawn-of-environmental-human-rights-in-new-york/

53 Constitution of Pennsylvania, Article I, sec 27; see also https://blogs.law.widener.edu/envirolawcenter/files/2010/03/PA_Citizens_Guide_to_Art_I_Sect_27.pdf

54 National Caucus of Environmental Legislators, https://www.ncelenviro.org/articles/green-amendments-in-2023-states-continue-efforts-to-make-a-healthy-environment-a-legal-right/

55 Christine Mui and Lesley Clark, ‘Montana climate ruling could doom green amendments in other states’, ClimateWire, 12 September 2023

56 ‘Green Amendment', National Caucus of Environmental Legislators’, https://www.ncelenviro.org/issue/green-amendment/

57 Mui and Clark (n 55)

58 Joan Meiners, ‘After historic climate ruling, Arizonans renew push to guarantee a clean environment’, The Arizona Republic, 6 September 2023, https://www.azcentral.com/story/news/local/arizona-environment/2023/09/06/climate-change-arizona-youth-clean-healthful-environment/70765342007/

59 Ibid

60 UN Committee on the Rights of the Child, ‘General comment No. 26 (2023) on children's rights and the environment with a special focus on climate change’ CRC/C/GC/26, 22 August 2023, https://www.ohchr.org/en/documents/general-comments-and-recommendations/general-comment-no-26-2023-childrens-rights-and

61 Ibid

62 UN General Assembly, ‘Convention on the Rights of the Child’, 20 November 1989, https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-rights-child

63 Somini Sengupta, ‘Children Have a Right to Sue Nations Over Climate, U.N. Panel Says’, The New York Times, 28 August 2023

64 See https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CRC%2FC%2FGC%2F26&Lang=en ¶ 85

65 Sengupta (n 63)

66 Hijazi (n 3)

67 Tasmin Walker, ‘Environment’, Deutsche Welle, English, 14 August 2023

68 Aaron Patrick, ‘Brian Preston: The activist judge shaking the climate change world’, Australian Financial Review, 15 February 2019

69 Ibid

70 Ibid