In a case that invoked a constitutional right to a healthful environment, a judge in Montana ruled Monday that the state cannot prohibit taking climate change into account as it weighs fossil fuel projects.
According to environmental lawyers, that ruling may likely reverberate over 2,000 miles away in New York, where voters passed a so-called green amendment in November 2021. The state constitutional amendment guarantees each person the “right to clean air and water, and a healthful environment” — language very similar to the provision in the Montana Constitution that underpins the recent ruling.
“This is going to give a powerful leg up and step forward for any climate-focused, greenhouse gas-focused legal actions that might be brought in in the state of New York,” said Maya van Rossum, founder of the group Green Amendment For the Generations and CEO of the Delaware Riverkeeper Network. “New York courts do not have to follow what Montana courts decide, but it should be persuasive.”
So far, seven lawsuits have been filed in New York invoking the green amendment, according to a Pace University tracker, including challenges to skyscrapers in Manhattan, an incinerator in Cohoes and a waste facility near Cayuga Lake.
The Montana case began with a lawsuit filed in March 2020 in which 16 young Montanans, ages 5 to 22, argued the government violated their right “to a clean and healthful environment,” as enshrined in the state constitution, by developing fossil fuel projects. Those projects, they alleged, exacerbated climate change and harmed their lives.
The burning of fossil fuels such as coal, oil and natural gas releases greenhouse gases that warm the planet, causing climate change — the effects of which include more extreme storms and altered ecosystems.
“For people that are interested in using the green amendment in New York, this is all positive and indicates that these amendments are meaningful, that they’re enforceable,” said Martha Davis, a professor at Northeastern University School of Law who focuses on constitutional law and human rights. “The result in Montana is going to give additional momentum to efforts in New York and will be a case that New Yorkers can cite to support a more aggressive enforcement of the green amendment.”
Amending Behavior
Perhaps the most significant takeaway of the Montana ruling was that a “healthful environment,” as specified in the constitutions of both Montana and New York, includes a safe climate, lawyers told THE CITY.
“The court made it very clear that climate — and a stable climate — resides within the guaranteed clean and healthy environment,” said Katrina Kuh, an environmental law professor at Pace University Haub School of Law.
The judge found the greenhouse gas emissions from Montana — a major gas and coal producer — are “nationally and globally significant” and “have been proven to be a substantial factor in causing climate impacts to Montana’s environment and harm and injury to the Youth Plaintiffs.”
The plaintiffs challenged a Montana law that barred consideration of greenhouse gas emissions when the state decides whether to issue permits for fossil fuel projects.
By not considering climate impacts in permit decisions, the state failed to protect natural resources and the right to a clean and healthful environment, the judge wrote in her decision.
Davis, of Northeastern, cautioned it wasn’t “crystal clear” that Montana had an obligation to consider climate change in approving fossil fuel projects — just that the state couldn’t prohibit consideration of climate change in those decisions.
New York has no such bar of greenhouse gas emission considerations in its laws governing permit reviews. In fact, the state Department of Environmental Conservation (DEC) has issued guidance for how to incorporate climate change considerations into its work, including preparing and reviewing environmental impact statements.
In 2021, the DEC denied applications for two proposed natural gas-fired power plants, including one in Queens, on the grounds they would not comply with the state’s climate law, which mandates cutting greenhouse gas emissions.
But DEC, which declined to comment due to pending litigation, is a defendant in some of the lawsuits filed that allege violations of New York’s green amendment.
Green’s Reach
Courts across New York are only beginning to see the green amendment invoked in cases, leaving plenty of room to shape its reach.
In New York, plaintiffs have alleged the violation of constitutional rights related to odors and emissions from a landfill in the Finger Lakes region; a permit issued to construct and run a waste transfer facility that could contaminate Cayuga Lake; and the operation of a waste incinerator in Cohoes. Plaintiffs in the most recent lawsuit, filed in January, allege the city of Buffalo violated the constitutional right to “clean air and water” by failing to provide fluoridated water.
A lawsuit filed in October to stop the construction of three towers in Manhattan’s Two Bridges neighborhood cited the constitutional right, as THE CITY previously reported, but was dismissed.
So far, van Rossum of the Green Amendments movement, who has been tracking the cases nationally, said she thinks the courts are sending a straightforward message.
“The courts are getting it right in the state of New York,” said van Rossum. “They’re being very, very clear that it is an absolute obligation for all government officials in the state to comply with the constitution.”
But questions remain.
It’s still unclear, for instance, whether the state must take affirmative acts to ensure a healthy environment, or avoid acting in a way that would harm the environment, Davis said. As she put it: “Does the state have to go out and clean the air? Or does the state just have to not get in the way of clean air?”
And there’s the question of whether New York’s green amendment can provide a guarantee that goes beyond the laws that already exist. That’s where the ruling in Montana could be useful to New York, Kuh said.
“To my mind, reading this decision, this seems to clearly say yes, courts must examine legislation adopted to see if it comports with environmental constitutional requirements,” she said.