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Challenging the State to Protect the Right to a Future Healthy Environment

Grace Messimer

Photo via Creative Commons


Climate change litigation has been increasingly used in different countries to fight the climate crisis through various judicial systems. As of December 2022, there have been over 2,000 climate-related cases in international courts, federal courts, and more local courthouses, with litigation taking place in 65 different jurisdictions.[1] Climate change litigation includes “cases that raise material issues of law or fact relating to climate change mitigation, adaptation or the science of climate change.”[2]


One way litigants advance climate litigation is by suing states on the basis of intergenerational equity, which asserts a present right to a clean environment and demands protection of the environment for future generations owed the same. These cases are brought by children or on their behalf. Two examples are Future Generations v. Ministry of the Environment and Others in Colombia and Held v. Montana in the United States at the state level. These cases are models for how environmentalists can use the law to attempt to mitigate and prevent the ongoing harm against the environment and communities across the globe.


I.         Future Generations v. Ministry of the Environment and Others


In Future Generations v. Ministry of the Environment and Others, 25 plaintiffs brought a petition against the Colombian government for its failure to adhere to the Paris Agreement.[3]  This case is an example of how both domestic and international law can serve to bolster a community’s ability to demand a healthy environment from their government. It is also a landmark case substantively, as it recognized the Amazon rainforest itself as an entity with legal rights.[4] In this way, parties can assert protection for an ecosystem that is not based solely on its uses for humans.[5]


Plaintiffs asserted that deforestation and overall environmental degradation was a deprivation of individual rights to life, health, water, and food under Colombian domestic law. [6] The plaintiffs were all between the ages of 7 and 25.[7] The Colombian Supreme Court, reversing a lower court judgment, acknowledged that there is an “interconnectedness between environmental integrity and human rights” and that, in addition, the Colombian Amazon was declared a rights holder entitled to “protection, conservation, maintenance, and restoration.”[8]


This lawsuit also provides a model for how to sue states and hold them accountable for their obligations under the Paris Agreement. Under the agreement, state parties are expected to submit a national climate plan every five years. In 2014, the Colombian government committed to a net-zero deforestation goal. By 2015, deforestation rates increased 44%.[9] The plaintiffs were able to sue for enforcement of this national climate plan when it was not being complied with, in essence enforcing the international obligation upon their own state.


II.         Held v. Montana


Held v. Montana is the first lawsuit of its kind to succeed at the state level in the United States. Sixteen youth plaintiffs sued the state of Montana, the governor, and several agencies in state court for violations of a state constitutional guarantee to a healthy environment.[10]  Montana, along with five other states in the United States, guarantee that citizens of the state have a right to “a clean and healthful environment.”[11] The plaintiffs challenged an energy statute that prohibited state agencies from considering emissions or climate change in environmental reviews.[12] The court in Held “struck down a Montana provision that forbade state actors from considering ‘the impacts of greenhouse gas (GHG) emissions or climate change’ in analyzing proposed policy.”[13]


The opinion in Held also directly linked climate change to human health,[14] linking the idea of protecting the environment to the notion of protecting vulnerable communities (including children). This is essential to furthering climate justice through the judicial system, as claims must be made based on an assertion of the rights people have under the law.[15] The success in this case shows a possibility that state action can challenged on the basis of citizens’ rights to a healthy environment guaranteed in several state constitutions.


III.         Comparison of Cases


These cases demonstrate two different bases for challenging governments that fail to protect the environment for the sake of their citizens. Future Generations forced the federal government in Colombia to adhere to the Paris Agreement, tasking the state to form and implement action plans to address deforestation and prevent future environmental degradation.[16] While the U.S. is also a member of the Paris Agreement,[17] the plaintiffs in Held sued their state using the state constitution instead of the international environmental agreement. Plaintiffs in both cases succeeded, demonstrating how climate change advocacy can be pursued through various litigation strategies that draw upon different sources of law. While both cases find support in different sources of law, they both still focus on the right to a healthy environment. This emphasizes the future importance of framing climate change advocacy as the right for people to have their governments protect the world in which they live.


IV.         Conclusion


As the climate crisis continues to accelerate, examining environmental litigation can inspire future action on climate change and encourage creative thinking about the way the legal system can be used to reform systems that are polluting the planet. The success of these cases shows that there is space to legally enforce the future right to a healthy environment. As cases continue to be brought using domestic and international law, they can continue to enforce this right and regulate environmental degradation in the face of the climate crisis.


Grace Messimer is a Staff Editor at CICLR. 


[1] U.N. Env't Programme, Global Climate Litigation Report: 2023 Status Review, at xiv (2023).

[2] Id. at 3.

[5] Id.

[6] Id.

[7] Unofficial Translation of Excerpts from Supreme Court Decision, Sabin Ctr. for Climate Change L. (April 5, 2018) (https://climatecasechart.com/wp-content/uploads/non-us-case-documents/2018/20180405_11001-22-03-000-2018-00319-00_decision.pdf) [https://perma.cc/JVL3-9HGE] (hereinafter “Unofficial Translation”).

[8] Future Generations, supra note 3.

[10] Held v. Montana, No. CDV-2020-302, at 1 (1st Dist. Ct. Mont., Aug. 14, 2023).

[11] Id.

[12] Held v. Montana, supra note 8, at 2.

[14] Grabianski, supra note 13.

[15] Future Generations, supra note 3 (discussing the use of domestic law to bring a claim, and that using established law helps to bring a plaintiffs’ claim).

[16] Future Generations, supra note 3.

[17] Anthony J. Blinken, The United States Officially Rejoins the Paris Agreement, U.S. Dept. of St. Press Releases (Feb. 19, 2021).

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