By Andy McCoy, Spring 2022 Environmental Clinic Student
February saw several positive developments for lawsuits designed to hold states and private companies responsible for their contributions to climate change.
In Montana, a state district court set a trial date – February 2023 – for Held et. al v. State of Montana. The trial will be the latest opportunity for a state court to decide whether that state’s constitution and the public trust doctrine require policymakers to change their approach to energy and climate change planning. The plaintiffs claim that Montana’s support for in-state fossil fuel resource development, role as a major thoroughfare for interstate and international fossil fuel shipments, and unwillingness to consider climate change impacts when approving new projects substantially contributes to climate change, and that climate change will negatively impact Montana’s natural resources.
Held is one of several climate suits brought by young plaintiffs and based on the public trust doctrine. The public trust doctrine is a common law idea that governments have an obligation to safeguard natural resources for the benefit of present and future generations. In some cases, such as Held, state constitutions may enshrine public trust doctrine concepts. The Montana constitution requires that “[t]he state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations” and that “the legislature shall provide adequate remedies for the protection of the environmental life support system from degradation and provide adequate remedies to prevent unreasonable depletion and degradation of natural resources.”
Meanwhile, in Hawaii, a state court said the city and county of Honolulu’s lawsuit against several fossil fuel companies could proceed. In contrast to Held, the city and county of Honolulu argued that fossil fuel companies have known for several decades about the dangers of climate change but did not disclose that information in order to continue selling greenhouse gas-producing products. The companies’ failure to warn worsened the extent and duration of climate change impacts, particularly for Honolulu, which will have to deal with rising sea levels and marine ecosystem disruptions.
City and County of Honolulu v. Sunoco LP, et. al. relies on the same type of legal argument used in lawsuits against Big Tobacco. Namely, that the defendants produced a product they knew had negative health effects and did not warn the public. Cities and states want to be compensated by fossil fuel companies to help cover the cost of adapting to climate change. For example, Honolulu will likely have to abandon some currently occupied areas due to sea level rise.
The Hawaiian state court ultimately decided the plaintiffs’ claims could be handled in state court, because they were tort claims, which are traditionally heard by state courts, and are questions of how much authority the state has under its police power to regulate for the well-being of its citizens. Nonetheless, the defendant fossil fuel companies are arguing in federal court that the case should be heard there instead.
Climate suits like Held and City and County of Honolulu are one potential way to speed up decarbonization of the US economy. Climate suits challenge policymakers’ indifference toward climate change and pose a major economic risk to fossil fuel companies. Successful challenges, while unlikely in any given case, can force governments to limit their greenhouse gas emissions and could require fossil fuel producers to pay out huge awards for harms to places impacted by climate change. The progression of these cases – and climate suits generally – is well worth watching.
The articles published on this site reflect the views of the individual authors only. They do not represent the views of the Environmental Clinic, The University of Texas School of Law, or The University of Texas at Austin.
