Loyola University Chicago School of Law, JD 2025
From blizzards striking California to wildfires ravaging Hawai’i and extreme heatwaves scorching Illinois, our world is witnessing a cascade of unexpected and alarming events. But, these are not merely isolated incidents; they are the very manifestations that climate change experts have long warned us about. While global awareness of the need for action grows, the United States continues to lag. Notwithstanding the recent unveiling of the American Climate Corps by the Biden Administration, environmental policies across the country face resistance from courts and legislators, leading to the emergence of the ‘Green Scare’ movement. In this context, an unexpected trend has materialized—the younger generation is fighting back.
The right to a healthy environment
According to Montana’s state constitution, its citizens are entitled to a “clean and healthful environment” for the benefit of “present and future generations.” While some may view this as mere puffery, a group of kids understood it as an inalienable, inviolable right. Consequently, when legislators passed provisions of Montana’s State Energy Policy Act which prohibited state actors from considering the deleterious environmental impacts of certain fossil fuels in assessments conducted during the implementation of a fossil fuel-based energy system, they quickly found themselves in hot water. In Held v. Montana, sixteen youths filed suit against the State and its governor, among others, alleging that the fossil fuel-based energy system violated their constitutional right to a healthy environment. A contentious battle ensued, but ultimately, the young plaintiffs triumphed.
In its analysis, the district court focused primarily on the extensive scientific data put forth by the plaintiffs. The court’s order emphasized the discernible consequences of climate change, including “hardship to every sector” of the state’s economy, increased annual temperatures, and the decline of available water, among several other grim results. The plaintiffs recognized the limitations of the legal system themselves and, to avoid any challenges to their standing, offered evidence of how the fossil fuel provision directly impacted them. Their strategy was successful as the district court ruled in their favor, noting that the state’s fossil fuel consumption in 2019 resulted in “about 32 million tons of CO2 being released into the Atmosphere.”
While similar suits in Florida, Virginia, and Washington were not so successful, young people have not been dismayed. New challenges have cropped up in New Mexico and Hawai’i and the long-delayed Juliana v. United States has been revived once more. The latter suit involves twenty-one young plaintiffs arguing that the U.S. government has prioritized a fossil fuel-oriented economy to the detriment of the climate and the environment. Originally filed in 2015, the case remained dormant until earlier this year when a federal district court judge permitted the plaintiffs to amend their complaint and progress to trial. Going further, a group of six young people from Portugal filed suit against thirty-two countries, including all member states of the European Union, in the European Court of Human Rights in an effort to combat climate change. Indeed, such efforts have prompted the United Nations to publish guidance on the rights of children to a healthy environment.
Curtailing environmental safeguards
Sadly, despite widespread knowledge of the dire consequences of climate change, the Environmental Protection Agency (EPA) has been forced to make significant rollbacks in its regulations. In particular, the agency was made to redefine its “Waters of the United States” rule, resulting in the removal of wetland and waterway protections across the nation. The change resulted from the Supreme Court’s decision in Sackett v. Environmental Protection Agency which effectively gutted the EPA’s authority under the Clean Water Act (CWA).
In the case, an Idaho couple brought a lawsuit against the EPA after the agency prohibited them from constructing a house near a lake, asserting that the property contained wetlands protected under the CWA. The Act prohibits pollution of ‘navigable waters,’ which encompasses wetlands like those on the Sacketts’ property. In an opinion written by Justice Alito, the Court concluded that the CWA must be understood to define ‘wetlands’ as being “indistinguishable from waters of the United States” having “a continuous surface connection to bodies that are ‘waters of the United States’ in their own right.” The opinion prioritized property rights over the need to reduce and eliminate pollution of water sources, as highlighted in multiple concurrences. The decision is a significant blow to the health and vitality of wetlands and waterways, resulting in not only a reduction in water quality, but also the efficacy of such bodies to serve as atmospheric carbon sinks. Even more, the decision will assuredly result in reduced biodiversity given that wetlands, specifically, are some of the most biologically diverse ecosystems on Earth. The opinion comes just one year after the Supreme Court made similar reductions in the EPA’s ability to enforce the Clean Air Act.
Hope on the horizon
While the current legal landscape may be disheartening, the perseverance of the Held plaintiffs and the rise of other youth-led movements in the United States offers a glimmer of hope. The ongoing UN Climate Ambition Summit will, hopefully, result in more significant action on the part of global actors. Additionally, the Biden Administration recently issued a directive obligating federal agencies to consider the costs of climate change in their budgets. While more impactful actions are needed, these steps are important. In the end, Americans should acknowledge the dedication of the Montana youths and find inspiration in their example to work towards a brighter future for the environment. Otherwise, we are catapulting towards disaster.