A landmark climate-change case won by a group of 16 children and youth in Montana last week is echoing across Canada, where young people have mounted their own lawsuits in the hopes of compelling governments to take more decisive action to slow the rate of global warming.
A U.S. district court judge ruled on August 14 that the state of Montana violated the constitutional rights of the young plaintiffs to a clean and healthful environment through legislation, enacted in 2011, that limits the environmental factors that can be considered when approving oil and gas projects. The court declared that legislation unconstitutional, meaning that now Montana must consider climate change and the emission of greenhouse gases when approving fossil fuel projects.
“I’m grateful and relieved, because the climate knows no bounds conjured up in the minds of humans,” says Shaelyn Wabegijig, one of seven young people suing the Ontario government in their own climate lawsuit. “A win for any of us is a win for all of us.”
The Montana case marked the first constitutional climate trial in U.S. history and is part of a growing movement around the world to use courts as a way to force governments and corporations to take action. Climate litigation has more than doubled in the last five years, according to the UN Environment Programme and the Sabin Center for Climate Change Law at Columbia University, from 884 cases in 2017 to 2,180 in 2022. Most of the cases are in the United States. Thirty-four have been brought by and on behalf of children and youth under the age of 25, including by girls as young as seven in Pakistan and India.
“It’s a huge moment for climate litigation in the world,” says Danielle Gallant, a lawyer with Canadian environmental group Ecojustice, which has been representing the Ontario youth in their legal fight. “For a jurisdiction in the U.S., one of the world’s largest emitters, to be held accountable and to set that precedent in that country, I think it’s very important ... Every victory that we see builds that momentum towards further victories in other jurisdictions.”
The decision also reflects the arc of many other decisions in North America and around the world “that are recognizing the imperative of courts to supervise the governments’ often woefully inadequate efforts to grapple with the climate emergency,” says Chris Tollefson, a B.C.-based lawyer representing another youth-led climate-change lawsuit in Canada, the first of its kind that is federal in nature.
In an email, Tollefson says the Montana judgment “bolsters” the claims being made by his clients, 15 youth from seven provinces and one territory. In that case, La Rose et al vs. His Majesty the King, the young people argue that the federal government is violating their right to life, liberty and security of the person under Section 7 of the Charter of Rights and Freedoms, along with their right to equality, under Section 15, since youth are disproportionately affected by the climate emergency. The case was dismissed in 2020, and an appeal was heard in February of this year, with no decision yet rendered.
“Even though the constitutional provisions being interpreted in the Montana case are different, in many ways the Montana decision backs up arguments the La Rose plaintiffs have made,” Tollefson says. “Both the La Rose and the Montana plaintiffs have made very similar arguments with respect to the science of climate change, and the causal role and contribution that can be attributed to government conduct.”
It’s a huge moment for climate litigation in the world.
- Danielle Gallant, lawyer at Ecojustice
The Ontario case, Mathur et al vs. His Majesty in Right of Ontario, is also rooted in the Charter. It was launched in 2019 by seven youth who argued that a decision by the government of Premier Doug Ford to roll back emission targets violated their rights to life, equality and security of the person.
The group secured a historic win in 2020, when a court ruled that the case deserved its day in court, and then again in 2021 when another court dismissed an application by the Ontario government to appeal that ruling. This paved the way for a full hearing in September of last year, the first of its kind in Canada. In April, a judge dismissed the case. The applicants have launched an appeal.
While the ruling was a loss, Gallant says it contained some positive elements that give her and the plaintiffs hope.
“I think it’s really key that the judge fully endorsed the important science of climate change,” she says. “There was really no debate that climate change is real.”
The judge found that “Ontario’s [rolled back] target is increasing the risk of harmful and deadly climate impacts on Ontarians,” engaging the section of the Charter that has to do with the right to life and security, Gallant says, although the judge ultimately ruled that there was not a full violation.
And then there is the precedent-setting justiciability of the case – that it is appropriate for courts to weigh in on matters of climate change. Other cases have not been able to cross that hurdle.
That’s a significant victory for Wabegijig, who recalls sitting in the courtroom and feeling chills as she heard the legal arguments being made.
“As a young Indigenous woman, it’s not new or surprising that government-sanctioned actions are impacting our lives, violating our rights and thwarting our responsibilities to the earth,” notes the 26-year-old, who is Algonquin of Timiskaming First Nation.
“It’s not simply a political issue. It’s an existential issue,” she adds. “It’s a matter of the continuation of life as we know it or death and destruction, and it’s no exaggeration or fear-mongering. It’s simply what it is and it’s happening right now.”
It’s not simply a political issue. It’s an existential issue.
- Shaelyn Wabegijig, one of seven youth suing Ontario government
In the Montana case, the court heard about how “anthropogenic climate change is impacting, degrading and depleting” the state’s natural environment, with higher temperatures, longer droughts, and more extreme weather events. It also heard from doctors about how “children are uniquely vulnerable to the consequences of climate change” as they are in physiological and psychological development.
And, crucially, it heard from the youth and children themselves: Mica experienced a sense of loss from having to stay inside because of wildfire smoke, Sariel suffered distress from the loss of culturally important plants and snow mentioned in creation stories, Grace was scared because the glaciers were melting from the state she loves, and Claire had anxiety over whether it’s a safe world in which to have children.
A spokesperson for Montana Attorney General Austin Knudsen called the ruling “absurd” and part of a “taxpayer-funded publicity stunt.”
“Montanans can’t be blamed for changing the climate – even the plaintiffs’ expert witnesses agreed that our state has no impact on the global climate,” said Emily Flower. “Their same legal theory has been thrown out of federal court and courts in more than a dozen states. It should have been here as well.”
But Wabegijig says it’s only a matter of time before more courts, including in Canada, follow suit.
“As youth we are educated on climate science, and we carry the crushing weight of the climate emergency, and we’re putting this knowledge into our actions. Governments must do the same.”
