Implications in Colorado of the Climate Change Decision in Held v. Montana: The Constitutional Right to a Clean and Healthful Environment


By John Watson
Spencer Fane 

Montana 1st Judicial District Court Judge Kathy Seeley recently issued a 103-page opinion ruling in favor of the youth plaintiffs in a first-of-its-kind climate change trial in the U.S. Seeley declared that two provisions of Montana’s statutes were unconstitutional and permanently enjoined them.

Claims Based on the Public Trust Doctrine Contained in the Montana Constitution

The plaintiffs based their claims on the public trust doctrine as codified in the Montana State Constitution. The 16 youth plaintiffs challenged the constitutionality of Montana’s fossil fuel-based state energy policy and the “climate change exception” in the Montana Environmental Policy Act.

The youth plaintiffs claimed that the Montana State Constitution guarantees residents “the right to a clean and healthful environment,” and that the governor and the state agency defendants are responsible for maintaining and improving the environment for present and future generations.


The court concluded that the youth plaintiffs have standing stating, in part, that the youth plaintiffs proved “causation” and “redressability” at trial and: “Plaintiffs suffer and will continue to suffer injuries due to the State’s statutorily mandated disregard for climate change and GHG emission in the MEPA Limitation and due to SB 557’s removal of MEPA’s preventative equitable remedies.”

MEPA Revisions Unconstitutional

Citing the 2020 decision of the Montana Supreme Court in Park County Environmental Council v. Montana Department of Environmental Quality, the court held that the Montana code is “facially unconstitutional” under the Park County ruling. In Park County, the state Supreme Court held that: “Montanans’ right to a clean and healthful environment is complemented by an affirmative duty upon their government to take active steps to realize this right.”

Seely concluded: “Pursuant to the [Supreme] Court’s decision in Park Cnty, Mont. Code Ann. Section 75-1-201(6)(a(iii) is facially unconstitutional because it eliminates MEPA litigants’ remedies that prevent irreversible degradation of the environment, and it fails to further a compelling state interest.”

The Public Trust Doctrine

The trial court embraced the “Public Trust Doctrine” stating: “The Public Trust Doctrine is already codified in the Montana Constitution in Art. IX, Sec. 3 [citing Galt v. State, 225 Mont. 142, 144, 146, 731 P.2d 912, 913, 914 (1987); Mont. Coal. For Stream Access v. Curran, 210 Mont. 38, 682 P.2d 163 (1984), and Mont. Const. Art. IX, Sec. 3(3).].”

And finally, the trial court ruled the MEPA limitation violates the Montana Constitution. The trial court’s ruling on this issue concludes: “By prohibiting consideration of climate change, GHG emissions, and how additional GHG emissions will contribute to climate change or be consistent with the Montana Constitution, the MEPA Limitation violates Plaintiffs’ right to a clean and healthful environment and is facially unconstitutional.”

As of publication, any potential appeals could still be pending and are unavailable to the public.

Implications – Does the Public Trust Doctrine Control in Colorado?

No Similar Provision in Colorado’s Constitution

Arguments have been made that the Public Trust Doctrine in Colorado actually dates back to Aug. 1, 1876, when the territory became a state. Historically, the English civil law had adopted the concept because the monarchy held title to submerged lands beneath navigable waterways. And, thus, Colorado also held such title, subject to federal restrictions and duties owed to the general public.

However, as to the application of the doctrine to surface water, submerged lands, wildlife and environmental concerns generally, including climate change, uncertainty abounds. To resolve that some of that uncertainty, there were attempts in the mid-1990s and as recently as 2012 to amend the Colorado Constitution to include the concepts baked into the traditional understanding of the doctrine; but none of those initiatives have been approved by the voters.

What About Other Provisions of the Colorado Constitution?

Any advocate must rely, at least in part, on the “public-trust-like” concepts in the Colorado Constitution. Some of those concepts were summarized by Mac Smith in the article Public Trust Doctrine in 45 States.

Article 16 recognizes “The water of every natural stream, not heretofore appropriated, within the State of Colorado, is hereby declared to be the property of the public, and the same is dedicated to the use of the people of the state, subject to appropriation as hereinafter provided.”

Article 27 created the Colorado Great Outdoors Program, which places lottery money in a state trust fund used to preserve and manage state wildlife, parks, rivers and open space.

Article 9 identifies state school lands as public trust lands that require sound management and stewardship by the land board for the benefit of future generations which must consider aesthetic, natural and wildlife values.

How Do These Concepts Play Out in the Caselaw?

Standing to Sue May be the Major Hurdle to Overcome in Colorado.

Seely determined the youth plaintiffs in Held v. Montana had standing to pursue their claims. As stated above, the court concluded that the youth plaintiffs had standing stating, in part, that they proved causation and redressability at trial.

For Colorado, we need go no further than the recent Colorado Supreme Court’s decision in State v. Hill to identify the major hurdle a climate change plaintiff would face here. Although not a climate change case, per se, the court in Hill did not consider many of the briefs from the parties as well as from a host of amici that based their arguments on the Public Trust Doctrine stating: “This dispute has produced hundreds of pages of briefing from the parties and amici involving extensive discussions of the public trust doctrine, the equal footing doctrine, and arguments around who is best positioned to determine legal policy on access to rivers. But those subjects are ultimately irrelevant to the issue before us.”

The court continued: “Rather, this case requires us to answer just one question: whether Roger Hill has a legally protected interest that affords him standing to pursue his claim for a declaratory judgment ‘that a river segment was navigable for title at statehood and belongs to the State.’ He does not.”

Thus, for states like Montana, Hawaii, Florida and Illinois, that have codified the Public Trust Doctrine in their constitution or statutes, plaintiffs’ road to success in climate change lawsuits may be much easier than in Colorado. Standing to sue will likely be the major barrier to success.

Of course, judges here and in other states may rely on Seeley’s opinion, and the case might inspire others to sue. Indeed, the opinion may spur more states like Iowa, Connecticut and Maine to consider legislation adding a “green amendment” to their state constitutions.

– Spencer Fane attorney John Watson leverages his in-depth commercial trial and litigation knowledge to understand clients’ needs and goals and serves as a formidable advocate on their behalf. He can be contacted at 303.592.8339 and [email protected].

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