And in Alaska and Montana, no less.

In Sagoonick v. Alaska, on January 28, the Alaska Supreme Court upheld a lower court decision dismissing claims that various state policies promoting fossil fuel production violated plaintiffs’ rights under the Alaska Constitution. (Sagoonick is one of the many “youth climate cases” asserting state constitutional rights.) The Court began its analysis by noting that the “factual allegations and legal claims” were similar to those in its 2014 decision in Kanuk ex rel. Kanuk v. State Department of Natural Resources–a case where, “like this one, the plaintiffs sought a court mandate for substantive State action in response to potentially catastrophic climate change.”

Having unanimously rejected those claims in Kanuk, it is not surprising that it also rejected them here. In fact, Kanuk is cited throughout the decision.  What is surprising is that this time, the Court split 3-2, and the dissent was written by Kanuck’s author, Judge Maassen. 

The dissent began with: “In my view, a balanced consideration of prudential doctrines requires that we explicitly recognize a constitutional right to a livable climate — arguably the bare minimum when it comes to the inherent human rights to which the Alaska Constitution is dedicated.” Judge Maassen agreed that the case should be dismissed if the Court simply applied Kanuck.  But eight years of worsening climate change effects, combined with continued legislative inaction, led him to conclude: “I am no longer convinced that nothing can be gained by clarifying Alaskans’ constitutional rights and the State’s corresponding duties in the context of climate change.”  (By “clarifying” rights and duties, Judge Maassen meant that the court could grant declaratory relief and stating whether the state policies at issue violated the Alaska Constitution, but not order the defendants to take any action; Judge Maassen agreed that such an order would be improper.)

This is the latest indication – and a very serious one – that the courts are getting tired of watching Congress and most state legislatures (like Alaska’s) fiddle while – literally – Rome burns. To this effect, Judge Maassen noted: “As recently summarized by Chief Justice Walters of the Oregon Supreme Court: ‘How to address climate change is a daunting question with which the legislative and executive branches of our state government must grapple. But that does not relieve our branch of its obligation to determine what the law requires.’”

Meanwhile, Montana’s similar youth climate case is proceeding largely under the radar. In Held v. State of Montana, the allegations are that the State Energy Policy statute (which, surprise, surprise, promotes the use of fossil fuels), violates several provisions in the Montana Constitution, which “stated generally,  . . . declare that current and future citizens of Montana, regardless of age, possess an inalienable right to a clean and healthful environment.” In August, the trial court dismissed the claims for injunctive relief but allowed claims for declaratory relief  to proceed. Surprisingly, the state did not seek immediate review of that decision and, as a result, those claims are going to trial next February.  

These decisions hold two immediate lessons.  First, seeking declaratory relief but not asking the court to order state (or federal) officials to take or refrain from taking specific acts may be the way of the future for these cases.  Even without an injunction, a decision saying that a particular law or agency action violates the state (or federal) constitution will substantially undercut the use of that statute or the chances of an agency repeating the offending behavior.  Second, judges in places like Montana and Alaska getting fed up with state worship of fossil fuels indicates that eventually the judiciary will take substantive action on climate change if legislatures continue to do nothing.

Photo credit: iStock