Montana's climate hoolihan
Lassoing the constitutional right to a "clean and healthful environment"
In rodeo lingo, a hoolihan is an overhand roping throw used literally to “take the bull by the horns” and wrestle him to the ground. Animal welfare concerns noted, the hoolihan can be a symbol of subduing anything bucking or out of control — perhaps environmental disregard — with a cowboy’s precision and skill.
Montana teens have thrown a climate hoolihan.
The recent Montana Supreme Court decision to uphold their rights to a “clean and healthful environment,” as guaranteed by the state’s constitution, serves as a modern and welcome legal hoolihan against anti-future, state-level actions. The court’s strict reading of existing constitutional language demonstrates how a plain, text-based read can reign in the wild forces otherwise active in the economy that threaten public welfare, like a clean environment.
In Massachusetts, we are employing a similar wrangling strategy, urging legislators to revisit existing statutes related to fiduciary duties. These existing laws, we argue, are underestimated for their potency to change how, why and for whom trillions of dollars vividly pinned to dignified futures are put to work. As conservative judicial and political trends emphasize adherence to the text of the law, even a red state of the American West like Montana can uphold progressive principles by reading the law as already written.
If Montana proves that environmental integrity is a right, then our fiduciary work proves how we can already pay to fulfill that right.
The Montana decision may still face challenges in enforcement, leaving its ultimate impact on climate outcomes unclear. However, its near-term influence on legal and policy landscapes offers several reasons for optimism:
Setting a Precedent
Montana’s ruling establishes that governments can integrate climate impacts into their constitutional obligations. This precedent could inspire similar litigation in other states and even at the federal level, creating a cumulative effect over time.Policy Influence
By requiring Montana to incorporate climate assessments into permitting processes, the decision may reshape state policies, discouraging harmful environmental practices such as fossil fuel development.Public Mobilization
This case demonstrates the power of constitutional rights to address climate issues, energizing advocacy efforts and influencing public opinion everywhere.Ripple Effects
Other US states with constitutional environmental protections — like Pennsylvania, New York, and Hawaii — could build on this ruling to drive judicial climate-policy reviews.Youth Activism
The case showcases the efficacy of youth advocacy, potentially inspiring a new wave of climate-related legal and policy initiatives.
The Role of “Circumstances then Prevailing”
Not every state will have the existing constitutional “raw materials” for a Montana-style approach to climate. It boils down to the words written on the page.
For example, Article 97 of the Massachusetts Constitution states:
"The people shall have the right to clean air and water, freedom from excessive and unnecessary noise, and the natural, scenic, historic, and esthetic qualities of their environment."
Unlike Montana's constitution, which explicitly recognizes environmental rights as inalienable and mandates the state and individuals to maintain and improve the environment, Massachusetts' Article 97 language is less robust and mostly used to protect public lands designated for conservation. Bottom line: Teens here face a more complex legal landscape to achieve the same legal outcome as Montana.
That said, it’s also unclear if the scope of Montana’s decision extends to the choices made by fiduciaries of its public, state-level pension. In the pension world, however, we do have a far more common phrase in existing fiduciary regulations: “Circumstances then prevailing.” This shows up in ERISA and state laws like here in Massachusetts.
It means that fiduciaries are supposed to adapt to the changing circumstances today that create a risk to the delivery of pension benefits maybe decades away. For instance, increasing evidence from financial and scientific reports underscores climate risk as a prevailing and material factor impacting a pensions financial performance. That’s common sense. However, it’s not common legal opinion — but, with Montana, that has begun to change.
This is why Montana offers hope that isn’t perhaps immediately obvious. By adhering to the letter of the law of “circumstances then prevailing”, fiduciary responsibilities can similarly align with long-term societal and environmental goals.
Duty to Future Generations
Montana’s decision emphasizes the state’s duty to protect future generations, a principle that mirrors fiduciaries’ obligation to ensure sustainable, long-term security for pension participants.New Lens on Existing Text
Just as Montana courts reread constitutional language to address climate realities, fiduciary statutes are overdue for a modern review. Climate risks must be incorporated into “prudent” decision-making.Legal Leverage
Montana’s case shows how existing legal frameworks can enforce accountability without legislative overhauls. Similarly, fiduciary statutes can enforce climate accountability within the current legal structure.Proactive Duty
Montana’s decision imposed a duty on the state to prevent harm to environmental rights. Likewise, fiduciaries failing to consider climate risk under “circumstances then prevailing” could be deemed in violation of their duty to safeguard long-term returns and beneficiaries’ interests.
Whether through constitutional rights or fiduciary statutes, the mandate is clear: Application of the law must reflect the realities of the present to secure the future. It’s time to take the bull by the horns.