Annie Kuo Becker: Welcome to Discovery, a University of Washington School of Law podcast where we interview the law school's faculty and distinguished guests from around the world. I'm your host Annie Kuo Becker. Happy New Year to our listeners, and cheers to new adventures.
On this season of Discovery, we're also looking back at 125 years of law school history. Did you know that Lucille Lomen, a UW Law alum from the class of 1944, was the first woman to ever serve as a law clerk for a U.S. Supreme Court justice? The next one wouldn't be for nearly two more decades, in 1966.
Today, we're talking about the very recent decision filed December 18 by the Montana Supreme Court in Held v. Montana. This was the first ever constitutional climate trial in U.S. history, and interestingly, one brought by 16 youth plaintiffs in Montana. They range from the age of two to 18, and we're interviewing one of our new faculty Jeremiah Chin, assistant professor of law, who teaches constitutional law and race and the law here at the University of Washington. Jeremiah received his J.D. and Ph.D. in justice studies from Arizona State University. His recent publications analyzed the school-prison pipeline, Confederate monuments and children's rights.
Welcome to UW Law and the podcast, Jeremiah.
Jeremiah Chin. Thank you so much for having me.
AKB: So, first, Jeremiah, you got back recently from a children's rights conference — and by the way, listeners, he's with us with a water bottle sticker that says “Let the youth be heard.” — so, as a member of the children's rights community, would you tell us about children's rights as human rights? I have a 13-year-old. What rights does a 13-year-old have under the U.S. Constitution? Are they any more or less than a grown-up?
JC: Well, theoretically, they should have all the same rights as an adult, because a lot of our constitutional language is really broad. You know, stuff like the 14th Amendment, when we're thinking about due process or equal protection, it says “No state shall deny any person,” so kids are people, theoretically equal protection and everything should apply all the same. But when the Court has held on issues involving children as plaintiffs, usually the kids’ rights get boiled down or whittled away under some kind of institutional framing, the idea of protecting children usually comes up pretty importantly.
The most famous Supreme Court case involving kids and their rights under the Constitution is Tinker v. Des Moines, involves a school where a bunch of kids — and by a bunch, I mean about three kids — wore black arm bands to protest the Vietnam War because they were antiwar generally, and their idea was that it would start a conversation with their classmates about what the war means and why they're opposed to war generally.
They were immediately suspended from school after the school told them that they could not wear the arm bands because it was too distracting from the school environment. And the Supreme Court eventually rules that, in the words of the court, “The students do not leave their constitutional rights at the schoolhouse gates.” So, that implies that children have rights, but the court hasn't really articulated it so clearly.
Internationally, from a human rights framework, we have stuff like the U.N. Declaration on the Rights of the Child, which lists out a bunch of really wonderful articulations of why children's rights are so particular and special — the special status of children, the need for protection — as more than just, you know, shielding them from all harm, but enabling them to grow and think and change and challenge even what goes on within the adult world.
I think, for children's rights in the United States, in particular, one of the things that's drawn my interest is the expression and participation elements of it. Particularly for kids like, you know, the plaintiffs in the Held decision, you have a bunch of kids who are directly impacted by climate policy, as they articulated in the case, but they also aren't able to do anything about it. They can't vote, they can't engage in the administrative procedures. They can hope that their parents do the best by future generations. But a lot of the times, you know, adults and parents tend to be thinking about themselves and the way they see the world now, rather than what the world would be or could be in a world that children are going to inhabit and will continue to inhabit.
AKB: Right. We have to remember the next generation, right, about how they will be impacted by the policies or business decisions that we make today. And this Held v. Montana case, it involves, like you mentioned, climate change. In this case, the youth turned to the courts for rights protection, asking the judge to declare that Montana's fossil fuel energy policies and actions violate the youth state constitutional rights. What can you tell us about how the 16 youth across the state of Montana organized and sued their state government? I'm also interested in like how a two-year old got involved as a plaintiff.
JC: Well, I mean, this is a beautiful, kind of, synergy of a bunch of different features. One of them that you mentioned was the state constitution. So, this is not a federal constitutional claim, and Montana is really a special case because their constitution, one, is relatively new. It was redesigned and recreated in the 70s, and so it has all kinds of really innovative constitutional provisions, including a right to a clean and healthful environment, which is the main constitutional claim that the children asserted and held. But two, it actually has explicit provisions for children's rights under the Montana State Constitution, saying that all the fundamental rights in their article two, which kind of outlines all the rights of individual citizens in the state of Montana, all of those apply to everyone under the age of 18, while defining adult as people over the age of 18.
So, it provides explicit, kind of, textual grounds for why children have the same rights as an adult, with the limited exception of when the legislature is enacting constitutional provisions or laws that are specifically designed to protect children. So, it gives a little bit of wiggle room, but not the same kind of implied broad-brush strokes that the Supreme Court has given, because we really don't have anything in the U.S. Constitution that does the same. So, these 16 youths get together under Held, they're organized thanks to a nonprofit organization named Our Children's Trust, which helps to coordinate this kind of impact litigation that's really addressed to climate change because especially for youth, like I said before, they have no control over climate policy, emissions, things like that. And so, they challenge a piece of the Montana State Legislature's regulations that specifically limited the legislature or any regulatory agency.
Montana, like a lot of states, has its own Environmental Protection Agency in addition to the federal one, and so Montana's legislature limited their environmental protection agency from considering greenhouse gas emissions as a legislative tool. So, it's like cutting off an entire line of data about how the legislature should act with regard to climate change. And so, they're challenging very, kind of, simply that the legislature should be open to hearing all kinds of concerns and problems that are affecting the climate under their right to a clean and healthful environment.
AKB: And that environmental agency was like — is it MEPA, MIPA, MEPA?
JC: MEPA. You know, lawyers, we love to invent all of our little acronyms, but it's the Montana Environmental Protection Agency. One of the things that's really wonderful about the Held case in terms of articulating the children's use and enjoyment of the environment is that the kids were able to say, like, what about the outdoors they loved so much, right? And so, you had a combination of children who enjoyed hunting and fishing with family members. You had children who enjoyed cross-country skiing or just like being outside. And the ways in which climate change has affected the amount of enjoyment outside they have, or air quality, something that we've definitely experienced up here in Washington in the past couple of years, but also including indigenous rights as well.
And so, you know, you had children who are members of different indigenous nations within the state of Montana talk about the importance of the climate to their belief systems and their way of life. The importance of snow was one of the ones that always stood out to me in the briefings for Held that moved me deeply because the plaintiff is talking about how there are specific stories that are only told when snow is on the ground, and so if snow doesn't fall, those stories don't get told. So, what happens to those stories if the climate changes? And just really profound kind of thinking that comes from these youth plaintiffs that I think is so innovative about the claim that they're asserting here, even if the very specific legal claim is pretty narrow,
AKB: Yeah, and then the personal narratives about their quality of life. What were the youth plaintiffs’ strongest arguments in their case.
JC: I think the strongest argument really derives from the text of the Montana constitution. And so, their strength of their argument was that the Montana constitution secures a clean and healthful environment. It doesn't explicitly define what clean and healthful are, but their strength of their argument comes from the state legislature, which has guaranteed to all people in Montana that right to enjoy the clean and healthful environment, because Montana is a state that is very well known for its outdoors and so securing that under the Constitution makes a lot of sense.
So, you're combating essentially a state regulation through the legislature versus a constitutionally secured right, and under our understanding of constitutions, both state and federal, a constitutional right will always defeat any kind of statutory restriction on that same constitutional right.
AKB: So, what did the Montana state environmental agency argue? I know there was like one justice that dissented from the majority saying that the plaintiffs didn't have standing. Was that part of the state's argument as well?
JC: Yeah, they really echoed the state's arguments. And so, the state here is the state legislature who is arguing that climate change is something that basically affects everybody. There's nothing the Montana State Legislature can do to stop climate change. Therefore, there is nothing that needs to be done by the Montana State Legislature to affect climate change. It's a more global kind of problem, which, you know, is kind of a disaster nihilism that has happened, I think, that happens especially around climate change, where it just seems like such a big problem that unless we can fix the whole thing, we shouldn't do anything. And so that kind of belief pervades throughout the arguments.
It gets articulated through the basic constitutional principles that we see in any legal argument, where in order to bring a claim before any court, state or federal, a plaintiff must show that they have standing and standing just basically means, in legal terms, that you've been injured in some way by the defendant. The defendant themselves was the cause, directly or indirectly, of your injuries, and those claims and those injuries can be redressed in some way by the court.
And so the Montana State Legislature was arguing that even if you're injured by climate change, and so they didn't take the, kind of like, pie in the sky approach, that climate change doesn't exist — thankfully, that's not, they didn't even think that was a tenable argument — but they did argue that the injuries in over the clean and healthful environment weren't directly caused by this MEPA regulation. This change in the regulation didn't cause climate change, and a court can't issue an order saying, stop climate change now, right?
It would be really nice if a court could issue a writ saying, like, climate change is over, the environment has to fix itself. Okay, great, but that doesn't happen, right? And so the state's argument was to appeal to the court and saying this is such a big problem that it isn't really for courts to address, a legislature could try and figure it out later down the line, but this is really something for the world and the federal government to be addressing, not a particular state.
And the Montana State Supreme Court, thankfully, didn't buy that argument. They said, well, the redress is that this MEPA limitation is very narrow. It says the state legislature can't consider this thing that is certainly contributing to climate change in terms of greenhouse gas emissions. And so, preventing the legislature from considering greenhouse gas emissions as a part of climate change is going to affect the clean and healthful environment. So, stopping them from not considering something is something a court can easily do.
AKB: So, there was a six-one majority decision in favor of the youth plaintiff’s case. Could you tell us what the conclusion was of the Montana Supreme Court in their declaratory judgment?
JC: So, the declaratory judgment by the Montana State Supreme Court was just letting the trial court's decision stand that the youth had asserted a claim to a clean and healthful environment, that they had standing to bring that claim, they were actually injured, it was caused by this MEPA regulation, or this, this change to the MEPA regulations, and that undoing that regulation would address the claim being brought before the court. And so, the trial court had found that the removing of the regulation itself, or enjoining the legislature from prohibiting the legislature from thinking about climate change, right?
I have to keep on pausing and, kind of, thinking through because there's so many double negatives in this case, which I think, to me, speaks to the absurdity of what was going on, is that, like, the legislature is preventing itself from thinking about something that is actually happening, but they don't want to talk about happening. Okay, the mess of contradictions that's been awoken by this claim. And so, the state Supreme Court, all it really did was say that this MEPA regulation is now invalid under the state constitution. The parties, the youth in this case had standing to bring their claim.
The unfortunate part, from my perspective as a children's constitutional rights person, is that they really didn't explicitly address the youth aspect of this case, or why the youths’ injury was so pertinent and relevant, right? It didn't address the fact that they're locked out of the political process. It didn't stress the fact that the Montana State Constitution secures them rights on an equal playing field with other persons, right? Nothing the legislature was doing was specifically addressing why prohibiting consideration of greenhouse gasses effect on climate change was going to protect children, right? That would have been another level of absurdity that I'm sure the legislature would have tried to reach. But the court doesn't explicitly address any of those. It treats it as a very, kind of, plain, vanilla case, which in a lot of ways it is. It's just saying, hey, you're stopping yourself from thinking about something that's related to climate change, and pretty much everyone agrees is related to climate change. We're not asking you to solve climate change. We're just asking you to consider all of your options as far as spending and investments and policies about greenhouse gas emissions in the state going forward.
AKB: I got the verdict passed on in an email from another faculty member here with a “woohoo!” But it also sounds like it came up a little bit short.
JC: It's hard for me to say because I want to talk up how important this case is, because it really is a landmark in terms of asserting the rights of youth versus climate change and trying to articulate that particular point. I think the big concern for me is replicability of how broad does this reach? Right? A State Supreme Court's ruling shouldn't have reached beyond its state, and that makes a lot of sense, but I think it's a big signal to those of us who are invested in both children's rights and climate change broadly, to start thinking about how we can amend our constitutions, what kind of provisions we can include on a state level to really make these things happen.
So, it's a big woohoo. It's a big win, but I also am viewing it with more of a mandate of there's more work to be done elsewhere. Unfortunately, it doesn't fix climate change. It does, however, present us with a bunch of tools and options.
AKB: So, on that note, there's another children's climate change case that's been going on for over a decade, Juliana v. The United States. I'm curious, how was this state verdict reached so quickly compared to the federal case? I mean, maybe that in itself lies the answer, right? That there's like broader claims that are being sought in the federal case, whereas this state level case involved a narrow issue and a narrow remedy.
JC: Right. I think part of it is the narrowness of the Held decision, but also I think the foundation is a lot stronger in because you have those explicit constitutional provisions for the environment and for youth rights, and so those two factors make it a lot quicker to reach the kind of conclusions that Juliana is really struggling with, because they're still kind of held up on the standing and relief pieces of the claim.
So, whether or not a declaratory judgment — a court declaring that yes, these youth have been injured by climate change — well, that doesn't fix climate change. And so I think the response is, well, we're not asking for climate change to be fixed, but we have youth who are locked out of the political process, who can't vote for somebody based on their feelings about climate change until they turn 18, and even then, you know, we saw in the last election a lot of concerns over how much does my vote really matter? Does voting for a particular officer change the climate change policy and does it change as quickly as we need it to?
I think youth have been on the front lines, thankfully, of climate change activism, whether it's, you know, the celebrities like the Greta Thunbergs of the world to, you know, just local youth starting recycling programs, right? Stuff that seems relatively minor, that doesn't fix climate change, but really gets youth, and I think people broadly, thinking about the environment and how to better protect and preserve and steward it for future generations.
And so, Juliana has really been held up in the same kind of liminal space of, what is the court going to do, or what are you asking of the court? Montana was very specific, like I said in the foundations, both under the constitutional principles and the statute directly being attacked there, right? The state regulation was really kind of a narrow way of cabining the issue of climate change right, preventing us from talking about greenhouse gas emissions.
Juliana is trying to assert that this implied protection of the United States, that their rights under the Constitution also includes environmental protections as well, and so you're going to have to imply a lot more from the Constitution, whereas the court has very much taken, especially in recent years, the opposite kind of approach. Innovation is not at a premium in terms of fundamental rights of the Supreme Court. Instead, we see the history and tradition framework really being pushed by the court. And so for framers who really weren't thinking much of the environment beyond the, you know, appropriation of resources from the environment, the appropriation of lands from indigenous peoples and then the use of enslaved peoples to work on that land, they weren't really thinking about climate change because they weren't monitoring climate like that. Other than, you know, Ben Franklin's Almanac and stuff like that.
It's a lot harder road to follow in the federal courts. This is coming out of the Ninth Circuit, which is stereotypically more liberal than some of the other courts. I say stereotypically because that's kind of an assumption that people have because it encompasses California and Washington and a lot more typically blue states. But the court itself hasn't been an easy path for the Juliana plaintiffs, unfortunately. The claim hasn't even gone to trial. They haven't gotten to have the same amount of evidence presented to the court that the Held plaintiffs got very quickly to, again because of the state constitutional provisions.
So, I think the combination of Juliana and Held really makes me think about what can state constitutions do, especially in terms of these global problems, right? Sometimes our hyper-focused local solutions can be super effective faster than trying to fix everything all at once through federal claims.
AKB: Yeah, it's a fascinating contrast, right? They both involve youth and climate change fossil fuels, but it's a great landscape to have these two cases within constitutional law and the different levels of government.
Thank you so much for taking time to brief us on the recent verdict in Held and how it applies to the landscape of children's rights. I hope we'll have you back. He has like the best radio voice ever.
JC: Thanks so much for having me. I'll be on anytime.
AKB: Thank you, Jeremiah. Dr. Jeremiah Chin is assistant professor of law here at the University of Washington School of Law. His research focuses on race and indigeneity, first amendment rights and children's rights and belongings. He recently gave a mock law class to high school students focusing on constitutional law and youth centered cases.
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