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Climate litigation is in full swing with numerous cases being brought against, carbon majors and governments by a wide variety of plaintiffs. Constitutional climate cases saw some success in the US with a Montana trial court ruling in favor of Our Children’s Trust, requiring that the state adopt more climate friendly policy. Constitutional climate cases argue that government action (or inaction) infringes on either federal or state constitutional rights, and cases have been cropping up around the country. Recently, one such case in Hawaii reached a conclusion, not in the form of a court decision, but rather in the form of a settlement. ArentFox breaks down the settlement in a memo stating:

“The first-of-its-kind settlement, which does not require any monetary payment… obligates Hawaii’s Department of Transportation (HDOT) to develop a plan for the state’s transportation sector to reach net zero greenhouse gas (GHG) emissions across ground transport and inter-island sea and air transportation network by 2045. The 2045 goal aligns with a date chosen by Hawaii’s legislature as their target for this sector to reach net zero. The settlement likewise contains various public participation requirements, under which committees are established with members of the plaintiff group given participation rights and aspirational goals for what funding HDOT will request in the future from Hawaii’s legislature.”

This settlement marks another win for climate activism in the courts and points to the possibility that these early wins might be a bellwether for the rest of the country. However, results may vary widely at the state level due to differences in state constitutional provisions. The Montana case hinged on the right to a healthy environment enshrined in the Montana constitution. The Hawaii case similarly relied on state constitutional provisions ensuring the right to “life, liberty, and property” which has been interpreted by the Hawaii Supreme Court as extending to the right of a life-sustaining climate system. Many states do not have such provisions or have courts that may not interpret them as favorable to climate activists. Ultimately, constitutional litigation will likely be a mixed bag, but that won’t stop activists who are moving forward with cases across the country.

Our members can learn more about US climate litigation here.

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The Editor

Zachary Barlow is a licensed attorney. He earned his JD from the University of Mississippi and has a bachelor’s in Public Policy Leadership. He practiced law at a mid-size firm and handled a wide variety of cases. During this time he assisted in overseeing compliance of a public entity and litigated contract disputes, gaining experience both in and outside of the courtroom. Zachary currently assists the editorial team by providing research and creating content on a spectrum of ESG… View Profile