We're understandably paying attention to the Georgia indictments, but let's not lose sight of the positive verdict in Montana at the end of the trial where children were suing the state over climate inaction.
This is possible because Montana has a specific clause in its constitution requiring the state to preserve its natural environment for future generations. The win was limited: it overturns an existing policy banning climate impact statements and their use in government regulatory and approval processes.
But just because such impact statements are developed and used, doesn't mean that they will necessarily determine the outcome. Montana has never yet denied a permit for any fossil fuel extraction project, and that is unlikely to change soon.
Still, this win will set a precedent that the state constitution cannot be ignored, and future fights are now on firmer ground. Going for the easiest win first is good strategy, and it sets the persuasive precedents that make future wins easier.
If it helps, think of this as Missouri Ex. rel. Gaines which set up Sipuel v. Board of Regents of Univ. of Oklahoma which set up Sweatt v. Painter, which set up Brown v. Board of Education, Topeka, Kansas (et. al.)
Ex rel Gaines v. Canada established that you couldn't set up a school for white students and set up no educational opportunity for Black students (though in Ex rel Gaines the court left open the possibility of segregated schools that met Plessy's "separate but equal" test). Over time, they put more and more stress on the fact that the opportunity must be equal. The plaintiffs didn't challenge Plessy outright. The trapped the white legal community by taking them seriously.
"We know you didn't lie in Plessy," they implied, "And we know you're honorable white folks. So we know you'll apply Plessy fairly even when that requires ruling in favour of Black plaintiffs who did not get separate or equal opportunities."
Whites responded by insisting that they were, of course, not lying or making any excuse when SCOTUS ruled in Plessy or when hundreds of lawyers later cited Plessy against Black plaintiffs' cases. And so Missouri was required to provide education. Shit education. Unequal education. Separate education. But still the precedent was set that Plessy could in fact be cited to help Black people, not only to hurt them. Only after that did the next cases progressively challenge state actions as "unequal" when services existed for both white and Black students. Ex rel Gaines took on the easiest case: there was no education for Black students at all. The courts could hardly say that situation was equal and still maintain their veneer of honour.
Likewise, this Montana suit took on the easiest case: challenging law forbidding the state from even considering the possibility that their actions might have an impact on the environment. The conservatives can't very well say that they value the constitution when their state constitution requires that the environment be protected if they rule that the state can literally prohibit the very idea that the environment might be protected. The law was clearly 180 degrees in opposition to the clear statement of the constitution. While I don't know if this was a conservative jurist, the plaintiffs went in holding a strong hand b/c they knew that even if they drew a conservative judge, that judge would be trapped by the conservative judicial movement's pretence to textualism, by their protestations to honour and non-activist interpretation.
It is only now that the courts have admitted that yes, the clause exists and has the capacity to constrain legislative and executive law and rule making that we can go on to challenge more specific laws and rules as insufficiently protective (like schools being insufficiently equal).
This isn't going to play out particularly quickly (Ex rel Gaines to Brown was 16 years) but this is a very important step in a progressive strategy to make things better.
Of course the GOP being the GOP, look for them to amend the constitution in the near future to remove this clause.
