A new tool in the fight to save the planet? A 6th-century Roman doctrine.

A decade ago, the idea of young people suing their governments for failing to act on climate change seemed naive. How would they prove in court that planetary warming was harming them or would harm them in the future? Even if they did, could they show that forcing one state to curb greenhouse gas pollution would spare them harm from global climate change?

And there was another, more fundamental question: Does government approval of fossil fuel projects abridge young people’s constitutional rights — whether to life, liberty and happiness or to a healthy environment? Especially in the United States, the notion that teenagers might ever win such cases seemed a pipe dream.

A Montana court decision has suddenly made it a reality.

The unprecedented ruling for Montana youths ages 5 to 22 — including a rancher’s daughter, a fly fisherman, hunters and a Salish woman whose tribal land is threatened by wildfire — must survive an appeal to the state Supreme Court. But already it gives weight to an aspiration of young people worldwide to use the courts to force governments to address climate change.

The ruling would do away with a provision in the Montana Environmental Policy Act that forbids state agencies from considering the climate when greenlighting new fossil fuel projects such as coal mines. The ruling is based on the rights of residents alive today, and of those yet to be born, to a clean and healthy environment.

If judges elsewhere adopt the Montana judge’s reasoning, citizens could force lawmakers to finally enact better climate policy. And if this becomes a significant trend, future generations might exert greater power over political decisions of all kinds.

This might be a long shot. But many democracies do, in theory, guarantee their citizens the right to clean air, water, farmland, forests and other natural resources. The idea of getting judges to enforce this guarantee in more places is not unreasonable. Governments would merely be held to promises they’ve already made. The Montana ruling, for instance, rests on an explicit promise in the state’s constitution.

The state and each person

shall maintain and improve

a clean and healthful environment

in Montana for present and

future generations.

CONSTITUTION OF MONTANA

The state and each person

shall maintain and improve a

clean and healthful environment

in Montana for present and

future generations.

Constitution of montana

The state and each person shall

maintain and improve a clean and

healthful environment in Montana for

present and future generations.

CONSTITUTION OF MONTANA

This right is widely acknowledged around the world. Similar language occurs in the national constitutions and policies of 160 countries. In some instances, it is guaranteed in international treaties the governments have signed.

160 countries recognize the right to a healthy environment

Each square is one of the 193 United Nations member countries.

Guaranteed by constitution, laws

or international treaties

Not guaranteed

U.K.

Israel

Japan

China

Australia

New

Zealand

Small island nations:

These include some of the

countries least responsible

for but most effected by

climate change.

U.S.

United States:

The right is guaranteed

by some states but not

nationally recognized.

Countries not labeled on the map that do not recognize the

right include Afghanistan, Andorra, Bahamas, Barbados,

Brunei, Cambodia, Dominica, Grenada, Kiribati, Laos,

Lithuania, Marshall Islands, Micronesia, Myanmar, Nauru,

North Korea, Oman, Papua New Guinea, Samoa, San

Marino, Singapore, Solomon Islands, Tonga, Trinidad and

Tobago, Tuvalu and Vanuatu.

Sources: David Boyd, the U.N. envoy on human rights and

the environment; U.N. Human Rights Council

THE WASHINGTON POST

160 countries recognize the right

to a healthy environment

Each square is one of the 193 United Nations

member countries.

Guaranteed by constitution,

laws or international treaties

Not guaranteed

U.K.

Israel

Japan

China

Australia

New

Zealand

Small island nations:

These include some of the

countries least responsible

for but most effected by

climate change.

U.S.

United States:

The right is guaranteed

by some states but not

nationally recognized.

Countries not labeled on the map that do not recognize the right include

Afghanistan, Andorra, Bahamas, Barbados, Brunei, Cambodia, Dominica,

Grenada, Kiribati, Laos, Lithuania, Marshall Islands, Micronesia, Myanmar,

Nauru, North Korea, Oman, Papua New Guinea, Samoa, San Marino,

Singapore, Solomon Islands, Tonga, Trinidad and Tobago, Tuvalu, Vanuatu.

Sources: David Boyd, the U.N. envoy on human rights and the environment;

U.N. Human Rights Council

THE WASHINGTON POST

160 countries recognize the right to a healthy environment

Each square is one of the 193 United Nations member countries.

Guaranteed by constitution, laws or international treaties

Not guaranteed

United States:

The right is guaranteed

by some states but not

nationally recognized.

U.K.

Israel

U.S.

China

Japan

Australia

New

Zealand

Small island nations:

These include some of the

countries least responsible

for but most effected by

climate change.

Countries not labeled on the map that do not recognize the right include Afghanistan, Andorra, Bahamas, Barbados, Brunei,

Cambodia, Dominica, Grenada, Kiribati, Laos, Lithuania, Marshall Islands, Micronesia, Myanmar, Nauru, North Korea, Oman,

Papua New Guinea, Samoa, San Marino, Singapore, Solomon Islands, Tonga, Trinidad and Tobago, Tuvalu and Vanuatu.

Sources: David Boyd, the U.N. envoy on human rights and the environment; U.N. Human Rights Council

THE WASHINGTON POST

160 countries recognize the right to a healthy environment

Each square is one of the 193 United Nations member countries.

Guaranteed by constitution, laws or international treaties

Not guaranteed

United States:

The right is guaranteed

by some states but not

nationally recognized.

U.K.

Israel

U.S.

China

Japan

Australia

New

Zealand

Small island nations:

These include some of the

countries least responsible

for but most effected by

climate change.

Countries not labeled on the map that do not recognize the right include Afghanistan, Andorra, Bahamas, Barbados, Brunei, Cambodia, Dominica, Grenada, Kiribati, Laos, Lithuania, Marshall

Islands, Micronesia, Myanmar, Nauru, North Korea, Oman, Papua New Guinea, Samoa, San Marino, Singapore, Solomon Islands, Tonga, Trinidad and Tobago, Tuvalu and Vanuatu.

Sources: David Boyd, the U.N. envoy on human rights and the environment; U.N. Human Rights Council

THE WASHINGTON POST

Many states have enshrined similar rights. The constitutions of Pennsylvania, Massachusetts, Hawaii and New York contain their own versions of Montana’s language. Florida’s constitution guarantees the right to “clean and healthy waters.” Virginia’s, like many others, requires that natural resources be preserved for its citizens. And movements are afoot in several other states to establish similar guarantees.

And beyond such explicit constitutional provisions, the ideas upheld in the Montana ruling echo across geographies and time. The idea that present and future generations have a right to a healthy and safe environment dates to 6th-century Rome. The public trust doctrine, articulated by Emperor Justinian I, implies that governments must act as trustees of vital natural resources, protecting them on behalf of future generations.

By the law of nature

these things are common to all mankind, the air, running water,

the sea and consequently

the shores of the sea.

Institutes of Justinian

~ A.D. 530

By the law of nature

these things are common to all mankind, the air, running water,

the sea and consequently the

shores of the sea.

Institutes of Justinian

~ A.D. 530

By the law of nature these things

are common to all mankind, the air,

running water, the sea and consequently

the shores of the sea.

Institutes of Justinian

~ A.D. 535

Variants of this doctrine appear in the Magna Carta, in U.S. case law and in other legal decisions worldwide. Citizens and judges can and should use it as the basis for lawsuits to compel their governments to aggressively cut fossil fuel emissions or prevent new polluting projects, says Mary Christina Wood, a legal scholar at the University of Oregon and the author of “Nature’s Trust: Environmental Law for a New Ecological Age.”

This is not to say lawsuits are the best way to make policy. In an ideal world, elected officials would act with sufficient speed and ambition to cut emissions and prevent climate disasters. But in many democracies, notably the United States, public support for climate protection is far more advanced than political action. This is primarily because the fossil fuel industry has lobbied aggressively and employed disinformation and campaign financing strategies to keep climate policies from passing. Courts, while hardly free from partisan interests, are not as vulnerable to industry influence.

By recognizing the rights of future generations, courts might even spur better policy on a range of long-term issues, not just climate but also education, genetic engineering, nuclear waste and artificial intelligence.

The people have a right

to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania’s

public natural resources are the common property of all the people, including generations

yet to come.

CONSTITUTION

OF PENNSYLVANIA

The people have a right

to clean air, pure water, and to

the preservation of the natural, scenic, historic and esthetic values

of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations

yet to come.

CONSTITUTION OF PENNSYLVANIA

The people have a right

to clean air, pure water, and to

the preservation of the natural, scenic,

historic and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come.

CONSTITUTION OF PENNSYLVANIA

Recent court decisions in the Netherlands, Pakistan and Colombia have also asserted the rights of young people and future generations to a safe planet. And the concept will soon be tested again in the United States. In a case set for trial next year, young climate activists in Hawaii are pushing to make their state’s transportation investments more climate-friendly. And a 2015 case against the U.S. federal government, also brought by young activists, was approved in June for trial.

All persons have the

right to: [...] Peace, calmness,

the enjoyment of leisure and free

time, as well as the right to enjoy

a balanced and adequate

environment for the development

of their lives.

CONSTITUTION OF PERU

All persons have the right

to: [...] Peace, calmness,

the enjoyment of leisure and free

time, as well as the right to enjoy

a balanced and adequate environment for the development

of their lives.

CONSTITUTION OF PERU

All persons have the right to:

[...] Peace, calmness, the enjoyment

of leisure and free time, as well as the

right to enjoy a balanced and adequate

environment for the development

of their lives.

CONSTITUTION OF PERU

This summer, it has become easier to imagine a future of deadly heat waves, devastating wildfires, warming seas and destructive storms. Climate tipping points are fast approaching, and the race is on to prevent irreversible damage.

It’s also worth imagining a time when people might finally persuade their governments to curb greenhouse gas emissions to protect people from floods and fires, as well as provide them safe air to breathe and water to drink. This future has just become a little more possible.