As legislative efforts to limit fossil fuel consumption falter, environmental activists have turned to the courts with increasing frequency and ever-more-expansive legal theories. Some of this litigation relies upon state tort law. Other suits rely upon more innovative arguments.
Several groups have pressed constitutional arguments that the failure to control various forms of pollution violate federal or state constitutional rights. Such arguments have gone nowhere in federal courts (and with good reason), but some have succeeded at the state level. Most notably, the Montana Supreme Court concluded that state citizens have a judicially enforceable right to environmental protection that constrains state-level environmental policies.
In 2023, a group of environmental activists represented by the Center for Biological Diversity filed suit in New Mexico arguing that the state constitution requires greater regulation of the oil and gas industry within the state and the suspension of new oil and gas well permits until the state complied with its constitutional obligations. The suit relied upon a state constitutional provision which provides:
