The Public Trust Doctrine and the Montana Constitution as Legal Bases for Climate Change Litigation in Montana

Abstract:     
This article provides a brief overview of the scientific consensus that global warming is real and that humans have caused it, before outlining governments’ failure to address the problem. It demonstrates that civil litigation can and should provide a meaningful role in addressing climate change by analogizing climate-change litigation to tobacco and asbestos litigation. The article traces the origins of the public trust doctrine and how the United States Supreme Court and Montana Supreme Court have applied the doctrine in the past. The author argues that the principles underlying the public trust doctrine make it appropriate for Montana courts to expand the doctrine to atmospheric water. The article then expands on that concept by showing why Montana’s 1972 Constitution, and particularly its right to a clean and healthful environment, requires Montana courts to expand the public trust doctrine to the atmosphere to protect Montana’s environment. The article outlines both the current state of climate-change litigation in the United States, and the state of climate-change litigation in Montana then previews where climate-change litigation is headed in Montana after the Montana Supreme Court’s denial of original jurisdiction in Barhaugh v. Montana. This article concludes that Montana’s progressive Constitution and public trust caselaw should play an integral role in what two leading legal climate-change scholars describe as the overarching themes of climate-change litigation: “(1) disputes over the appropriate role of government in regulating greenhouse gas emissions and (2) efforts to force major corporate emitters to reduce their emissions.” William C. G. Burns & Hari M. Osofsky, Overview: The Exigencies That Drive Potential Causes of Action for Climate Change, in Adjudicating Climate Change: State, National, and International Approaches 20, 25-26 (William C. G. Burns & Hari. M. Osofsky eds., Cambridge U. Press 2009).

Number of Pages in PDF File: 38

Accepted Paper Series