Climate change litigation has sound footing in law

2011-06-14T08:15:00Z Climate change litigation has sound footing in lawGuest column by MICHAEL BLUMM and JACK TUHOLSKE

In a guest editorial on May 31, Jim Huffman describes the climate change lawsuit recently filed at the Montana Supreme Court as "implausible" and "audacious." Actually, the suit has a sound legal basis in Montana law. If the suit is audacious, it is of necessity, since the health and lives of our children are at stake.

We can all agree that defense and security are among the core protections government must provide its citizens. The world's climate scientists warn that the biggest threat to the safety and security of our children is global warming. Yet our governments have abdicated responsibility to remedy the annual dumping of billions of tons of carbon and methane into the thin layer of atmosphere that is the life support system for our children and grandchildren. These gases will remain for hundreds of years, trapping heat and presenting enormous risk to our children.

Last month, a group of unpaid Montana lawyers asked the court to declare that governments at all levels hold the atmosphere in trust for its citizens and owe a fiduciary duty to protect it. Huffman claims that the Montana Supreme Court should have summarily dismissed the action, but he ignores the first "inalienable right" in the Montana Constitution, "the right to a clean and healthful environment":

The Montana Constitution directs the Legislature to provide adequate remedies to protect "the environmental life support system from degradation... and to prevent unreasonable depletion and degradation of natural resources" for present and future generations. The drafters of the constitution intended the term "environmental life support system" to include air, water, and land.

Huffman's claim that there is no law underpinning the suit is erroneous. The Montana Supreme Court cases that Huffman ignores, including a 1999 decision that declared environmental protection as a fundamental right, also impose an affirmative obligation on the Legislature to maintain a clean and healthful environment.

When the Legislature failed to maintain public school funding at levels required by the constitution, the Montana Supreme Court ordered the constitutionally required funding in 2003. The court confirmed that "provisions that directly implicate rights guaranteed to individuals under our Constitution are in a category of their own giving the courts, as final interpreters of the constitution the obligation to guard, enforce, and protect every right granted or secured by the Constitution." The court also voided as unconstitutional a law that violated the state's obligations over school education trust lands. Huffman's assertion that the court has no jurisdiction when the Legislature abdicates a constitutional responsibility is dead wrong.

The public trust doctrine recognizes that the government acts as trustee to protect critical resources from being depleted by private interests or from those who govern to the detriment of future generations. In 1984, the Montana Supreme Court used the doctrine to recognize the public's right to use the waters and streambed of rivers flowing through private property. The court traced the public trust doctrine "from Roman Law through Magna Carta to present day decisions," belying Huffman's claim that the doctrine is ahistorical.

The court reaffirmed the public trust doctrine three years later, saying that "The public trust doctrine is found at Article IX, Section 3(3), of the Montana Constitution which provides: All surface, underground, flood and atmospheric waters within the boundaries of the state are the property of the state for the use of its people and subject appropriation for beneficial uses as provided by law." In 2008, the court again embraced the doctrine, ruling that it provided the public with "an in-stream, non-diversionary right to the recreational use of the State's navigable surface waters."

The public trust doctrine has been repeatedly recognized by the Montana Supreme Court for the more than a quarter-century and, in light of the constitution's protection of the "the entire life support system," it hardly seems "audacious" to extend the doctrine's reach from rivers and lakes to the atmosphere. Since the doctrine has been used for over a century throughout the U.S. to protect the public's interest in water, it is neither "implausible" nor a "leap" for the court to require the government to fulfill its duty to protect the atmosphere as a public asset upon which our lives depend.

Michael Blumm is the Jeffrey Bain Faculty Scholar and professor of law at Lewis and Clark Law School in Portland, Oregon. Jack Tuholske is a lawyer and an adjunct law professor at Vermont Law School and University of Montana School of Law.


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