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Mont. L. Rev.


This article examines the need to resort to law and the legal process to address the risk posed by climate change to Montana and its people.

Part II provides a brief overview of global warming. Part III demonstrates how civil litigation can and should provide a meaningful role in addressing climate change. Part IV traces the origin of the public trust doctrine and how the U.S. Supreme Court and Montana Supreme Court have applied the doctrine in the past. Part V argues that principles underlying the public trust doctrine make it appropriate for the Montana courts to expand the doctrine to atmospheric water.

Part VI shows why Montana’s 1972 Constitution requires Montana courts to expand the public trust doctrine to protect Montana’s environment. Part VII outlines the current state of climate-change litigation in the U.S. and then in Part VIII the current state of climate-change litigation in Montana. Part IX previews the direction of climate-change litigation in Montana after the Montana Supreme Court’s denial of original jurisdiction in Barhaugh v. Montana. Part X concludes that Montana’s Constitution and public trust case law should play an integral role in disputes over the appropriate role of government in regulating greenhouse gas emissions and efforts to force major corporate emitters to reduce their emissions.