In August 2021, a Montana state district court made waves in atmospheric trust litigation by denying the state’s motion to dismiss a case brought by 16 youth plaintiffs. The case alleges, among other things, that Montana is violating the plaintiffs’ constitutional right to a clean and healthful environment by supporting a fossil-fuel driven energy system that is accelerating climate change. Of note was the court’s finding of justiciability, which plaintiffs in similar youth climate change lawsuits in nearly every other state have yet to successfully demonstrate. As such, Held v. Montana is a unicorn among climate change cases against a sovereign. The lethargic pace of climate change litigation compared to the urgent need for action indicates that practitioners in state courts might consider expanding the focus of their claims to one of the most important resources in mitigating climate change: forests.
Forests can be key players in decelerating the pace of climate change because they have the potential to sequester massive amounts of carbon. In the 2012 topic paper Forests and Carbon Storage, the U.S. Forest Service found that trees removed about 16 percent of carbon dioxide (CO2) released by human activities in the United States in 2011 alone. The security of this carbon sink, though, is deteriorating. In the past decade, forests in six western states have been emitting more CO2 than they sequestered, according to an American Forests study detailed in the 2019 Washington Post series, Gone in a Generation.
In Montana, for example, American Forests found that forests pulled a net 20 million tons of CO2 out of the air annually in the 1990s but have been releasing a net 20 million tons of CO2 annually since the 2010s. The experts at American Forests point to wildfires, beetle infestations, drought, human extraction and encroachment, and climate change as the cause of this reversal.
Forests have a direct ecological connection to traditional public trust resources and uses. Specifically, forests provide more than 50 percent of the nation’s and 65 percent of the West’s freshwater supply, according to a 2010 U.S. Forest Service report on watershed stewardship. High-elevation forests are particularly significant because they store vast quantities of snow in the winter that then melt into waterways during spring and summer. Forested watersheds also reduce storm runoff, stabilize streambanks, cycle nutrients, filter pollutants, and provide high-quality habitat. Beyond their ecological value, forested watersheds support food, energy, and industrial production; enable navigation; and provide recreation and cultural services. In fact, Congress recognized the relationship between forests and watershed health in the 1897 Organic Administration Act, 16 U.S.C. § 475, which declared that the primary purpose of national forests, in part, was to conserve waterflows. Thus, as forest health declines, so, too, does the health of the corresponding waters.
On state forest trust lands, where states have a fiduciary duty to manage the lands for the benefit of public education, forest preservation and enhancement elevates the lands’ economic value and provides sustainable revenue to public beneficiaries. Specifically, conservation projects can bolster revenue potential, ecosystem services, and multiple uses. Peter C. Culp, et al., State Trust Lands in the West: Fiduciary Duty in a Changing Landscape, Lincoln Inst. for Land and Pol’y, at 54–62 (2015) https://www.lincolninst.edu/sites/default/files/pubfiles/state-trust-lands-in-the-west-updated-full.pdf.
Given forests’ importance to climate change mitigation, compelling their ecologically sound management is critical, and the public trust doctrine can help achieve this objective. The public trust doctrine is essentially the principle that the government holds certain environmental resources in trust for its citizens and must protect and maintain these resources for the public’s benefit. In the United States, the public trust doctrine traditionally protects the public’s right to navigation, fishing, and commerce, and protects navigable waters from private alienation. States have expanded their public trust doctrines to varying degrees: California’s public trust protects wildlife and ecological values, whereas West Virginia’s strictly adheres to the traditional doctrine.
Cases seeking to protect forests under a public-trust theory must navigate the primary hurdle obstructing the progress of current atmospheric trust litigation: redressability. The argument for redressability in forest trust cases, however, is more straightforward and compelling than in pure atmospheric trust cases––while protecting the public’s interest in the atmosphere requires restrictions on private entities and other states, protecting the public’s interest in public forests may require courts only to compel states to amend land management plans to protect the trust corpus. Additionally, state land management plans and forest plans constitute reviewable final agency actions, thus avoiding potential Commerce Clause and separation-of-powers issues arising in atmospheric trust cases.
Courts cannot dictate specific strategies in management plans, as such an action likely would violate separation of powers based on the discretion afforded to agencies by their enabling and associated acts. Rather, state courts should review management plans to determine whether the agency satisfied a standard analogous to the federal courts’ “hard look” doctrine applicable to environmental-review claims under the National Environmental Policy Act (NEPA) and state equivalents. The hard look doctrine strikes a viable compromise because it leaves planning discretion to an agency while ensuring that the agency has adequately considered and disclosed the environmental impacts of agency action and that its decision is not arbitrary or capricious. The hard look doctrine does not mandate particular results, but rather prescribes a procedure for review. As such, the importation of the “hard look” standard, or some other doctrine similarly adapted to the needs of state courts, allows the courts to scrutinize natural resource management plans that address climate change without violating separation of powers and ruling on an unjusticiable issue.
The U.S. Court of Appeals for the Ninth Circuit has extensively applied the hard look doctrine in NEPA and other federal environmental law cases to gauge regulatory conformity by determining whether the agency’s evidence of compliance serve the governing statute’s purpose. See Loretta V. Chandler, Taking the ‘Hard Look’: 9 Circuit Review of Forest Service Actions under NEPA, NFMA, and NHPA, 4 Great Plains Nat. Resources J. 204, 205 (2000). Adopting this framework, courts deciding forest trust cases would determine whether a state’s plans for managing a forest comports with the established purpose of a state’s public trust, instead of prescribing their own tests or adopting those proposed by litigants. For instance, if a state permitted logging to mitigate wildfire risk, the court would evaluate whether the state gave a hard look at the effectiveness of logging in reducing wildfire risk and protecting the public’s interest in forests. Again, such a role for the courts is commonplace in NEPA and state “little NEPA” litigation and would not be a radical move by courts to “legislate from the bench,” as many courts hearing atmospheric trust cases have expressed reluctance at doing.
Pairing this judicial remedy with the compelling argument for the inclusion of forests as a public trust resource provides practitioners with another line of attack in the fight against government paralysis on climate change. The argument avoids many of the problems faced by atmospheric public trust litigation, does not compromise on the climatic and ecosystem impacts, and respects the roles that agencies and courts might play in addressing them.
