Can the U.S. Constitution Encompass a Right to a Stable Climate?

AuthorMay, James R.
PositionYes, it Can.

Table of Contents Introduction I. Federal Courts have the Authority to Consider Constitutional Claims Involving the Climate II. The Due Process Clause Can Encompass a Right to a Stable Climate A. The Right to a Stable Climate is Deeply Rooted in the Nation's History B. A Stable Climate is Essential to Ordered Liberty III. The Right to a Stable Climate is Justiciable A. Constitutional Rights are Not Political Questions B. Constitutional Standards are Judicially Discoverable and Manageable IV. Case Study: The Juliana v. U.S. Case Conclusion Introduction

Federal courts too often have been cautious and overly deferential in the arena of environmental law, and the world has suffered for it.

--Juliana v. U.S. (D. Or. 2016) (Aiken, J.)

"My colleagues throw up their hands, concluding that this case presents nothing fit for the Judiciary.... [A] federal court need not manage all the delicate foreign relations and regulatory minutiae implicated by climate change to offer real relief, and the mere fact that this suit cannot alone halt climate change does not mean that it presents no claim suitable for judicial resolution."

--Juliana v. U.S. (9th Cir. 2020) (Staton, J., dissenting)

The climate crisis engenders visions of the Four Horsemen of the Apocalypse entering stage right, making the case for action--and causes of action--in the face of catastrophe. Climate change is raising global temperatures, heating oceans, melting glaciers and ice caps, and wreaking havoc on weather patterns. (1) Suffice it to say that an unstable climate disrupts most aspects of day-to-day life, including family, food, water, employment, education, and shelter, and the pursuit of equality, dignity, justice, peace and happiness. Climate change also increases human vulnerability to poverty and disease, which in turn creates opportunities for political oppression and myriad other forms of human rights abuses--all of which disproportionately threaten the lives and health and dignity of future generations. Climate change may well turn entire populations into refugees, raising human rights challenges at national and international levels.

What to do. Unfortunately, international action hasn't made much of a dent in global carbon output, and well-intentioned international efforts from the Paris Climate Accord (2) to Sustainable Development Goal 13 (climate action) (3) have lent little if any relief to those most affected. Thus, courts are increasingly being pressed to consider rights-based climate-based claims, including in Norway, (4) the Netherlands, (5) Pakistan, (6) Colombia, (7) France, (8) and elsewhere. (9) Moreover, the Philippine Human Rights Commission is considering whether "carbon majors" have violated domestic human rights law, (10) and the Committee On The Rights Of The Child whether "[t]he climate crisis is a children's rights crisis ... [so that] [m]itigating climate change is a human rights imperative." (11) And in an asylum case, the United Nations Human Rights Committee determined that climate change could "become incompatible with the right to life with dignity before the risk is realized." (12) These rights-based cases are only illustrative of similar cases in domestic and supra-national tribunals worldwide. (13)

Thus, it's fair to say that rights-based approaches to addressing the climate crisis are finding footholds in courts around the globe. But not so much in the United States, owing to a conservative tradition of judicial deference if not diffidence on environmental issues. (14) And recent appointments to the U.S. Supreme Court hardly suggest a warmer welcome of climate-based rights claims. (15) Yet one case in particular continues to push precedent: Juliana v. U.S., in which children are arguing that the U.S. government's actions and inactions have caused or contributed to the climate crisis in violation of a fundamental constitutional right to a stable climate. (16)

The Juliana plaintiffs asked a federal court to do three things. First, to recognize that constitutional liberty includes a right to climate capable of sustaining human life. Second, to declare that the federal government has violated this right by decades of administrative policies and programs including subsidies, taxes, and other favorable economic advantages that have promoted the use of fossil fuels. And third, to require the government to cease violating the plaintiffs' rights by developing and implementing a plan to reduce climate threats. This may sound complex but, as pleaded, it was in fact an ordinary case: plaintiffs ask the court to define the contours of a constitutional right, to find a violation, and then to issue a remedy to redress the violation. This is what courts do. In response, the U.S. government argues no such right exists, and even if it does that federal courts can't do anything about it.

We contend that the U.S. Constitution can encompass such a right. Three caveats should be recognized from the outset. First, the point here is not that the Constitution necessarily protects people from climate change, but that courts should be open to deciding whether it does. Second, and relatedly, we do not argue that bringing such constitutional claims in federal court is the best or only way to address climate change. Of course, legislative action at the international, regional, national and subnational levels is preferable, with enforceable emission limits and/or workable market-based mechanisms, with mitigation and relief available to the most vulnerable first. Last, we do not here address related issues, such as the role of the Equal Protection Clause, (17) preemption, (18) civil litigation, (19) the Clean Air Act, (20) or the standing doctrine (21) (except to the extent it involves the political question doctrine, (22) which we do address), in the climate context. The argument here is simply that once a court has found that a constitutional claim has been properly put forth, the judicial department should hear it.

The Constitution is relevant to the protection of people's lives and liberties--a position that should be beyond cavil after more than 230 years of our constitutional experiment. And the federal judiciary is the body that, in our constitutional system, is best suited to hold accountable government actors when they imperil the constitutional rights of the people. Moreover, the Constitution does not have a climate change, or even an environmental, exception, any more than it has a COVID-19 exception. (23) Hence, we inquire as to whether the United States Constitution can encompass a right to a stable climate. We believe it can (and should) for three reasons addressed in the Parts that follow. First, federal courts should not shirk their constitutional obligations when presented with novel or controversial claims. Second, a right to a stable climate can be a constitutionally cognizable cause of action under the Due Process Clause because such a right is arguably both deeply rooted in American legal history and essential to ordered liberty. Third, climate claims are justiciable because the political question doctrine does not apply to individual constitutional rights, and even if it does, well-established judicially discoverable and manageable constitutional standards exist to evaluate such claims. As a case in point, we turn to Juliana v. U.S. in concluding that the U.S. Constitution can encompass a claim based on a right to a healthy climate and that the federal judiciary should be available to hear it.

  1. Federal Courts have the Authority to Consider Constitutional Claims Involving the Climate

    A claim based on a due process right to a stable climate is within judicial cognizance. To determine the constitutional merits of such claims through trial is the core function of the federal judiciary. Federal courts should be permitted to perform their constitutional functions to manage a case "preservative of [other] rights," (24) including developing a record, issuing rulings, and reaching a decision, as they would in any other constitutional case. The Supreme Court has held that "where the complaint ... is so drawn as to seek recovery directly under the Constitution ... the federal court ... must entertain the suit ..." and that "the court must assume jurisdiction to decide whether the allegations state a cause of action on which the court can grant relief, as well as to determine issues of fact arising in the controversy." (25) This follows from the mandatory language of Article III, which establishes that the federal judicial power shall extend to all cases or controversies arising under the federal Constitution (among other things). (26) Moreover, a judicial audience is especially necessary where the plaintiffs have no alternative for redress for reasons both factual (the government has proven unwilling to curb its appetite for fossil fuels) and legal (plaintiffs are denied the right to vote due to their age). (27)

    There is little question that federal courts can handle the constitutional claims presented to it under the Due Process clauses. For more than 230 years, they have been deciding constitutional claims. Some of these claims were novel (28); some asked the courts to extend the understanding of an established constitutional principle (29); some asked the courts to apply constitutional rights to new situations (30) or to recognize for the values which, though not express, have always undergirded our constitutional system (31); and some asked the courts to harmonize U.S. law with the law in other democratic countries. (32) Courts have resolved even the most contentious and profound questions, including the constitutionality of slavery (33) and the constitutionality of discrimination and affirmative action in a series of cases spanning more than 50 years. (34) In all of these cases, regardless of the novelty of the claims, the complexity of the issues, the importance of the case, or the social or political...

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