Can the U.S. Constitution Encompass a Right to a Stable Climate? (Yes, it Can.)

Abstract

Can the U.S. Constitution encompass a right to a stable climate?  Courts around the world are finding that their constitutions afford a right to a clean and healthy environment, including to a safe climate.  In the United States, this claim is being tested in the case of Juliana v. U.S., brought by 21 children arguing that governmental actions and inaction have caused or contributed to an “environmental apocalypse” in violation of a fundamental constitutional right to a stable climate.  In concluding that the Constitution can encompass a right to a stable climate, we make three principal arguments.  First, 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.  Second, the Constitution’s protection is not abrogated simply because the threat to life and liberty comes from decades of governmental action contributing to climate change.  The Constitution does not have a climate change, or even an environmental, exception.  And third, the federal judiciary is the body that, in our constitutional system, is best suited to hold accountable government actors when they imperil constitutional rights.  Five years after it was filed, the case was dismissed by the Ninth Circuit; as of this writing, plaintiffs are considering seeking review before the U.S. Supreme Court, and settlement with the Biden Administration.