Is There a Constitutional Right to a Survivable Climate?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Nov 7, 2019

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The Declaration of Independence asserts that certain rights are unalienable, including life, liberty, and the pursuit of happiness. The Bill of Rights provides substantive and procedural protections that give teeth to those promised rights. But while the Bill of Rights protects against arbitrary deprivations of life and liberty, it offers no clear protection of the quality of life and says nothing about the pursuit of happiness.

Whether those unalienable rights actually enjoy constitutional protection is a question raised by almost two dozen kids who sued the United States government for failing to protect them from the consequences of climate change. The lawsuit has called attention to the potential power of the court system to provide fundamental protections for human rights that many of our elected representatives deem unworthy of meaningful attention.

Climate Change Lawsuit

As FreeAdvice reported in 2015, teens and preteens, with the assistance of nonprofit organizations, have filed lawsuits challenging the government’s failure to protect them from climate change. They argue that certain natural resources belong to everyone and that the government has a legal obligation to act as a responsible steward when it manages those resources.

The warming climate affects ocean levels, air quality, water quality, agriculture, and health. Extreme weather events, including hurricanes, droughts, and wildfires, are linked to global warming.

Despite a vigorous campaign to deny its impact on climate change, the fossil fuel industry contributes to global warming. The industry also contributes money to the election campaigns of politicians who refuse to acknowledge the threat posed to the public by climate change.

Americans who worry about the adverse consequences of global warming find little support in the current Executive Branch or the Senate majority. Reputable scientists have, in fact, resigned their government positions because their warnings about the damage caused by climate change have been suppressed or underplayed.

Frustrated by the unwillingness of the political branches of government to protect them from harm, children who worry about their futures have turned to the judicial branch. Their attempt to force change has been opposed by the administration, but the litigation is still alive.

Languishing Lawsuit

An American court usually has no jurisdiction over the actions of other countries or foreign corporations that do business outside the United States. To the extent that other countries contribute to the global warming crisis — and nearly every industrialized country does — there is little that American courts can do.

Most other countries are participating in the Paris Agreement, a plan to reduce the carbon emissions that hasten global warming. Unfortunately, none of those countries have met their targets for reducing carbon emissions.

In 2017, the United States announced its intent to withdraw from the Paris Agreement. Yet the United States leads China, Russia, and all other industrialized nations in carbon emissions. The lawsuit’s focus on America’s impact on climate change could therefore make a significant contribution to the public good.

Experts debate whether it is already too late to avert catastrophe, but the kids who brought the lawsuit have an ambitious agenda. While the federal government has elected to put corporate profits ahead of public health, the lawsuit asks the court to order the government to take meaningful steps to reduce carbon admission.

Potential Remedies

One request for relief asks for an injunction against leasing public lands for coal mining and oil drilling. Another seeks an injunction against federal subsidies for the fossil fuel industry.

The court might order lesser relief, by (for example) requiring the government to develop a plan to reduce carbon emissions less drastically than the kids desire. Assuming the hypothetical order survived years of appeals, there is no certainty that the government would not drag its feet about complying. There is very little that courts can (or are willing to) do when the other branches of government resist court orders.

The court might also do nothing at all. It is encouraging that the lawsuit is still alive after four years of litigation — notwithstanding efforts by both the Obama and the Trump Administration to kill it — but there is no guarantee that the courts will ultimately agree that the right to life, liberty, and property incorporates a right to a stable climate.

Even if the courts find that the government has violated the rights of children by failing to manage public resources responsibly, the courts might decide that they are powerless to order a remedy. The Supreme Court’s recently refused to order a remedy for partisan gerrymandering because the majority concluded that elected representatives, not judges, should tackle the problem. That same judicial philosophy might persuade courts that the executive and legislative branches, not the courts, should decide climate policy.

The kids are making a valiant effort, but the clock is ticking. In the end, it may be up to voters to educate themselves about the reality of global warming and to elect representatives who are willing to take meaningful action to protect the planet. It may be in the hands of young people, when they reach voting age, to cast those votes.

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