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

27 Pages Posted: 9 Nov 2020 Last revised: 13 Sep 2021

See all articles by James R. May

James R. May

Washburn University - Washburn University School of Law; Widener University Delaware Law School; Haub School of Law at Pace University

Erin Daly

Widener University Delaware Law School

Date Written: July 1, 2021

Abstract

Much scholarship about the climate crisis commences with the Four Horsemen of the Apocalypse entering stage right, making the case for action (and causes of action) in the face of catastrophe. Hurricanes and fires of unprecedented force. Planet-wide water and food scarcity. Social and political unrest. Enough said, literally. Suffice to say that an unstable climate makes everything harder: work, school, food, water, shelter, travel, relationships, protecting and promoting the rule of law, social justice, equality and dignity. How do we justify shifting so much suffering to our children, to future generations? But to whom and to where can legal educators, practitioners and problem solvers turn? How about the U.S. Constitution? How about the courts? Do they lend a voice, a hand? Well, they can.

Three reasons. First, the Constitution is relevant to the protection of people’s lives and liberties – a position that should be beyond cavil after 231 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 the constitutional rights of the people. This article argues simply that Kelsey Juliana’s claim is legitimate and that the federal judiciary should be available to hear it.

Following an overview of Juliana v. U.S., this article assesses these points before pivoting back to the 9th Circuit’s application of them in Juliana (currently awaiting disposition of a petition for review en banc). In sum, we conclude that the federal judiciary should not shirk constitutional responsibilities to hear cases invoking a right to a stable climate.

Keywords: Climate Change, Constitution, Due Process Clause, Stable Climate, Litigation

JEL Classification: K23

Suggested Citation

May, James and Daly, Erin, Can the U.S. Constitution Accommodate a Right to a Stable Climate? (Yes, it Can.) (July 1, 2021). 39 UCLA Journal of Environmental Law & Policy 39 (2021), Available at SSRN: https://ssrn.com/abstract=3716620

James May (Contact Author)

Washburn University - Washburn University School of Law ( email )

1700 SW College Ave.
Topeka, KS 66621
United States

Widener University Delaware Law School ( email )

4601 Concord Pike
Wilmington, DE 19803-0406
United States

Haub School of Law at Pace University ( email )

78 N. Broadway
White Plains, NY 10603
United States

Erin Daly

Widener University Delaware Law School ( email )

4601 Concord Pike
Wilmington, DE 19803-0406
United States
302-477-2143 (Phone)
304-477-2257 (Fax)

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