“ Despite the obvious fact that life or liberty cannot exist without functioning ecosystems , courts in the United States do not recognize any federal constitutional environmental rights , even to the extent that an environmental right might be deemed appurtenant to explicitly enshrined constitutional rights .”
In short , our democracy must somehow martial focus , purpose , and resources to address climate change ’ s long-term challenges to life and justice while enduring increasingly frequent and extreme climate-related events that take lives , exacerbate injustices , and put unprecedented strain on democracy and governance .
How and why does the constitutional status quo fail to meet the climate crisis ? It begins with constitutional design . The Constitution grants the Supreme Court and such lower courts , as Congress establishes , “ judicial authority .” Federal courts were thought to be the “ least dangerous branch ” and less prestigious appointments than , say , supreme courts in Virginia or New York — among the reasons some of the first appointed Supreme Court justices , John Jay and John Rutledge , quit the bench . But the import of judicial review was transformed in Marbury v . Madison when then-Chief Justice John Marshall famously declared that it is “ emphatically the duty of the Judicial Department to say what the law is ,” as it has done in more than 20,000 decisions since its inception in 1789 .
From its inception until June 2022 , the U . S . Supreme Court has had 116 justices . Yet very few have acknowledged that catastrophic climate change is happening and has been caused by humans . Even those justices who acknowledge climate change believe that Congress , not the courts , should address it .
The U . S . Constitution ’ s 4,543 all but ignore environmental concerns . It was crafted to address separation of powers , federalism , and civil liberties . There is an extensive taxonomy of the sources and limits to federal and state authority to reach climate change . Virtually nothing is uncontested , giving rich context to former Chief Justice John Marshall ’ s maxim that “ we must never forget that it is a constitution we are expounding .” But , forget it or not , the Constitution has failed the climate .
The Constitution presumes the existence of an environment capable of supporting a flourishing society but does not explicitly recognize or protect the environment . Indeed , it was historically uncertain whether the Constitution empowered the federal government to act to protect the environment at all . The textual silence of the Constitution with respect to the environment is mirrored by the judicial silence about how the environment supports other rights explicitly recognized in the Constitution .
Despite the obvious fact that life or liberty cannot exist without functioning ecosystems , courts in the United States do not recognize any federal constitutional environmental rights , even to the extent that an environmental right might be deemed appurtenant to explicitly enshrined constitutional rights .
The constitutions of many countries explicitly protect the environment , and in many others , the courts have interpreted nonenvironmental constitutional provisions to necessarily include environmental rights . That is not the case in the United States . The Constitution does not explicitly protect the environment , nor is the protection of the environment recognized as being required to protect other constitutional rights .
The absence of clear and broad constitutional authority to protect the environment — explicit in the Constitution ’ s text or understood by courts to reside within other enumerated powers — limits the scope of federal environmental law . One aspect of this limit is foundational . Finding constitutional authority on which to adopt our core federal environmental laws required judicial willingness and stretching of doctrine .
70 x The Trial Lawyer