What might the laws coming out of our great public awakening to modern environmental problems in the 1970s — the National Environmental Policy Act , the Clean Air Act , the Clean Water Act , and the Endangered Species Act — have looked like had they been adopted against a backdrop of clear and broad constitutional authority ?
The dearth of constitutional authority limits not just the structure of our core federal environmental statutes but also how they are interpreted and applied . Internalized understandings of the limits of what is constitutionally possible constrain our policymaking imagination when it is imperative that we bring about systemic , transformational change to respond effectively to today ’ s environmental challenges .
One side of the coin is the absence of clear and broad authority to protect the environment . In addition to failing to give the federal government clear power to protect the environment , the Constitution also fails to impose clear limits on the federal government ’ s power to harm the environment , let alone impose a duty on the government to prevent ecological damage .
The Constitution ’ s failure to identify limits on government harm to the environment compounds the lack of express power to act to protect the environment . The Constitution is ( at least as a matter of express text ) silent when it comes to protecting individuals from government destruction of the ecological necessities for a healthful life . And , unlike in the case of constitutional power to legislate on environmental matters , courts have been largely unwilling to read such limits into the Constitution .
To appreciate how constitutional silence on the environment contributes to constitutional hostility to environmental protection , it is important to recall that the Constitution affords other values — private property , speech , and states ’ rights — explicit recognition and protection . The constitutional omission of the environment thus diminishes the importance of environmental interests when considered relative to other interests explicitly protected by the Constitution . One-sided constitutional protection for private property , for example , hobbles adaptation policy by dissuading governments from restricting new development in climate-vulnerable locations out of fear of triggering an obligation to compensate private landowners .
Judicial interpretation could overcome the textual constitutional omission of the environment . For example , during the Progressive Era , scientists , attorneys , and politicians succeeded in persuading courts to interpret the Commerce Clause to give the federal government significant constitutional environmental authority .
There are many powerful arguments that — despite the lack of explicit text and a historical , doctrinal focus on the Commerce Clause — the Constitution can and should be understood to afford broader environmental powers and impose environmental limits and duties on the government . To date , however , courts have largely abdicated their institutional role in the development of climate policy .
The constitutional structure of our representative democracy thus creates an obstacle to mitigation . While courts withdraw from engaging on climate change policy , reasoning that it would be counter-majoritarian for judges to weigh in , the reality is that the political process that produces climate change policy is not , by design or in practice , majoritarian . In the context of climate change , the Senate and Electoral College resolutely skew against climate change mitigation , allowing a public and political minority to obstruct the adoption and implementation of robust mitigation law .
Moreover , it is not simply that courts decline to exercise their constitutional authority to engage with climate policy out of a mistaken belief that it would be “ undemocratic .” Courts affirmatively exacerbate the obstacle that our constitutional structure poses to adopting mitigation law through interpretations of the Constitution that limit voting rights ( thereby decreasing majority voice ) and elevate the rights of corporations ( thereby increasing corporate voice ).
Judicial interpretations of the Constitution help to produce , sustain , and afford veto power to the minority public and political block obstructing federal mitigation policy . Fossil fuel interests , gifted a First Amendment right by the Supreme Court to make effectively unlimited donations to political campaigns in Citizens United v . Federal Election Commission , orchestrated a well-documented and effective campaign to convince a relevant swath of the American public and their representatives — the group with a smaller population but greater representation through the Electoral College and Senate — that climate change is not real , not human-caused , not dangerous , and or / not imminent .
In lawsuits brought by plaintiffs against fossil fuel companies seeking to hold them accountable for their lies , the companies , without shame , respond that they have a right to lie under the First Amendment , especially if they lie to influence public policy .
The constitutional status quo , defined by a series of judicial interpretations and decisions , fails on climate because it fails more broadly on democracy . It neglects to protect fundamental rights like the right to vote while enshrining new rights for corporate interests .
The Constitution , as presently worded , interpreted , and applied , is obstructing the development of a robust societal response to climate change , partly by failing to protect healthy democratic processes and advance real social justice .
We could , of course , amend the Constitution to explicitly support the protection of the environment , better protect democratic processes , and advance social justice . We could also encourage new understandings of existing constitutional texts that recognize the fundamental value of and right to a healthy environment , more effectively support healthy democratic processes , and go further to advance social justice . Any new approach will require an open-eyed reckoning with how and why the constitutional status quo is failing to meet the climate moment .
The Trial Lawyer x 71