The following article, written by student reporters, is part of a series of reflections from the Climate Constitutionalism Conference, hosted by Elisabeth Haub School of Law at Pace University and Widener University Delaware Law School, and co-chaired by Distinguished Professor Katy Kuh (Haub Law) and Distinguished Professor James R. May (Delaware Law), on March 29, 2024. The event brought together legal scholars, activists, and students for a series of discussions on major environmental constitutional issues. Visit the GreenLaw homepage for links to other articles in the series.

As student reporters for the Climate Constitutionalism Conference, the authors had the opportunity to moderate a roundtable discussion between Professor David Driesen from Syracuse University College of Law, discussant Professor Michael Herz from Cardozo School of Law, who were also joined by Professor Katrina Kuh from Elisabeth Haub School of Law at Pace University. The conversation centered around two main concepts: First, the separation of powers doctrine and the potential hurdles it creates to some environmental and climate regulation; second, what elements created a “hard case” for environmental lawyers to win, versus what makes an “easy” case.

  1. Separation of Powers

In his remarks as a panelist, Professor Driesen emphasized the role of the Supreme Court as the land’s current greatest policy decision-maker, having handed down several recent decisions relating to legislative intent and administrative powers. During the subsequent roundtable, the panelists reacted to concerns over the political tilt of the Court. Overall, though, the panelists seemed more interested in the public’s reaction to the Court’s apparent politically motivated decisions rather than to changes in the Court’s composition. For example, there appeared to be agreement that, in general, the party most in favor of active judicial limits on executive action was the party currently out of office. The same could be said of individual states, where there is an apparent ideological divide between which states pursue climate claims and which do not. Presently, more liberal states appear to be hesitating to bring such claims, perhaps due to skepticism toward their prospects should it reach the Supreme Court.

Regarding the politicization of climate policy and litigation, the general agreement among panelists was the need to emphasize strong democratic institutions as the basis for strong environmental law. For example, polling indicates voters are more in favor of advancing climate legislation than their state legislatures or representatives are of bringing it. This indicates that more responsive democratic processes and chances for citizen participation may be key to realizing climate policy goals. State constitutions and local laws may be the most effective avenue for effectuating such policy, considering how much simpler they are to amend than federal law. However, even these more localized laws face challenges like preemption. Preemption (or “preclusion”)—a doctrine by which state laws that conflict with federal laws are invalidated—is often the first and largest hurdle when bringing a claim of state constitutional violation. Even outside of judicial claims, federal climate policy can preempt states from taking similar actions.

Adding to these challenges is the adoption by the Supreme Court of the “Major Questions Doctrine” in the 2022 case West Virginia v. EPA. This doctrine is a major modern tool for opponents of climate policy or expansive administration action in general, allowing the Court to overturn agency-created policy if it touches issues of major political or economic significance and was not explicitly delegated to the agency by Congress. On its face, this appears to be a fairly safe doctrine meant to prevent the overreach of non-elected officials. However, as applied by the Court, the Major Questions Doctrine has been extended to several cases that stretch what is considered a “novel case,” using the concepts of downstream commerce or freedom of speech to apply the doctrine and label any number of actions as implicating Major Questions. Adding to this constriction of avenues for environmental regulation is the rights of corporations to engage in political speech, following the 2010 decision Citizens United v. Federal Election Commission. Corporations can now tie the Major Questions Doctrine into their own claims against regulating agencies by invoking the First Amendment free speech rights enunciated in that case and then claiming the regulation in question would harm those rights. Additionally, the panelists discussed the future of the Chevron doctrine, a longstanding approach to interpreting administrative decisions that permits executive agencies like the EPA to make reasonable interpretations on congressional ambiguities.  often subject to challenge by groups who oppose environmental regulations as overreach.[1]

  1. Easy Cases and Hard Cases

According to the panelists, the difference between climate cases that are likely to win and cases that are not hinges on what type of relief the plaintiffs request. Those who ask the court for injunctive relief or some kind of simple damages are far more likely to be granted relief than those who ask the court to take action by ordering performance or creating a new policy. Put simply, courts are more willing to ask the government to stop doing something than to start doing something—a daunting burden for environmentalists who recognize a limited window for substantial relief. American courts are traditionally hesitant to tell individuals what must be done with their property. Likewise, American citizens (including, under Citizens United, corporations) are equally against being told what they must do. As a result, most climate cases that find relief, fall under a small set of constitutional tools, particularly the Commerce Clause (Article I, Sec. 8, Cl. 3), which grants the government wide latitude to regulate activities that affect the economy.

  1. Future Perspectives for Climate Claims

During the question and answer portion, the panelists discussed alternatives that might be available as challenges to commercial regulation meant to counter Commerce Clause obstacles like preclusion or the defense of free speech. For example, the Property Clause (Art. IV, Sec. 3, Cl. 2) grants complete power to the government to manage federal land and airspace, but imposes no duties or guidelines as to what those powers ought to look like, and thus it would be very hard to bring a claim arguing a violation of the Property Clause. As such, there are few prospects with which to use the clause as a basis to challenge climate harming federal land uses like fracking and natural gas licenses or managing pollutants in airspace. However, there could be future potential to use the Property Clause, if accompanied by the public trust doctrine or the adoption of a “green” amendment, stating a duty to protect the air, land, and natural resources. When a participant raised the prospect of using the Ninth Amendment—which enshrines certain rights of the people even where those rights are not enumerated in the Constitution— the panelists noted that while there is no obvious reason not to use it, too little is understood about how the amendment might be interpreted to state it as the basis of a claim. This discussion led another panelist to joke that the only truly inviolable unenumerated fundamental right is the right to drive a car.

The most efficient means of using the constitution to fight climate change, the panelists agreed, is turn to pushing for desired policy in congresses, local governments, and state constitutions. This agreement was less political than it was pragmatic: A proactive legislature could choose to recognize or protect a right to a stable climate, while even a willing court needs the correct case facts, a plaintiff with standing, and a winning argument.

III. Conclusion

Climate litigators are optimists by trade, but they recognize that contending with a conservative judiciary and the legal power of major carbon producers tends to stack the odds against their clients, who are often among the most vulnerable populations affected by climate change. These litigators believe that, despite this, the right to a stable climate can be afforded under the Constitution– perhaps by appealing to Americans’ self-interest in their property or through a new generation of legislators, executives, or judges. The panelists emphasized that the key to effectuating change under the right to a stable climate is to have environmentally conscious lawyers learn strong constitutional skills and use those skills to find creative solutions for our biggest environmental problems.

[1] As of the time of the Conference and the writing of this report, the Chevron doctrine is potentially under review before the court in Loper Bright Enterprises v. Raimondo, a case over whether silence constitutes an ambiguity deserving of Chevron deference.