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.   

At the Climate Constitutionalism Conference, featured panelist Erin Ryan, Clyde W. Atkinson Professor and Associate Dean for Environmental Program, Florida State University College of Law, invited discussant Robert Percival, Robert F. Stanton Professor of Law and Director, Environmental Law Program, University of Maryland Francis King Carey School of Law, participants Jack Garvey, a law student at Widener Delaware Law, Sarah Kane, a law student at Widener Delaware Law, and Natalie Lara, a law student at Pace University considered the role of constitutions in achieving mitigation necessary to avoid climate catastrophe. The panel examined constitutional obstacles to and opportunities for climate mitigation. 

Charting the Course for Climate Constitutionalism  

The ensuing roundtable discussion wove a tapestry of intricate strategies charting a course through the complexities of constitutional law, judicial interpretation, and the pivotal role of societal engagement in shaping a robust environmental defense within the United States legal system. This article provides a synthesized overview of these discussions, delving into constitutional silences and opportunities, judicial interpretations and their implications, and innovative approaches to environmental legislation and education. 

The participants considered the potential of interpreting the Constitution as an ally in environmental defense. One focus was the leveraging of silent spaces within our foundational document to advocate for the environment, actively examining how amendments and legal concepts could implicitly safeguard our natural world. 

Alternatively considered were the practical applications and implications of legal frameworks such as the Takings Clause, the Public Trust Doctrine, the Commerce Clause, and the judicial interpretations of the Endangered Species Act. A thorough analysis was conducted to reinterpret and apply these provisions in ways that could enhance environmental protection measures. The conversation probed the possibilities for these legal principles to hold governmental entities accountable and protect our shared ecological resources for future generations. 

The participants examined innovative strategies to enhance the judiciary’s role in environmental law and the mobilization of youth for ecological advocacy. Such strategies included the critical issue of lifetime Supreme Court appointments and their impact on environmental jurisprudence and potentially expanding the number of Justices to ensure the Court’s impartiality. Furthermore, participants considered re-evaluating standing in environmental lawsuits, ensuring those affected by environmental damage have access to legal remedies. The discussion highlighted the power of financial mechanisms to influence environmental policy at the state level. Also discussed were educational initiatives to bridge partisan divides and foster an environmentally conscious youth, thereby entrusting the next generation with the tools to sustain their future. 

Unearthing Environmental Protections within Constitutional Silence  

The United States Constitution, a cornerstone of American governance, remains mute on the issue of environmental protection. This foundational silence presents a singular challenge, beckoning legal scholars and practitioners to probe its depths for implicit support for environmental rights.  The 9th Amendment, often seen as a catch-all provision could encompass the broad spectrum of rights not explicitly mentioned within the Constitution’s text, extending to the right to a clean and sustainable environment.  This Amendment could be a repository for unenumerated rights, a guardian of the silent issues that find no voice within the explicit constitutional narrative. 

Substantive due process, a legal concept embedded in the 14th Amendment, ensures that states must respect certain fundamental rights or provide a compelling justification for their interference. Extending protection to encompass environmental rights suggests that a healthy environment should be considered fundamental to life, liberty, and property. This would require states to justify actions that significantly harm the environment, potentially creating a legal obligation to prevent pollution and ecological destruction. 

Reimagining Constitutional Provisions for Environmental Stewardship 

The Takings Clause, part of the 5th Amendment, is traditionally concerned with preventing the government from taking private property for public use without just compensation. The interpretation of environmental degradation, as caused by governmental action or inaction, is a ‘taking’ of public or private property, manifested in the diminution of property values due to pollution or the loss of use of natural resources. Such an interpretation could compel the government to act more responsibly towards the environment, lest it be required to compensate those harmed by its failures. 

The Public Trust Doctrine, tracing back to ancient Rome and embedded within common law, rests on the belief that certain natural resources—our air, water, and lands—are common to everyone. As such, the government must act as a trustee, protecting these resources against misuse for the benefit of current and future generations. The doctrine’s resurgence is evidenced by its principles being enshrined in modern environmental law and state constitutions, symbolizing its unyielding relevance. At the same time, there exists a tension: codifying these principles could lend weight and clarity but might also calcify a doctrine that needs the elasticity to evolve with our ever-changing relationship with the natural world. 

The discourse then delved into the Commerce Clause, an enumerated power given to Congress to regulate trade and commerce among the several states. It has been instrumental in enacting broad federal environmental regulations, from the Clean Air Act to the Clean Water Act, under the premise that pollution does not respect state boundaries and thus falls under interstate commerce. Despite its pivotal role, the Commerce Clause has its limitations and critiques that question whether the clause is an adequate foundation for a comprehensive environmental policy. 

The Endangered Species Act (ESA), a keystone of conservation efforts, was examined in the context of its judicial interpretation. While the ESA intends to protect species from the brink of extinction, its strength is contingent upon the judiciary’s interpretation. This makes the ESA fragile, but with a judiciary sympathetic to the ESA’s objectives, its enforcement can be significantly more robust, rendering its noble goals met. 

Rebalancing the Bench and Empowering Youth for Environmental Progress 

A critical issue is the influence of lifetime appointments on the Supreme Court’s independence, as appointments influenced by previous political agendas could result in a bench predisposed towards a particular environmental philosophy, potentially for decades. To restore the Court’s independence and ensure its decisions remain unbiased and timely, adding Justices to the Court would counteract one-sided decisions and create a more balanced bench. Increasing the number of Justices on the Supreme Court from 9 to 13 would mitigate the effects of past political appointments and facilitate more equitable outcomes. 

The roundtable proposed a novel approach to judicial proceedings, where less experienced Justices could hear initial cases while their more seasoned counterparts could provide final judgments. This system would bring a richer diversity of perspectives and depth of analysis to environmental case law, potentially enhancing the judiciary’s ability to handle complex environmental litigation. 

Furthermore, manufactured standing is a pivotal factor in environmental legal challenges. Manufactured standing refers to the criteria determining whether an individual or group has the right to bring a lawsuit based on their stake in the outcome. There was a call for a re-examination of standing in environmental cases to ensure that those affected by environmental harm have the legal recourse to seek justice. 

Next considered was the “power of the purse” to enact environmental legislation. Financial incentives and penalties could act as powerful tools for shaping state-level environmental policy. In the 2012 United States Supreme Court case National Federation of Independent Business v. Sebelius, the Court affirmed the government’s capacity to use its taxing and spending power to encourage states to implement federally favored policies. This approach could be critical for advancing state compliance with environmental standards. 

Transcending partisanship through education would confront the polarization of environmental law. Integrating non-partisan environmental topics into school curricula could cultivate an ethos of environmental stewardship beyond political divides.  Gardening, the arts, and other engaging subjects could become fertile soil from which a unified understanding and appreciation of environmental issues could grow. 

Youth advocacy is heralded as the new frontier of environmental activism, emphasizing the need for legal frameworks that empower young people to champion their right to a sustainable future. The significance of cases and amicus briefs brought by the youth spotlight the imperative for legal frameworks to empower this demographic to champion sustainable futures. It was a potent reminder that the current generation is responsible for securing an ecological legacy for those who will inherit the planet. 

Securing Our Climate’s Future Through Unified Action  

The roundtable’s insights coalesce into a call to action—a mandate for policymakers, legal experts, and engaged citizens to unite in crafting a sustainable future. This blueprint for action encompasses constitutional interpretation, judicial innovation, fiscal strategy, and educational outreach, charting a course for a world where ecological balance is not just an ideal, but a tangible reality secured by the strength of our legal system and commitments.