The following article, written by Lindsay Matheos and Steven Villegas, 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.
Introduction
On March 29, 2024, scholars, practitioners, students, and policymakers convened at the Climate Constitutionalism Conference at Pace University to consider the role of constitutions in achieving the mitigation necessary to avoid climate catastrophe. The conversation focused on constitutional obstacles that hinder climate mitigation and, in turn, what opportunities are available to address these conflicts. Over lunch, the conference attendees participated in roundtable discussions. Student reporters Lindsay Matheos and Steven Villegas prepared the following summary of the roundtable discussion featuring panelist Quinn Yeargain, Assistant Professor of Law at Widener University Commonwealth Law School, and invited discussant Katharine Young, Assistant Dean for Faculty and Global Programs, Professor, and Dean’s Distinguished Scholar at Boston College Law School.
In the morning panel on state constitutions and climate change, Professor Yeargain offered a cautionary view of climate constitutionalism. The roundtable ruminated on this view throughout the discussion and considered how state constitutions should incorporate environmentalism given the tremendous power of judges, time and resource limitations, and democracy and the effects of polarization.
The Dangers of Juristocracy
Among all international constitutions, the United States Constitution is arguably the most difficult to amend. Amending the Constitution as a means of addressing climate change is near impossible considering the fractured state of federal politics. Broad bipartisan agreement is increasingly hard to come by and this barrier leaves the States the burden of taking meaningful steps towards decarbonization.
State constitutions may play a crucial role in advancing environmental advocacy, but the form of this constitutional advocacy is a subject of debate. Some states, including New York, have gone the route of enacting “green amendments,” which grant the public the right to a healthful environment. Broad environmental rights amendments may certainly have rhetorical value, encouraging dialogue about environmental rights and galvanizing public support that may drive concrete policymaking and standard-setting. However, scholars have criticized green amendments like New York’s for their vagueness. Broad amendments like New York’s will ultimately be interpreted by judges through litigation, which can lead to unfavorable narrowing or weaponization of what are intended to be sweeping and environmentally beneficial amendments. As a preventative measure, green amendments should be carefully crafted at their outset, with specific standards and benchmarks, in a manner that leaves little room for judicial interpretation.
In rebuttal, some scholars expressed concerns that such a detailed approach to crafting environmental amendments may result in provisions that are too narrow. However, this approach is more likely to inevitably produce discrete policy outcomes, which a broad environmental rights amendment may not. Furthermore, limited judicial interpretation may present opportunities. For example, while a constitutionally enshrined renewable energy standard is not expressly an environmental right, it may be coupled with other constitutional obligations of the state, such as those requiring states to conserve natural resources, to fashion something akin to an environmental right. A state court’s holistic interpretation of the state constitution could therefore result in unique judicial outcomes.
Time and Resource Constraints
Additionally, broad environmental rights amendments may not be well suited for achieving meaningful environmental outcomes due to a variety of limitations. Given the rapid and ever-accelerating timeline of an irreversible climate catastrophe, climate change measures must be swift and bold. The environment does not have time for a typical sociopolitical galvanization process that may or may not lead to standard-setting legislation. Take, for example, Brown v. Board of Education, 347 U.S. 483 (1954), which struck down racial segregation in schools. Even with a unanimous decision from the nation’s highest court, the actual implementation of desegregation was slow to follow; decades of white resistance hindered nationwide integration. Even without a clear consensus of what Brown achieved for racial equality (with some scholars more skeptical than others about its short-term and long-term benefits and some emphasizing counterproductive and unintended consequences), Brown illustrates the pitfalls of reliance on the judicial system. In the context of climate change and decarbonization, we simply do not have the time to wait for judicial processes to play out.
In addition to temporal limitations, climate activists also face resource limitations. Enacting green amendments requires a massive amount of political power and organization in an era of increasingly limited voter attention spans. Realistically, given these constraints, activists only have one shot at proposing an environmental amendment, so this shot must count. Rather than focusing efforts on passing a broad and vague green amendment like New York’s, some argue that activists should instead focus on enacting amendments that set concrete environmental policies, such as renewable energy benchmarks.
Democratic Decisionmaking and Public Polarization
Policymakers and the public must be willing to make sacrifices if they truly seek to combat climate change. Yet, despite the urgency of this environmental crisis, the democratic nature of decision-making cannot be overlooked. This value is especially crucial from a political standpoint. Truly democratic climate measures should seek and incorporate feedback not only from scientists but also from impacted communities. If comprehensive climate measures are the goal, community input and solidarity must be our guiding lights.
Of course, the current state of politics and public opinion imposes an impediment to real progress. Political polarization the divergence of political views, is growing in the federal government, the United States, and across the world. As a result, individualism and self-sufficiency are increasingly permeating American worldviews. To make matters worse, the global climate crisis urgently demands bold action—action which may accelerate and further deepen this polarization and individualist public worldview.
Further, questions remain about how to move past this polarization and prompt the democratic climate action we need. Impacts of climate change abound, though marginalized communities face a disproportionate brunt of the harms. We do not wish for the climate crisis to worsen, but at the same time, the only way to break through political inertia and polarization may be for the effects of climate change to finally strike the responsible parties. Otherwise, overcoming the gap between those driving the climate crisis and those suffering the most from its effects will require empathy and willingness to venture beyond one’s ideological silo—mindsets that political polarization greatly impedes.
Conclusion
Ultimately, our planet has limited time and resources left. Therefore, it is necessary to democratically address climate change in the most efficient and effective way possible. Climate measures must be carefully calibrated to the reality of the current legal system and social context. Crafting concrete climate policy through democratic processes may be the most efficient method to mobilize our limited resources, and to stand the greatest chance of curbing climate change before the worst of its effects become irreversible.