By: Maya Marshall
Over the last few years, many activists and attorneys have attempted to push the judiciary to the front lines of combating climate change.[i] Supporters of this approach look to the judicial system as the country’s last line of defense in the fight to save our planet and its residents.[ii] Despite the increasingly conclusive evidence showing severe climate change, the legislative and executive branches refuse to act.[iii] Many believe that since the other two branches have failed to create and implement aggressive action plans to combat the current environmental crisis, it is the judicial branch’s responsibility to protect the nation’s citizens.[iv]
As a result of its failure to act, the federal government opened the door to an influx of lawsuits that argue its inability to take action is a violation of individuals’ Due Process rights under the Fifth Amendment.[v] Specifically, the plaintiffs, comprised mostly of younger petitioners, allege the government’s refusal to act deprives them of their life, liberty, and property without due process of the law.[vi] The plaintiffs filed the lawsuits fueled by the intent to initiate change “from a government that is ignoring (and furthering) a life-threatening danger that they see.”[vii] Although concrete evidence and support indicating an imperative need to take action exists, plaintiffs’ claims on this front have been unsuccessful.
The overwhelming and unequivocal amount of scientific evidence indisputably demonstrating the existence of global warming is hard to ignore.[viii] More than 97% of climate scientists agree current climate trends directly correlate with high levels of greenhouse gases emitted by human activity.[ix] If the executive and legislative branches current apathetic treatment of climate change continues, it “‘will cause human deaths, shorten human lifespans, result in widespread damage to property, threaten human food sources, and dramatically alter the planet’s ecosystem.’”[x]
While it is clear immediate action must be taken, the judiciary branch is unable to provide climate-change advocates with the remedy they seek. The United States Constitution dictates and controls the actions taken by the judicial branch. In recent climate litigation, plaintiffs struggled to fulfill the redressability component of the legal standing requirement established in Article III of the Constitution. Plaintiffs cannot meet this requirement because the relief sought is not likely redressable by a favorable judicial decision.[xi] No evidence has been presented demonstrating that the relief sought would stop climate change or even improve the plaintiffs’ injuries.[xii] Even if all of the targeted federal programs and policies were eliminated, there is no evidence that carbon dioxide levels in the atmosphere would decrease. Under Article III, the legal standing redressability requirement is only fulfilled if the relief is “substantially likely to redress their injuries; and (2) within the district court’s power to award.”[xiii] Providing a judicially imposed remedy that would solve the issue of climate change would be extremely difficult and is beyond the power of the judicial branch. The role of the judiciary is to interpret and apply the law, not to pass judgement on the conduct or policies of the executive and legislative branches.[xiv] The relief plaintiffs seek would force the judiciary to strip the executive branch of authority that has been expressly granted by Congress, and it would also strip Congress of power that has been expressly granted by the Constitution.[xv] If courts were to insert themselves in this issue, their actions could rightly be seen as a “‘direct attack on the separation of powers’ and an assault on the Constitution’s design.”[xvi] Effectuating relief to the plaintiffs would constitute an invasion of powers and authority of the other two branches. When the courts cannot find their right to act in the Constitution or in a congressionally mandated decree, they have no power.
If plaintiffs are able to overcome the redressability requirement of standing, they then must deal with the reality that many of the claims they are asserting are not rights that have been constitutionally recognized. The asserted right to a climate system capable of sustaining human life and the right to live in a contaminant-free health environment are not fundamental rights that have been recognized by the Supreme Court. Although the Court has not officially recognized these environmental rights, they are rights that are so “fundamental that the [government] must accord them its respect.”[xvii] If these rights are not recognized as fundamental constitutional protections, the collapse of our ecosystem will result in the deprivation of life, liberty, and property for all. Unfortunately, even the recognition of such rights brings the judiciary back to the issue of legal standing. If these rights were to become constitutionally recognized, there is a high probability that they would not constitute the kind of discrete and particularized injury needed to fulfill the requirements of Article III standing.[xviii]
While it is clear that prompt and aggressive action is essential to the preservation of our society and ecosystem, it is currently beyond the power of the judiciary to implement this change. The Constitution strategically distributes specific powers to each branch of government to ensure stability and accountability. An imbalance of power or encroachment of authority by any of the three branches of government is a strict violation of the Constitution. The executive and legislative branches must step-up and recognize the catastrophic consequences of failing to properly respond to the climate crisis. Major policy changes that attempt to reverse the current environmental damage must be created and implemented swiftly.
[i] Dean Kuipers, Three Ways to Combat Climate Change Through the Courts, The Atlantic (Oct. 30, 2018) https://www.theatlantic.com/ideas/archive/2018/10/three-ways-combat-climate-change-through-courts/574315/.
[ii] Id.
[iii] Id.
[iv] Id.
[v] Id.
[vi] Carolyn Kormann, The Right to a Stable Climate is The Constitutional Questions of the Twenty-First Century, The New Yorker (Jun. 15, 2019), https://www.newyorker.com/news/daily-comment/the-right-to-a-stable-climate-is-the-constitutional-question-of-the-twenty-first-century.
[vii] Id.
[viii] Climate Change: How Do We Know?, NASA (last visited Feb. 4, 2020), https://climate.nasa.gov/evidence/.
[ix] Scientific Consensus: Earth’s Climate Warming, NASA (last visited Feb. 4, 2020), https://climate.nasa.gov/scientific-consensus/.
[x] Juliana v. United States, 947 F.3d 1159, 12 (9th. Cir. 2020).
[xi] Id. at 18.
[xii] Id. at 23.
[xiii] Id.
[xiv] See id. at 26.
[xv] Id. at 22.
[xvi] Kormann, supra note 6.
[xvii] Juliana, 2020 U.S. App. Lexis 1579, at 36.
[xviii] Id. at 29.