The Constitutional Climate Crisis
The Preamble of the Declaration of Independence states, “…[people] are endowed, by their Creator, with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.” If a planet is deemed unsafe for human beings, that danger can be perceived as a threat to those unalienable rights.
The first group to make such an argument was in the Netherlands in 2015. Urgenda, an advocacy organization, argued that their government had a philosophical and moral duty to protect them from climate change. They won the case, and in 2019 the legal ruling was upheld again, entrenching its validity. The 2015 ruling said the Dutch government had to cut emissions by 25% as their duty was to protect citizens, even if that protection means protecting its citizens from the environmental crisis.
In this, the Dutch government proved that climate litigation was a real idea. Since then thousands of lawsuits have been recorded. In 2024, there are believed to be 2,500 lawsuits across the world.
The United States has had an ongoing case beginning in 2015 with the Supreme Court called Juliana vs. The United States. The case is led by 21 youth plaintiffs, arguing that the government’s continued support of fossil fuel industries, as well as little progress to mitigate climate change, violated their Fifth and Ninth Amendment rights. The Fifth Amendment’s Due Process Clause protects our right to life and liberty before due process of law. The Ninth Amendment states that basic rights will be protected even if it’s not listed in the constitution. Climate change-related events such as hurricanes, heat waves, and air quality alerts, threaten these constitutional rights. Thus, this combination of the Fifth and Ninth sketches out a legal and constitutional place for a government’s obligation to environmental protection.
The case has been struggling for a while in the US. It was filed on August 12th, 2015. 8 months later with the government, fossil fuels companies became defendants and filed a motion to dismiss. In June 2017, the motions were dismissed and the case was allowed to continue. Afterwards, a similar pattern continued, motions were continually filed for it to be dismissed, trial dates were set only to be pushed back, and judges gave various rulings that allowed the case to continue. The Supreme Court in 2018 did rule unanimously for the plaintiffs, meaning the defense applications for stay were denied. Despite that, the trial continued to be put on hold, with motions to dismiss filed. On the date the new trial was supposed to begin, thousands rallied at courthouses in protest.
In 2019 the Join Juliana campaign began, led by ZeroHour which amplifies youth voices in the climate crisis. Another 5 years of motions and stays led to where the case is at presently. On May 1st, 2024 the courts granted the Department of Justice’s petition for Writ of Mandamus (an order made by a higher court to a lower government official) stalling the process, and now the plaintiffs are evaluating a way forward.
While the particular case of Juliana vs. The United States has struggled to find legal footing, they have inspired many other, arguably more successful cases. Eight youth have filed against the State of Alaska, eighteen youth have filed against the EPA, and two more similar cases have been filed, one against Montana, and one against Hawaii’s Department of Transportation.
Globally, one country was just the start of an entire movement. Most recently a way was paved for the youth who filed a case in Canada against His Majesty the King. The appeals court ruled unanimously in favor of the youth, allowing the case to continue. In April 2024 a new case was filed in the European Court of Human Rights, and another similar case is being litigated in South Korea.
While most of the cases are against governments, lawsuits from across the globe are also accusing oil companies, government organizations that are in charge of the environment, and fossil fuel industries of their negligence.
Additionally though the majority of the cases were filed by youth, or youth focused organizations, some were filed by other concerned groups of people. The case mentioned above in the European Court of Human Rights was actually spearheaded by a group of elderly women. Their argument was that their age and gender made them more vulnerable to heat waves caused by climate change. The Swiss women won the case, making it the first ever legal climate success in the European Court of Human Rights.
Whether the case is against a company or a government, filed by young or the elderly these types of litigation are only just the beginning of a far more important wave. Youth today are more aware of climate change than ever before. All of these cases take a somewhat different route than most activists, going through the courts rather than protesting or lobbying their governments. Wins in these courts are changing policies like seen in the original case in the Netherlands. These constitutional cases are setting never before seen precedents that those who wrote the constitution could have never predicted. The very words we use to describe such environmental issues weren’t described and used en masse until the 1950s, centuries after the constitution was written.
Is it a government’s duty to protect its citizens from climate change? Or does the blame fall elsewhere? Climate advocates from across the globe bring these questions to the table and challenging the founding documents of their governments, pioneering a new sphere of environmental litigation and forcing governments to delineate their constitutional obligations to their citizens.