The Penumbras and Emanations of Climate Change: The Case for Environmental Constitutionalism in The U.S. Context.

by Terry Ann Campbell


You may have heard that the Ninth Circuit recently dismissed Juliana v. United States for lack of Article III standing. According to the Ninth Circuit, the 21 Youth Plaintiffs failed to show that their claims can be redressed by the judiciary. The Court’s main argument indicates that Congress and the Executive branch would be better mediums for these young Plaintiffs to advocate for the constitutional relief they seek.

Contrary to the Ninth Circuit’s ruling, the Due Process Clause and the Equal Protection Clause were created to do just what the Youth Plaintiffs are vindicating; relief from the effects of climate change and preserving the planet for future generations. Youth Plaintiffs assert in their amended complaint that the government’s actions violate plaintiffs’ constitutional rights, depriving them of life, liberty and property. As such, Judge Josephine Staton issued a lengthy dissentto show her vehement disagreement with the majority ruling. Judge Staton opined that her colleagues should not have dismissed the case because the Youth Plaintiffs provided sufficient evidence to show that they suffered injury as a result of the government’s conduct or lack thereof. She continued that the judiciary was the correct avenue for the Youth Plaintiffs to air their claim because the judiciary has always been the medium that addresses constitutional issues. The dissent agrees with the Youth Plaintiffs that the Due Process Clause and the Equal Protection Clause protect fundamental rights—even those that are not expressly spelled out in our Constitution—because they are deeply rooted in our nation’s history and tradition.

Since the January 17, 2020 ruling, the Youth Plaintiffs, through their attorneys, filed an en banc petition with the Ninth Circuit on March 2, 2020. In the case of the Ninth Circuit, en banc means that the eleven-member bench will be asked to make a final decision on January’s highly controversial ruling.

Yet, for climate activists, Juliana is already a pretty big deal. It is the first U.S. case of its kind to have gained significant media attention. Further, Juliana has put judges in such a conundrum as to whether the Constitution allows for a private right of action to a clean and healthy environment.

At the basis of the Juliana case approach is the concept of environmental constitutionalism. This is the idea that courts must apply Constitutional Law in addressing cases that involve environmental violations especially when they threaten human life or health in some way or another. Environmental Constitutionalism began fifty years ago. There was a growing need to develop a system of environmental protections which take into consideration the future of human interaction with a more sustainable and lasting environment that is safe to live in. Further developments have led scholars to effectively advocate for the practice of incorporating constitutional texts that enforce against environmental violations—including those of a global nature—like climate change.

Environmental Constitutionalism, though novel in the U.S. context, has been applied by many other countries to bolster some of the most important court decisions that affect mankind and the planet. Concretely, Colombia remains the leading example of the difference constitutional protections can make for environmental claims. A  landmark case in Colombia saw the successful efforts of twenty-five young climate activists who carried individual constitutional claimsthrough their country’s courts. The Colombian youth plaintiffs argued before the Constitutional Court that record rapid deforestation in the Amazon occurred between 2015 and 2016. Further, Colombia had already lost forty percent of its Amazonian forest and that the Colombian government—despite knowing of the repercussions—failed to prevent the vast deforestation.  The Colombian youth plaintiffs prevailed, and the Constitutional Court ruled that under the Colombian Constitution, the Amazon, was entitled to protection, conservation, maintenance, and restoration from harmful environmental practices. As you already know, the Amazon is home to many flora and fauna that are pivotal in maintaining the stability of our planet.

Another groundbreaking case is the Urgenda case which saw a class action decision approved by the Dutch Supreme Court. That Court ruled that the Dutch government has human rights obligations to its population to aggressively tackle the effects of climate change.

Furthermore, several countries like Cote d’Ivoire, Dominican Republic, Ecuador, Thailand, Tunisia, Venezuela, and Viet Nam have already expressly addressed climate change in their constitutions as a way of advancing climate justice and the right to a healthy environment. Notably, Ecuador has been lauded to be the first country to have rewritten its constitution to include the rights of nature, instead of treating nature solely as property rights.

Even though the Juliana case has been dismissed, this is not the time for climate activists to give up. The U.S. Constitution already has language that protects its citizens from the deprivation of life, liberty and property. Therefore, why not apply the Colombian and Dutch examples to the U.S. context to ensure compliance and enforce against disparate threats like climate change?

The time is right to expand the discussion for a U.S. framework on environmental constitutionalism. Regardless of the outcome of the Ninth Circuit’s decision, Juliana is a revolutionary case that continues to spark ongoing conversations and forge new precedent.

Wah gwaan – Hello everyone! My name is Terry Ann Campbell and I am a 3L at Vermont Law School who will graduate in May 2021. Fun fact, I grew up on the island of Jamaica and I am fluent in French. I am currently pursuing a General Practice Certificate which has allowed me to gain a lot of practical experience in the field of Law. I take an intersectional approach to learning the law and as such, I am interested in the way the law interacts with commercial trade, human rights, and climate justice. Being a Staff Editor on VJEL has allowed me the opportunity to write about environmental issues I deeply care about. It’s been my pleasure writing this blog and I hope you will also find pleasure in reading it. When I am not tackling serious issues, I like to meet new people, go on nature walks, binge watch movies and catch up with old friends and family. Feel free to reach out to me if you have any questions, I would love to meet you!