Is there a Constitutional Right to be Protected from Climate Change?

Photo by William Bossen on Unsplash

Janelle Thompson, Associate Member, University of Cincinnati Law Review

I. Introduction

Anthropogenic climate change, caused by releasing greenhouse gases like carbon dioxide into the atmosphere, is becoming an increasing threat to the global population. Without more aggressive international climate change policies, the United States alone could end up spending $224 billion more per year in key industries such as agriculture and infrastructure by 2090.[1] The lost labor hours from extreme heat temperatures alone could cost the U.S. $75 billion per year in the future.[2] Climate change’s economic impact excludes the effect of lost health and lives, trauma and suffering, species extinctions, and reduced biodiversity.[3]

The ongoing crisis has spurred a movement to preserve natural resources, consider alternative energy sources to fossil fuel, and mitigate the changing climate system’s worst impacts. Stressed citizens and city governments are searching for an entity to hold accountable for causing environmental damage. Some environmental activists have turned to the court systems to spur the government into taking more drastic action.[4] Cities in at least five states have filed lawsuits against prominent oil companies, accusing the industry of misrepresenting the dangerous ramifications of burning fossil fuel.[5] While governments are suing oil industries, young people are suing their governments along with the oil industries. Children are becoming plaintiffs in lawsuits alleging that the government has breached its duty to protect them from climate change.[6] These “climate change lawsuits” raise critical constitutional issues regarding the separation of powers and justiciability. Courts inundated with complaints are grappling with the role, if one exists, of the judicial system in climate change action.[7] 

This blog compares several approaches that plaintiffs use in climate change litigation and examines the function that courts could play in climate change activism. Part II details the attempt to hold the government responsible for climate change through the public trust doctrine illustrated by the Oregon Supreme Court ruling in Chernaik v. Brown. Part III details a similar approach to industry liability through the ongoing litigation in City of Charleston v. Brabham Oil Company. Part IV presents an evaluation of both approaches and questions whether courts can and should decide climate change lawsuits. Part V concludes with a recognition of the challenging balance between judicial activism and judicial lawmaking.

II. Governments Accountability through the Public Trust Doctrine

A recent Oregon Supreme Court case rejected the argument that the Constitution provides a right to protect individuals from climate change.[8] In Cherniak, an Oregon-based nonprofit brought a lawsuit on behalf of the child plaintiffs under the public trust doctrine.[9] The public trust doctrine holds that government-owned natural and cultural resources are preserved for public use and must be protected and maintained by the government for the public’s use.[10] The doctrine was originally limited to “navigable waters and the submerged and submersible lands underlying those waters.”[11] The narrow category described by the doctrine has expanded to cover several other categories, including tidelands, wetlands, and beaches.[12]

The Cherniak plaintiffs asked the court to specify the natural resources that Oregon protected in public trust and declare that the state had a fiduciary duty “to prevent substantial impairment of those resources caused by emissions of greenhouse gases.”[13] More specifically, the plaintiffs asked the court to expand the public trust doctrine to include the state’s waters, wild fish and other wildlife, and the atmosphere.[14] The plaintiffs also asked for an injunction ordering the government to 1) create and distribute an annual accounting of Oregon’s carbon dioxide emissions and 2) implement a court-supervised carbon reduction plan to protect Oregon’s natural resources.[15] On the other side, the government argued that neither U.S. law nor history supported a “fundamental right to a livable climate.”[16] Furthermore, the government alleged that the lawsuit was an unconstitutional attempt to control America’s energy policy.[17]

Notably, both the court and government acknowledged that climate change was a substantial problem that required action.[18] The court also recognized the ability to expand the public trust doctrine past the narrow scope of navigable waters and nearby land. However, the court declined to adopt the enlargement requested by the plaintiffs for being too broad.[19] Additionally, the court held that the public trust doctrine did not impose a fiduciary duty on the state to protect trust resources from climate change.[20] The court dismissed the case for lack of legal standing, ignoring a strong dissent that called for the court to reshape the laws that governed the executive and legislative branches’ actions.[21]

III. Industry Accountability for Climate Change through Police Powers

Some cities have sought to find accountability for climate change in the oil industry using their inherent police powers.[22] In Brabham, the City of Charleston went as far as blaming major corporate fossil fuel companies for the substantial increase in all C02 emissions between 1965 and the present.[23] The City alleged that the industry benefited from fossil fuel for decades while concealing the knowledge that it would cause the climate to change, to the detriment of coastal cities like Charleston.[24] The City brought several charges, including public and private nuisance, strict liability and negligent failure to warn, trespass, and violations of South Carolina’s Unfair Trade Practices Act.[25] The City grounded its authority as an exercise of its police power to prevent “injuries to and pollution of the City’s property and waters, to prevent and abate nuisances, and to prevent and abate hazards to public health, safety, welfare, and the environment.”[26] Among other measures, Charleston requested compensatory and punitive damages to cover the expense of surviving climate change.[27]

IV. Discussion

The two approaches discussed in the earlier sections of this blog center around who or what entity is to blame for climate change’s disastrous effects. The activists suing the government are taking a proactive approach to the climate crisis by forcing faster action towards solutions. The cities suing the oil industry are reacting to the high cost that climate change is imposing on state and federal governments and consumers. Cities like Charleston hope to ensure survival through climate change by using the oil industry’s deep pockets as a resource.

Suing the government under the public trust doctrine seems unlikely to be an effective strategy. The Oregon Supreme Court had the opportunity to expand the public trust doctrine to include other natural resources to find for the plaintiffs. However, it appeared that the Chernaik court was nervous that deciding for the plaintiffs would open the floodgates to judicial activism, and every natural resource would be under court management. Ordering the state to act against climate change would require an extensive amount of judicial overview in an already busy court system. Therefore, the court resolved to acknowledge climate change but tossed the problem to the state and federal legislatures with the hopes that the policymakers would pick up the pace after decades of slow movement. Several other courts across the country have expanded the public trust doctrine to include other resources. While a claim under the public trust doctrine seems unlikely to be successful in Oregon, perhaps climate activists would have more luck bringing the same claim in a state more open to expansion.

The governments’ claims against the industry under more traditional liability theories may be less daunting for courts to accept. Decades of legislation and judicial decisions have grounded state and municipal police powers in the Constitution. The government’s theory that oil companies intentionally deceived the public about the dangers of climate change is similar to how earlier governmental entities sued tobacco companies for covering up information about smoking’s substantial health risks.

The oil industry has several points to respond to ongoing government lawsuits. First, the industry can use the same argument that the government used in Chernaik: the legislature and not the judicial branch should decide climate change policy. Second, the government must offer evidence to prove that the oil industry knew about climate change and intentionally lied to the public about it. This high bar of production may be a hurdle in attempting to establish liability for the oil industry. Third, oil companies are pushing the narrative that the fossil fuel industry must be part of the solution to climate change. Instead of being sued, oil producers need to be working with legislatures to address the climate crisis sustainably.

It seems unlikely that meaningful shifts in climate policy can come from the same industry that benefits from using fossil fuels. Nonetheless, it remains unclear what a system of judicially created policy would look like. Climate change is a complex issue that transcends cultures and boundaries. Prevention and mitigation measures will need to be efforts coordinated across cities, states, and countries. Is the court system equipped to handle such an encompassing policy haul?  Even if judges felt confident in their ability to manage climate policy, should they “legislate from the bench” to enact it?

V. Conclusion

Every approach to handling a crisis as complicated as climate change will come with benefits and drawbacks. Involving the court system in climate change explores ever-present questions about balance in the three branches of government. There is no right answer to who is responsible for climate change and who should bear the financial burden of the harm it causes. Holding the oil industry responsible for the cost of climate change and putting money into solutions to restore the environment as much as possible are both valid reactions to the climate crisis. Courts must strike a difficult balance between protecting the rights of people and judicial lawmaking. Some courts are willing to step into the activism role to ensure climate justice, while other courts punt the issue over to the legislature. Most likely, surviving climate change will take a joint effort from all three branches of the American government.

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[1] Dana Nuccitelli, Climate change could cost the U.S. economy hundreds of billions a year by 2090, https://yaleclimateconnections.org/2019/04/climate-change-could-cost-u-s-economy-billions/ (April 29, 2019).

[2] Id.

[3] Id.

[4] David Hasemyer, Fives States Have Filed Climate Change Lawsuits, Seeking Damages From Big Oil and Gas, https://insideclimatenews.org/news/14092020/climate-change-lawsuit-connecticut-deleware (Sept. 20, 2020).

[5] Id.

[6] Sebastien Malo & Jonathan Stempel, Children, young adults cannot sue U.S. government over climate change, https://www.reuters.com/article/us-climate-change-lawsuit-children/children-young-adults-cannot-sue-u-s-government-over-climate-change-ruling-idUSKBN1ZG252 (January 17, 2020).

[7] Id.

[8] Chernaik v. Brown, 367 Or. 143 (2020).

[9] Chernaik at 147.

[10] Cornell Law School, LEGAL INFORMATION INSTITUTE, law.cornell.edu/wex/public_trust_doctrine (last visited November 12, 2020).

[11] Chernaik at 148.

[12] Richard M. Frank, The Public Trust Doctrine: Assessing Its Recent Past & Charting Its Future, 45 U. Cal. Davis L. Rev. 665, 668 (2012).

[13]  Chernaik at 149.

[14] Id. at 155.

[15] Id.

[16] Id. at 150.

[17] Id.

[18] Id. at 169.

[19] Id.

[20] Id.

[21] Id.

[22] Complaint at 6, City of Charleston v. Brabham Oil Company, No. 2:20CV03579 (4^th Cir. October 9, 2020). 

[23] David Hasemyer, Fives States Have Filed Climate Change Lawsuits, Seeking Damages From Big Oil and Gas, https://insideclimatenews.org/news/14092020/climate-change-lawsuit-connecticut-deleware (Sept. 20, 2020).

[24] Complaint at 6, City of Charleston v. Brabham Oil Company, No. 2:20CV03579 (4^th Cir. October 9, 2020). 

[25] Id. at 7.

[26] Id.

[27] Id. at 136.