Stepping into the Breach: State Constitutions as a Vehicle for Advancing Rights-Based Climate Litigation

The perceived failures of the political branches to mitigate climate change have led climate change activists to seek alternative means to achieve reductions in greenhouse gas emissions; many are turning to litigation. The claims in these cases rely on a variety of legal bases, but this Note will focus on those cases claiming that governments’ failures to prevent climate change amount to violations of the plaintiffs’ constitutional rights under the Due Process Clause of the Fifth Amendment. Rights-based climate change litigation is likely to increase in the future. Among the most prominent of the surviving rights-based cases is Juliana v. United States, currently awaiting trial in Oregon’s Federal District Court. This case presents a novel theory known as atmospheric trust litigation, which alleges that because the Constitution guarantees rights to life and property, the government has a duty to protect the natural systems necessary for its citizens’ survival. Although creative, some commentators have argued that federal courts are unlikely to look favorably on this claim, which some consider to be extrajudicial “rights innovation.” The Supreme Court has occasionally seen fit to recognize new rights as protected by the Due Process Clause, but recent changes to the Court’s composition seem unlikely to extend this practice. Thankfully for the plaintiffs in Juliana and others like them, the United States’ federalist system--which treats the federal government and states as dual sovereigns--may provide an alternative path to success. This Note argues that climate change litigants may find a more plausible and efficacious means of achieving rights-based victories under the parallel rights guarantees of individual state constitutions