The world is on fire, and despite a general consensus among scientists that climate change is an imminent threat, recent decades have been devoid of legislatures capable of enacting meaningful legislation. The flames rage on as our President, an outspoken denier of climate change, adds fuel to the fire by stripping whatever attempts had been previously made to mitigate the effects of climate change. Forced to live in what seems a forsaken world, nineteen youths, a nonprofit organization, and a scientist on behalf of all future generations brought suit against the United States government, seeking more robust environmental protections. In a landmark decision that garnered much thoughtful attention, Juliana v. United States, held, in pertinent part, that the U.S. Constitution protects a fundamental right to a climate system capable of sustaining human life. After nearly a century of looking past the written words of the Constitution to find intrinsic rights, twenty years ago the Supreme Court dictated a rigid two-part test for sustaining alleged fundamental rights. The Glucksberg test came to fruition despite decades of justices arguing for a more fluid analysis. That is until Justice Kennedy penned Obergefell v. Hodges. Justice Kennedy carefully sidestepped Glucksberg so as not to offend it and instead adopted that fluid approach in finding certain fundamental rights, leaving two possible paths. This Note argues that under the current formation of Supreme Court substantive due process jurisprudence, the Constitution does not protect a fundamental right to a climate capable of sustaining human life. Neither Glucksberg nor Obergefell provide a proper avenue through which plaintiffs may successfully seek redress. Rather, plaintiffs must utilize other mechanisms to effectuate a lasting change, such as amending the Constitution, employing the political process, or persistently litigating in a piecemeal fashion.
Robert Torres, Note: Foundational But Not Fundamental: No Right To the Environment, 31 Duke Environmental Law & Policy Forum 175-213 (2020)
Available at: https://scholarship.law.duke.edu/delpf/vol31/iss1/4