A. Overview
B. Emerging Rights and Challenges: The Constitutional Right to Safe Climate
C. Conclusion
This OER explored the structure of the U.S. government, the constitutional foundations of civil rights and liberties, Supreme Court doctrine, individual rights, protections against discrimination, and contemporary civil rights issues. This last chapter will briefly explore an emerging right. It is my goal to use Chapter Fourteen to highlight a different timely topic each semester. I welcome suggestions for topics to include in future editions. Please email your ideas to hgetchellbastien@massbay.edu.
B. Emerging Rights and Challenges: The Constitutional Right to Safe Climate
For decades, environmental advocates and civil rights organizations around the world have pursued legal action against corporations whose practices contribute to pollution, greenhouse gas emissions, and climate change. State and federal governments have been sued as well for their failure to adequately regulate or address these harms. Before examining emerging legal challenges, it is important to understand the scope of the environmental damage facing the planet (Politico, 2025).
Research over the past several decades shows that common industrial practices jeopardize access to clean air, water, soil, and food. This is largely due to the widespread burning of fossil fuels for energy production in industry, manufacturing, and transportation. Coal-fired power plants and waste incinerators release harmful contaminants such as mercury, arsenic, and lead, while also emitting carbon dioxide and methane, the primary greenhouse gases responsible for global warming. Deforestation makes these effects worse because trees absorb carbon dioxide, and their removal allows more carbon to accumulate in the atmosphere. This results in rising temperatures, stronger storms, prolonged droughts, increased flooding, a rising sea level, and increased air pollution. These conditions contribute to illness, cancer, poverty, and displacement caused by extreme weather events. Several studies also show that air pollution is disproportionately concentrated in low-income and urban communities. As a result, numerous human rights organizations view climate change as a civil rights issue because its consequences impact the health and safety of marginalized populations to a greater extent than other groups (American Civil Liberties Union, 2021; United Nations, n.d.)
Despite the consensus in the scientific community about climate change, some government officials, public figures, and leaders of corporations claim that climate change is exaggerated or nonexistent. They frequently attribute any observed changes to the environment to natural environmental cycles, short-term weather variations, a lack of scientific agreement, or other anomalies. A common argument of climate change deniers is to point to isolated cold weather events to refute “global warming,” which shows they misunderstand the term “climate change.” Another argument is that climate change has always occurred naturally, and/or that plants, animals, and humans will easily adapt. Climate scientists have consistently rejected these claims, explaining that climate refers to long-term trends rather than short-term weather variations, while pointing to data that the current rate of warming is unprecedented and driven by human activity (Rainforest Alliance, 2022).
Despite these competing arguments, environmental advocates and civil rights organizations have pursued legal remedies for decades. One such remedy is toxic tort litigation, an area of law that allows individuals and communities to sue companies whose pollutants or hazardous substances have caused physical injury, environmental damage, or long-term health risks. These cases often involve exposure to industrial chemicals, contaminated water, or air pollution. Anderson v. Cryovac, Inc. (1988) is widely regarded as one of the earliest and most influential modern toxic tort cases, establishing that corporations may be held liable for contaminating a community’s drinking water even when plaintiffs face significant challenges in proving direct causation. In some circumstances, plaintiffs have also sued governmental entities for failing to regulate or respond adequately to known environmental hazards. For example, in Massachusetts v. Environmental Protection Agency (2007), states successfully challenged the federal government’s failure to regulate greenhouse gas emissions, and the Supreme Court held that the EPA had authority under the Clean Air Act to address climate-related harms.
Although other case law remedies are available, environmental protection in the United States is primarily governed by statutes such as the Clean Air Act, the Clean Water Act, the Safe Drinking Water Act, and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). These laws regulate pollution, protect public health and natural resources, and provide mechanisms for enforcement and cleanup (EPA, 2023).
However, toxic tort cases and environmental litigation remain among the most complex and difficult forms of civil litigation. Plaintiffs must usually prove a causal connection, meaning a scientifically supported link between exposure to a particular substance and a specific injury or illness. This burden often requires sophisticated scientific evidence and costly expert testimony. Differing legal standards across jurisdictions, combined with the extensive legal resources available to large corporations, make these cases extremely expensive, time-consuming, and uncertain, even when serious harm has occurred (Bell Legal Group, 2025).
This is why a wide range of organizations in the United States and within the United Nations view a safe climate as a human right. They work to address climate change through research, regulation, advocacy, international negotiation, and community-based environmental justice initiatives. Environmental groups, scientists, youth movements, and diplomatic teams have urged governments and corporations to take stronger action. These efforts are often limited at the international level because the United Nations lacks direct enforcement authority, and political systems in many countries, including the United States, remain heavily influenced by corporate interests. As a result, sustained advocacy, regulatory reform, and consumer actions, such as boycotts, remain central to achieving meaningful climate progress (Human Rights Watch, 2024).
More recently, a new type of legal strategy has emerged that frames climate harm as a constitutional issue. In Juliana v. United States (2015), twenty-one plaintiffs who were between the ages of 8 and 19 filed suit against the federal government. They argued that the government knowingly promoted fossil fuel use despite understanding its climate impacts, thereby violating their Fifth Amendment due process rights to life, liberty, and property. They also claimed that the government breached a public trust–type duty to protect essential natural resources, particularly the atmosphere, for present and future generations. The case was dismissed on standing and separation-of-powers grounds, and the Supreme Court of the United States declined to hear the case. However, the trial court and circuit court engaged substantially with the constitutional arguments, and the case inspired later lawsuits based on climate harm (May, 2024).
In Held v. Montana, sixteen Montana youth, ranging in age from 2 to 18, sued the state, arguing that Montana's policies promoting fossil fuel development violated their constitutional right to a “clean and healthful environment.” The plaintiffs specifically challenged provisions of the Montana Environmental Policy Act that barred state agencies from considering greenhouse gas emissions when approving energy projects. After a full trial in 2023, a Montana district court ruled in favor of the youth plaintiffs, holding that these statutory limits were unconstitutional because they prevented the state from fulfilling its constitutional duty to protect environmental rights. The state appealed the decision, and Montana Attorney General Austin Knudsen’s office characterized the lawsuit as a “taxpayer-funded publicity stunt,” calling the ruling “absurd.” Montana’s Supreme Court heard oral arguments on July 10, 2024, and on December 18, 2024, it affirmed the lower court’s decision. Although the ruling is not binding on other states, it is widely viewed as a major victory for state-level climate litigation and a strong model for environmental claims brought under state constitutions that explicitly protect environmental rights (Gelles & Baker, 2023).
Two years later, some of the youth plaintiffs from Juliana v. United States and Held v. Montana joined with the nonprofit organization Our Children’s Trust and other advocates in the Lighthiser v. Trump case. In Lighthiser, twenty-two youth plaintiffs filed suit in the U.S. District Court for the District of Montana challenging a series of executive orders issued by President Trump that expanded fossil fuel production, accelerated energy development on federal lands, weakened environmental review requirements, and limited the consideration of climate change in federal decision-making. The plaintiffs argued that these executive actions would increase greenhouse gas emissions and intensify climate-related harms, thereby violating their Fifth Amendment substantive due process rights to life and liberty. They also alleged that the president exceeded constitutional authority by undermining existing environmental protections and restricting the use of climate science in federal policy. The district court dismissed the case on jurisdictional and separation-of-powers grounds, and the Supreme Court declined to hear it. Although the outcome was a legal loss, Karen Zraick, a climate law reporter for The New York Times, noted that the judge’s opinion acknowledged climate change as a children’s health emergency, a finding legal experts say could influence how future climate lawsuits are framed, and that the ruling also offered unusually detailed guidance on how plaintiffs might better structure climate claims to address standing and separation-of-powers barriers. As a result, the decision is widely seen as a strategic step forward rather than a complete defeat (Zraick, 2025)
Zraick’s optimism is shared by scholars and legal practitioners across the environmental law community. Writing for the American Bar Association, James Robert May explains that although neither U.S. federal law nor international law explicitly recognizes a standalone human right to a healthy climate, courts around the world are increasingly grappling with climate claims framed in terms of human rights, dignity, and intergenerational equity. He points to Montana’s constitutional guarantee of a clean and healthful environment in Held v. Montana as an example of how advocates may find greater success by continuing climate advocacy at the state court level rather than in federal courts (May, 2024).
Similarly, Sophia Tidler, writing in the Pace Environmental Law Review, argues that constitutional climate litigation is evolving rather than failing and contends that future progress lies in grounding climate protections within existing constitutional principles, including due process, property rights, and the Constitution’s concern for posterity. Drawing on dissents in Juliana v. United States and legal developments in other countires, Tidler maintains that courts need not invent new rights but can interpret long-standing constitutional commitments to safeguard a life-sustaining environment for future generations. Taken together, these perspectives support Zraick’s assessment that even dismissed federal cases and isolated state-level victories contribute meaningfully to climate litigation strategies by clarifying which legal approaches are more viable, identifying appropriate forums, and shaping the direction of future climate advocacy (Tidler, 2024).
C. Conclusion
The constitutional right to safe climate is an emerging area of law. Although it is not fully recognized in American courts, climate advocacy is likely to gain more momentum in the future. A potential barrier to progress is the current political climate in the United States, which consider to be in a state of crisis. Regardless of one's political stance, advocacy is essential to changing the status quo. Although it is an American trait to prioritize individual rights, addressing our collective responsibilities is also necessary before anything will change. Our climate will continue to deteriorate regardless of whether governments or corporations acknowledge the harm being done, so the public needs to put pressure on elected officials and businesses to change current practices. Future generations will look back and judge how Americans during this time period responded to the climate crisis and ongoing civil rights violations. Ultimately, it is up to us, individually and collectively, to care enough to change things.
Sources
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Anderson v. Cryovac, Inc., 862 F.2d 910 (1st Cir. 1988).
Bell Legal Group. (2025, October 6). Understanding toxic tort cases https://www.belllegalgroup.com/understanding-toxic-tort-case
Environmental Protection Agency. (2023). Summary of environmental laws administered by the EPA. https://www.epa.gov/laws-regulations/laws-and-executive-orders
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