Subnational Climate Rights in America
James R. May* | 26.5 | Citation: James R. May, Subnational Climate Rights in America, 26 U. Pa. J. Const. L. 1237 (2024).
There have been nearly 3,000 “climate litigation” cases. The U.S. is responsible for nearly two out of three of these. Yet neither Congress, the U.S. Constitution nor common law have exhibited much if any capacity for addressing or redressing climate change. International and regional instruments as well offer potential but little progress.
Subnational constitutions in America can help to fill the breach. There is a growing cadre of ‘climate rights’ cases that arise under state constitutions. For example, a state court in Montana recently ruled that a state law prohibiting consideration of climate impacts violates that state’s constitutionally enshrined environmental right, the Hawai’i Supreme Court has issued a series of decisions recognizing climate rights, and other state constitutions recognize rights that can arguably reach climate change. A wave of subnational climate rights cases is underway.
Much has been written about climate law and litigation yet little about subnational climate rights. This paper argues that the future engagement of climate rights in the United States is likely to occur at the subnational level based on either explicit rights to a healthy environment or on implicit implications of socioeconomic rights, such as to life, health and dignity. Part I asserts that the limits of international, regional and domestic national law create an opportunity for consideration of impactful subnational climate rights litigation in the U.S. Part II examines what I call “Environmental Climate Rights,” that is, climate rights based on constitutionally instantiated environmental rights, including at the subnational levels in Pennsylvania, Montana and Hawai’i, and sees promising if limited progress. Part III explores what I call “Socioeconomic Climate Rights,” that is, climate rights based on other constitutionally incorporated human rights, such as to life, health and dignity, and argues that there is untapped potential here. Part IV argues in favor of further exploration of subnational climate rights in the U.S.
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*Richard S. Righter Distinguished Professor of Law, Washburn University School of Law.