July 27, 2020

Juliana, Climate Change, and the Constitution

by Robin Kundis Craig

Unlike a growing number of constitutions around the world and in specific states, the U.S. Constitution provides no environmental rights. It does not mention the environment, and a long history of federal court constitutional environmental jurisprudence stands squarely against the finding of such a protection. In 1971, for example, the U.S. Court of Appeals for the Fourth Circuit dismissively refused to recognize a constitutional right to environmental protection to reinforce the newly enacted National Environmental Policy Act. Ely v. Velde, 451 F.2d 1130, 1139 (4th Cir. 1971). Over two decades later, and despite dozens of intervening cases, the U.S. Court of Appeals for the Eighth Circuit could equally boldly assert that citizens of the United States do not “have a fundamental right to an environment free of non-natural radiation.” Concerned Citizens of Nebraska v. Nuclear Regulatory Commission, 970 F.2d 421, 426 (8th Cir. 1992).

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