Arguments in Support of A Constitutional Right to Atmospheric Integrity

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Pace Environmental Law Review, ISSN: 0738-6206, Vol: 32, Issue: 1, Page: 56

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Valentine, Elizabeth Fuller
constitutional rights; atmospheric integrity; clean air; climate change; Constitutional Law; Energy and Utilities Law; Environmental Law; Natural Resources Law
article description
As used in this paper, “atmospheric integrity” refers to the interrelated physical, chemical, and biological processes on planet Earth that enable human and non-human life now and in the future and recognizes that modern civilization has developed within the relatively stable, current geologic period known as the Holocene. I chose to focus on atmospheric integrity, rather than more broadly on environmental integrity, because the health of terrestrial and aquatic habitats is inextricably tied to atmospheric stability. This assertion is not meant to minimize the multitude of harms impacting land and water. It is just that the magnitude of the climate crisis overwhelms all other environmental threats and will have obvious, detrimental impacts on humanity. Also, the determination of what constitutes a decent environment is a value judgment over which reasonable people will differ. Conversely, focusing on a goal that can be measured with scientific accuracy will enable courts and policy makers to confidently measure progress toward (or away from) the goal.In this paper I explore the establishment of a federal constitutional right to atmospheric integrity. I begin, in Part II, with a review of the threat presented by global climate change. In Part III, I discuss various conceptions of rights: constitutional, basic, natural, and human. I then review modes of constitutional analysis and presently-recognized state and national constitutional environmental rights in Part IV. In Part V, I review Robinson Township v. Commonwealth of Pennsylvania in which the Pennsylvania Supreme Court, for the first time, provided substantive interpretation of the environmental rights contained in the Commonwealth's constitution. Finally, in Part VI, I conclude that the Supreme Court may recognize a constitutional right to atmospheric integrity based on historical, doctrinal, prudential, ethical, and structural analysis.