This Comment focuses on the merits of the due process arguments for and against judicial recognition of a fundamental right to a sustainable climate. Under the doctrine of substantive due process, recognizing such a right as fundamental would subject government action that advances anthropogenic climate change — or, potentially, government inaction that fails to mitigate it — to the elevated strict scrutiny standard. This heightened level of scrutiny would pave the way for courts to compel the federal government to take actions needed to preserve a stable climate for current and future generations.
Section II of this Comment reviews the current state of the climate threat, the historical application of substantive due process in federal court, the modern cases seeking judicial recognition of a fundamental right to a sustainable climate, the public trust doctrine as it relates to the Constitution, and prior efforts to protect the environment through the substantive due process doctrine. Section III analyzes the merits of substantive due process arguments both in favor of and against recognizing the right to a sustainable climate as fundamental.