How States Can Adapt to Climate Change Through State Constitutional Amendments

Abstract

Climate change has already begun to impact the world, and some of these effects are irreversible. Fossil fuel emissions released into the atmosphere by humans are creating a greenhouse effect, trapping heat in the atmosphere and warming the planet (US Global Change Research Program, 2018). Recent climate change research indicates that at least 2-3°C of climate warming above preindustrial levels is likely. The impacts of such warming will be significantly worse than in a world warmed by less than two degrees (Raftery, Zimmer, Frierson, Startz, & Liu, 2017). The United States is not immune to these impacts and will need to strengthen efforts to adapt to climate change in the coming years. Individual states will experience impacts unique to their regions. To date, states have passed laws and created climate action plans to either attempt to reduce their emissions and mitigate climate change or to begin to adapt to climate change impacts (Center for Climate and Energy Solutions, 2019). These are important steps that states should take towards protecting their citizens and resources. Another, often ignored, option is to adapt to inevitable climate impacts through tailored state constitutional amendments. My hypothesis is that state constitutional amendments provide one underappreciated approach to regional climate change adaptation. I intend to suggest language that these states can use in future amendments. In exploring this hypothesis, I will answer two main questions. First, I ask how states can protect their interests using existing constitutional provisions. In order to answer this first question, I will examine constitutions for every state that includes an environmental provision or provisions. Next, I will research the most pressing climate change impacts that threaten these states. Once I have this information, I will analyze the language of the environmental provisions in each of these states to see how that language aligns with the state’s regional interests (e.g., does California’s constitutional language bolster protection of forests given an increased threat of wildfire?). I will select several examples where language and impacts are aligned as well as where they are not, and I will suggest language that can strengthen regional protections for both scenarios. My second question will address states that have no environmental provisions. Environmental provisions from other state constitutions can be used as examples by states that do not include them when writing climate change adaptation provisions. Drafters can also use constitutional language that stems from positive rights movements, because climate change adaptation provisions will generally be written as positive rights, which mandate that government protect them from nongovernmental dangers (e.g., environmental rights, workers’ rights, education rights). By analyzing successful and unsuccessful positive rights campaigns I expect to find that past strategies used to amend constitutions are applicable to modern attempts to amend constitutions for climate change adaptation.