TOWARD A CLIMATE-CONSCIOUS CONSTITUTION

This Note argues that the allocations of power within the federal Constitution’s separation-of-powers framework hinder eﬀective governance of environmental issues. The true problem is more than the sum of its parts: Several key failings of domestic environmental law result not from the shortcomings of any given statutory scheme but from the relationship between such statutory schemes, the boundary-defying and factually messy nature of environmental problems, and the sovereignty allocations within our Constitution’s structure. These mismatches allow federal actors to jeopardize American lives with impunity and risk the breakdown of both the nation’s constitutional order and the rule of law. Engaging with two environmental issues that have caused escalating harm to the public since the 1970s—wetland degradation and climate change—this Note argues that a federal Environmental Amendment is necessary to enable environmentally sound governance.

The full text of this Note can be found by clicking the PDF link to the left.

* J.D. Candidate 2026, Columbia Law School; Symposium & Book Review Editor, Columbia Law Review. Thank you to Professor Michael Gerrard for invaluable feedback and guidance throughout the drafting process, to Professors Jessica Bulman-Pozen and Katharine Young for helpful conversations, and to the editors of the Columbia Law Review for excellent editorial support. All errors and opinions are my own.

Introduction

On September 6, 1910, Thomas Stubbs fell ill with typhoid fever and was unable to work for twelve weeks. 1 Stubbs v. City of Rochester (Stubbs II), 124 N.E. 137, 138 (N.Y. 1919). The cause? Drinking contaminated water. A missing valve in Rochester’s public water system caused city residents to drink contaminated water for three months. 2 Id. at 137–38. Stubbs later sought to recover damages, arguing that the city caused his illness by negligently failing to protect its water supply from contamination. 3 Id. at 137.

The trial hinged on factual causation, and Stubbs provided a nearly airtight case: Though he could not prove that he had not contracted typhoid from a different source, he provided water samples, expert testimony, behavioral and statistical evidence, and fifty-eight witnesses who had contracted typhoid during the same period after drinking water from the same part of the city. 4 Id. at 137–40. The city health commissioner had even issued a boil water advisory and shut down the water system for several days due to known contamination. 5 Id. at 138. While the jury found Stubbs’s evidence convincing, the intermediate appellate court disagreed. Because some people in Rochester had contracted typhoid from other sources, and because Stubbs was unable to prove that he had not contracted it elsewhere, the court set the jury’s finding aside as “conjecture and speculation.” 6 Stubbs v. City of Rochester (Stubbs I), 148 N.Y.S. 804, 808 (App. Div. 1914) (lower court decision).

This case provides an early example of the mismatch between the standards courts use in resolving societal conflicts and the factual uncertainties inherent in environmental harms. Stubbs ultimately succeeded: A divided New York Court of Appeals reversed, holding that such a strict proof standard would make recovery impossible. 7 Stubbs II, 124 N.E. at 140 (“[T]he evidence disclosed that typhoid fever was caused by sources unknown to medical science . . . . [T]o prevail plaintiff would be required to eliminate sources which had not yet been determined or ascertained.”). Jurisprudence and legislation have since clarified the causation standards applicable in myriad environmental claims, but environmental harms remain complex and hard to prove definitively. 8 In the classic example of a now-ill plaintiff exposed to a toxic substance, courts require a level of certainty that can be nearly impossible to achieve unless traceable to an isolable incident of exposure to the specific pollutant. See Kristin E. Schleiter, Proving Causation in Environmental Litigation, 11 Virtual Mentor 456, 456 (2009) (describing several difficulties associated with proving causation, including limited scientific knowledge about “the toxicity of many substances,” gaps in understanding of “how substances move through air, soil, and water,” and traceability issues). Plaintiffs seeking relief from real environmental harms continue to collide with the limitations of the judicial system; questions of justiciability, redressability, and attribution often frustrate relief. 9 See infra section II.B (discussing Juliana v. United States, 947 F.3d 1159 (9th Cir. 2020)).

This disconnect between environmental harms and legal remediability extends beyond the judicial system to the overall allocations of power within the nation’s governmental structure. The Constitution provides one federal government of limited, enumerated powers and reserves all other sovereign powers to the states. 10 U.S. Const. amend. X. While the sovereign powers of tribal governments are not reflected in this paradigm, they often oversee the execution of environmental laws on their lands. See, e.g., 33 U.S.C. § 1377(e) (2018) (authorizing the EPA Administrator to treat qualifying tribal governments as states for the purposes of certain Clean Water Act provisions); 40 C.F.R. § 123.31 (2024) (providing for tribal assumption of Clean Water Act authority). It then separates that federal government’s powers into three coequal branches. 11 See U.S. Const. arts. I–III. This structure does not itself hinder effective environmental governance; 12 See infra note 284 and accompanying text (highlighting Massachusetts as an example of sound environmental governance within a strict separation-of-powers framework). the problem stems from the allocations of key sovereign powers within that separation-of-powers structure—both vertically and horizontally. 13 See infra notes 202, 214 and accompanying text (elaborating on this distinction).

Vertically, the sovereign powers that directly address some necessarily interstate environmental issues facing the nation today—for one, wetland degradation—are traditionally the province of the states. 14 See infra section II.A. While the Congresses that have enacted federal environmental statutes have relied on the commerce power with some success, 15 See U.S. Const. art. I, § 8, cl. 1, 3 (“The Congress shall have Power . . . [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes . . . .”); see also infra note 30 and accompanying text (discussing the partial success of federal environmental statutes). this grounding has limited both the laws they have been able to enact 16 See infra note 310 (discussing the Migratory Bird Treaty Act of 1918, 16 U.S.C. §§ 703–712 (2018)). and the way those laws are now interpreted. 17 See infra section II.A (discussing Sackett v. Env’t Prot. Agency, 143 S. Ct. 1322 (2023)). More importantly, these statutes’ implementation has utterly failed to shield the nation from widespread ecosystem breakdown and the climate crisis. 18 See infra Part I.

Horizontally, justiciability barriers hamper litigation to force federal greenhouse gas (GHG) emissions reduction in Article III courts, despite decades of inaction at the scale of the problem and despite the grave, well-documented harms such inaction causes to claimants. 19 See infra section II.B (discussing Juliana v. United States, 947 F.3d 1159 (9th Cir. 2020)). In recent years, even for justiciable claims, the judicial branch has curbed agency flexibility to perform basic environmental governance under relevant statutory authority. 20 See infra note 200 and accompanying text.

This Note reframes the debate about federal environmental inaction by putting these structural issues in conversation with each other. It argues that the true problem is more than the sum of its parts: Several key failings of domestic environmental law result not from the shortcomings of any given statutory scheme but from the relationship between such statutory schemes, the boundary-defying and factually messy nature of environmental problems, and the sovereignty allocations within the nation’s vertical and horizontal separation-of-powers structure. This structural mismatch allows federal actors to jeopardize American lives with impunity and risks the breakdown of both the nation’s constitutional order and the rule of law. 21 See infra notes 300, 304, 311, 319 and accompanying text (illustrating these risks in detail).

Part I serves as a primer on the factual backgrounds and domestic legal frameworks relevant to wetlands management and GHG emissions. Part II delves into the compounding separation-of-powers-induced governance challenges plaguing these issue areas: the vertical sovereignty problem of grounding federal intrastate wetlands protection in the commerce power and the horizontal justiciability barriers that hamper litigation to force federal GHG reduction. Part III concludes by calling for a constitutional Environmental Amendment, reallocating key sovereign powers to enable effective federal environmental governance.