The Right to a Stable Climate
Common Law Remedies and Constitutional Protections in Washington State
Ella Koscher
Abstract
The climate crisis touches every corner of the globe. Climate change exacerbates the intensity of natural disasters, droughts, floods, and wildfires, and accelerates sea level rise, desertification, habitat loss, and species extinction. Billions of people, including millions of U.S. residents, are currently highly vulnerable to these impacts. The science has long established that greenhouse gases from fossil fuel use and production are a main driver of climate change, and the largest source of greenhouse gas emissions in the U.S. derives from our fossil fuel-based energy system. Various oil and gas companies produce, advertise, and distribute fossil fuels in the U.S., but have yet to be held legally liable for abetting this crisis.
Yet, parties already experiencing the harms of climate change continue to seek relief for their injuries from these companies. Prevented from bringing common law nuisance claims in federal court, harmed parties have turned to state common law tort actions for redress. Coinciding with this development, youth plaintiffs in states with a constitutional right to a healthy environment have recently achieved legal victories after alleging violations of their fundamental environmental rights. These trends demonstrate that parties harmed by climate change have two long existing legal principles to turn to for a remedy: state public nuisance tort law and state constitutional protections for violations of fundamental rights.