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McKenna: Climate change lawsuit in Oregon ‘a pretty big leap’


Is a clean environment a Constitutional right? A lawsuit filed by a group of 21 young people in Oregon says it is, but former Washington state Attorney General Rob McKenna says it might be an uphill battle to the Supreme Court.

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A court case arguing that the government isn’t doing enough to halt climate change has been on hold for awhile now. After the U.S. Supreme Court ruled to end a delay to the case in early November, it will now move forward in a district court in Oregon. But do these 21 youths actually have a case? If you’re looking at past cases, there’s not a lot of precedence to work from.

“No federal courts, including the Supreme Court, have ever recognized the Constitutional right to a natural environment that’s free of air pollution or water pollution,” McKenna told Dave Ross on Seattle’s Morning News.

Simply put, “it’s a stretch… This is a pretty big leap not just for climate change and addressing it, but for environmental law generally.”

The argument made in court involves a couple different tacts.

“There’s two general theories: One is based on the concept of fundamental rights, the other public trust,” said McKenna.

The first argument posits that people have the fundamental, Constitutional right to a clean environment, and the government isn’t doing enough to protect that right. The second is that the government has “violated the public trust doctrine, a legal concept that holds that the government is responsible for protecting public resources, such as land and water.”

Even without court precedence, it wouldn’t be the first time that a fundamental right was defined by the courts, and not the Constitution.

“There are other fundamental rights that didn’t exist that are not enumerated in the Constitution, but have been recognized by the Supreme Court, said McKenna. “For example the right to privacy, the right to self defense, [and] several others that have been added over the years.”

Ultimately, any significant change would likely happen as this case makes its way up through the appeals process. Can it make it all the way to Supreme Court, though?

“I think that’s a good bet,” said McKenna.

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