Climate Justice and the Right to a Healthy Environment: State Constitutions as Sites of Resistance

This post is part of a series related to Teaching Environmental Law in Context, a recent book by Member Scholars Rebecca Bratspies and Carmen Gonzalez.

When Carmen Gonzalez and Rebecca Bratspies invited me to comment on their recent textbook Teaching Environmental Law in Context, their gesture signaled something vital: perspectives that environmental law has too often excluded — such as my work on Black Queer Feminist Ecology — belong in the conversation about how we train the next generation of environmental lawyers.

That conversation has never been more urgent. We are living through a climate crisis — not merely "change" — while federal environmental protection undergoes systematic retrenchment. The U.S. Supreme Court's invocation of the "major questions doctrine" in West Virginia v. EPA and the Trump administration's dismantling of federal climate mitigation and adaptation measures have made the traditional path to federal climate action appear closed.

For students encountering this landscape, the impulse toward despair is understandable — and strategically cultivated. As the textbook explains, the same interests that funded decades of climate denial have pivoted to funding the message that it is already too late. Climate “doomism” is not grief; it is a tactic designed to produce paralysis.

But the textbook's most profound contribution is its refusal to stop at the federal dead end. Chapters 12 ("Teaching Climate Change") and 13 ("The Right to a Healthy Environment and State Constitutional Law") pivot structurally toward the spaces where the ground is actually shifting. That pivot demands we reckon with what Bratspies and Gonzalez have called the "unbearable whiteness" of environmental law.

This is not simply about demographic representation; it refers to an epistemological framework that maintains racial inequity by masking environmental disparities under seemingly neutral metrics, prioritizing aggregate air quality numbers over the question of who is breathing poison. When environmental statutes ask, "Is the overall air quality acceptable?" rather than "Who is suffering?", they perpetuate the value-hierarchical dualisms — subject versus object, human versus nature, valued versus disposable — that organize carbon capitalism itself.

As Gonzalez and I have explained in other works, carbon capitalism is a system driven by the relentless pursuit of profit through fossil fuels, rendering the environment and marginalized communities as “sacrifice zones.” These dualisms are not incidental to the crisis; they are its operating logic.

The textbook's discussion of the "syndemic" — the simultaneous collision of climate disruption, economic injustice, and structural racism — points to this same phenomenon from a different angle. It names the reality that those least responsible for emissions suffer the most severe impacts. The stories of Isle de Jean Charles, Newtok, and Kivalina are not just illustrations of climate impacts; they are illustrations of who the system is designed to abandon first. The emphasis on displacement makes this concrete: when a community is forced from its land, it is not just a logistical challenge but a rupture in kinship ties to place and ancestors.

This is where the textbook's pivot to state constitutionalism becomes more than a legal strategy. The core insight of Chapter 13 is this: environmental statutes generally seek to maximize quality in the aggregate, while human rights law demands special attention to those most vulnerable. Statutory law asks whether conditions meet a threshold; human rights law asks whether a specific community is being treated with dignity. This is not a technical distinction; it is a different moral universe.

We see this universe taking shape in the success of Held v. Montana, where 16 youth plaintiffs argued that a statute prohibiting agencies from considering climate impacts violated their constitutional right to a clean and healthful environment. The Montana Supreme Court affirmed 6–1, ruling that this right includes a life-sustaining climate and that the plaintiffs, invoking a substantive constitutional right, "need not distinguish their harm from that of the general public." That standing evolution is critical: it dismantles the "special injury" rule that has long shielded environmental injustice. The human rights frame says the opposite — everyone is harmed, and that is precisely why judges must act. Similarly, Navahine v. Hawai'i Department of Transportation secured a settlement recognizing the constitutional right to a life-sustaining climate.

Yet we must remain pragmatic. State courts are not saviors; they operate within the same systems of marginalization that produced the crisis. There is no guarantee they will deliver justice, particularly as federal preemption looms. Six states have explicit constitutional environmental rights; 44 do not. A student in Texas faces a very different landscape than one in Montana.

But state courts remain critical levers — places where the ground shifts enough to pull for equity. Chapter 13's mapping of implicit rights — the right to life, dignity, and bodily integrity available even in states without explicit environmental provisions — reveals a web of overlapping protections that creative lawyers can weave together. The Michigan Supreme Court's decision in Mays v. Governor of Michigan, holding that the Flint water crisis violated the constitutional right to bodily integrity, demonstrates that these rights are tools that communities can wield when the statutory framework fails them.

This has direct implications for how we teach. The textbook's exercises challenge students to interrogate whether procedural inclusion yields accountability or merely lets experts speak for communities while the state evades responsibility — and to ask why technologies like carbon capture and storage, which repeatedly underperform, maintain their allure and who benefits. These exercises train future attorneys to spot levers of change precisely because federal protection is retreating. They learn that standing is not an insurmountable barrier but a contested gate that some state courts have begun to open.

As I have argued in my scholarship, the marginalization of certain groups — queer, disabled, Indigenous, racialized, gendered — is not accidental but intrinsic to the extractive logics that drive the climate crisis. But the alternative to doom is not optimism. It is kinship: the recognition that the liberation of the so-called "subhuman," the sacrifice zones, and the more-than-human are the same project.

The victories in Montana and Hawai'i are not salvation; they are proof of concept — evidence that when we center the dignity of those most harmed, we find a pathway that aggregate metrics will always obscure. The textbook gestures toward this constantly: in its discussion of Indigenous displacement, in its attention to who gets left behind in disaster recovery, in its insistence that those who contributed least bear the heaviest burden.

The goal is not to promise redemption through litigation. It is to prepare lawyers who understand that law is a terrain of contestation, not a monolith of power — and to equip them to build resilience in the cracks of the system until we can build something whole outside of it. In doing so, we move from a jurisprudence of extraction to one of kinship, where the law serves not just the abstract "public interest," but the specific, lived realities of our shared survival.