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Washington Journal of Social & Environmental Justice

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.

In Washington, these principles can work in tandem, as they have

before, to ensure private citizens affected by climate change can seek redress.

The Washington State Constitution does not currently contain a

fundamental right to the environment. A constitutional amendment in

Washington, constructed with these tort and constitutional law principles

in mind, can: (1) support the unreasonableness of fossil fuel companies’

tortious conduct and violation of a public right; and (2) create a

private cause of action that allows private parties to directly sue private

actors under the constitutional provision itself. Under this provision, all

Washington residents would have a fundamental right to a healthy environment

and a stable climate system.

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