Indiana Law Journal

Document Type


Publication Date

Winter 2022

Publication Citation

97 Indiana Law Journal 239 (2022)


In the dim and smokey twilight, with only bare necessities in tow, a family rushes to escape the wildfire racing toward them. Elsewhere, a household evacuates just ahead of a category five hurricane, perhaps not for the first time. Along the coastlines, countless others are resigned to looking on as their homesites erode into the inexorably rising surf. At this moment, millions of Americans are forced to reckon with the horrors of the climate catastrophe, and the number of such people who now viscerally grasp our grim climate reality grows every day. Even the judges of this nation prove no exception to this trend. Enveloped by smoke from a recent wildfire, a Washington appellate court judge remarked to a government attorney in an atmospheric trust litigation case: “I can’t go outside. If I go outside, I’m threatening my life. I have asthma, so I have to stay inside with the windows shut—I don’t have an air conditioner. Why isn’t that affecting my life and my liberty?” Amidst a full-blown climate emergency in which the fate of Humanity rests, this Article argues that our judiciary system is equipped—and is Constitutionally duty-bound—to provide the people of our nation a remedy for the extraordinary governmental malfeasance that has brought our nation, and indeed the world, this climate calamity.