Change the System, Not the Climate: Advocacy for a Unified Circuit Court of Appeals for Environmental Litigation

Over the last 150 years, the United States’ view of the environment has experienced significant changes. The beginning of the 20th century saw the first uses of the common law to protect the environment. The 1970s brought an increasing awareness of human effects on the environment and brought about sweeping legislation intended to protect the environment. In more recent years, however, progress has stalled. Environmental law in the United States has become a quagmire, with all three branches of government seemingly unable to find a path forward. Interweaving threads of common law and statutory law have transformed environmental law into a modern-day Gordian Knot, seemingly impossible to unravel. Attempts to pass comprehensive environmental legislation have had no success.

While Congress is deadlocked, the environment continues to suffer. Environmental plaintiffs have continued to battle a reluctant judiciary, crafting increasingly nuanced methods designed to overcome precedential hurdles. The federal courts, the intended forum for national issues, are seemingly unable to adjudicate. As a result, plaintiffs have brought massive environmental suits in state courts. This wave of litigation has created a new problem: a patchwork of state judiciaries across the United States unable to agree on consistent solutions to environmental problems.

Congress should acknowledge the improbability of comprehensive environmental legislation and look to history for a solution. Congress solved remarkably similar problems in the field of patent law by creating the Federal Circuit, collapsing competing jurisdictions into a single court and unifying patent law across the country. This Comment suggests Congress should create a Unified Circuit Court of Appeals for Environmental Litigation to cut through the Gordian Knot and unify environmental law across the United States.