Constitution And Environment: Rights And Recognition

The environment is an increasingly important topic in politics, with the UNGA recently voting on a resolution for the recognition of a human right to a clean, healthy, and sustainable environment. Despite this, the environment is not explicitly mentioned in many national constitutions. In the US, for example, there is no explicit right to a clean environment in the Constitution, and efforts to persuade judges to find an implied right have not succeeded. However, six states have provisions with explicit environmental rights, and several other states have language about protecting the environment. Environmental lawmaking at the national level of government has only become important in recent decades, but the strong federal presence in recent years has made apparent the significant constitutional authority of the central government regarding the environment.

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The US Constitution does not explicitly grant a right to a clean environment

The US Constitution does set limits on the regulatory power of the federal government and the states in the context of environmental regulation. For example, the tenth amendment reserves powers for the states that are not delegated to the United States by the Constitution. This introduces constitutional limitations that may apply to environmental regulation programs. The supremacy clause is another such limitation, impacting only federal government programs.

The taxing power, admiralty power, and the power to approve interstate compacts are additional authorities relevant to environmental regulation. The taxing power can be used to impose effluent and emission fees to control pollution. The admiralty power can provide a basis for controlling pollution from ships. The approval of interstate compacts allows for the indirect imposition of federal environmental standards on compacting states, as seen in the West Virginia ex rel. Dyer v. Sims case in 1951.

While the US Constitution does not explicitly grant a right to a clean environment, some states have proposed and enacted environmental rights amendments (ERAs) within their constitutions. As of 2023, at least nine states have introduced Green Amendment legislation, guaranteeing citizens the inalienable right to clean air, clean water, and a healthy environment. Six states, including Hawaii, Illinois, and Pennsylvania, have constitutions with explicit environmental rights provisions. Several other states have language about protecting the environment, although without creating clear rights.

The absence of a constitutional right to a clean environment in the US Constitution does not imply a lack of commitment to environmental protection. The United States has expressed support for the development of a right to a clean, healthy, and sustainable environment, consistent with international human rights law. It has also taken domestic actions, such as the Clean Water Act and the Justice40 Initiative, to address environmental concerns.

The federal government has the power to regulate environmental quality

The U.S. Constitution does not explicitly grant citizens a right to a clean and healthy environment. However, it does provide the federal government with the power to regulate environmental quality, albeit indirectly. This power is derived from various sources, including the commerce clause, the taxing power, the admiralty power, and the power to approve interstate compacts. The federal government's authority in environmental matters has been strengthened by its ability to enact significant programmatic environmental framework legislation and shape a federal common law of pollution through the Supreme Court.

The commerce clause is the most important source of federal power in the environmental field. It allows the federal government to regulate activities that substantially affect interstate commerce, which can include environmental issues such as pollution control and the protection of natural resources. The taxing power provides the federal government with the ability to authorize effluent and emission fees to control pollution. The admiralty power can be used as a basis for controlling pollution from ships, and the power to approve interstate compacts allows the federal government to impose environmental standards on compacting states.

The federal government's power to regulate environmental quality is not unlimited, however. The Tenth Amendment reserves to the states powers not delegated to the United States by the Constitution, and there are constitutional limitations on the federal government's regulatory authority. For example, in Missouri v. Holland, the Court upheld the Migratory Bird Act but noted that Congress's power to enact such legislation stemmed from its treaty power rather than its standalone statutory authority.

Additionally, the U.S. Constitution's lack of an explicit right to a clean and healthy environment stands in contrast to the constitutions of several states, including Hawaii, Illinois, Massachusetts, Montana, Pennsylvania, Rhode Island, and New York. These states have provisions that explicitly guarantee environmental rights, such as the right to clean air, water, and a healthful environment. These state-level environmental protections have been used to invalidate statutes that prevent municipalities from barring hydraulic fracturing and to require states to dedicate revenues from oil and gas leases to conserving and maintaining public natural resources.

The US Constitution does not restrict state power

Secondly, the Tenth Amendment to the US Constitution, ratified in 1791, explicitly delegates powers not granted to the federal government to state governments. This amendment safeguards federalism, or the division of power between federal and state governments, and protects states' rights by limiting the federal government's ability to regulate or enforce policies on states. This amendment has been interpreted to mean that if a power is not specifically granted to the federal government, it is reserved for the states. For example, states use their police powers to regulate public welfare, education, health, and morality.

The Tenth Amendment has been invoked in several court cases, including Printz v. United States, New York v. United States, and Garcia v. San Antonio Metropolitan Transit Authority, to protect states' rights and maintain the balance of power between federal and state governments. The amendment also allows states the freedom to experiment with different ideas and programs, earning them the nickname "laboratories of democracy".

However, it is important to note that the Supremacy Clause in Article VI of the Constitution makes federal law superior to state law, and the Supreme Court has the final say in interpreting the Constitution and determining the balance of power between federal and state governments.

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Environmental rights can be in the form of a law, constitutional amendment, or UN Declaration

Environmental rights are any proclamations of human rights to environmental conditions of a specified quality. Human rights and the environment are intertwined; human rights cannot be enjoyed without a safe, clean, and healthy environment, and sustainable environmental governance cannot exist without the establishment of and respect for human rights.

Law

While the US Constitution does not explicitly grant its citizens the right to a clean environment, the constitutions of six states (Hawaii, Illinois, Massachusetts, Montana, Pennsylvania, and Rhode Island) have provisions with explicit environmental rights. For example, in 2021, the Montana First Judicial District Court found that the state's actions implicated the plaintiffs' rights under the provision of the state constitution that declares that "all persons ... have certain inalienable rights. They include the right to a clean and healthful environment."

Constitutional Amendment

In 2013, the Pennsylvania Supreme Court used the state constitution's Environmental Rights Amendment to invalidate a state statute that had prevented municipalities from barring hydraulic fracturing. The amendment required all state revenues from oil and gas leases to be used to conserve and maintain public natural resources for the benefit of future generations.

In November 2024, voters in New York will be asked to add a new section to the state constitution's bill of rights, declaring: "Environmental rights: each person shall have a right to clean air and water and a healthful environment." The implications of this amendment are not entirely clear, but it could expand citizens' ability to obtain judicial relief from environmental harms.

UN Declaration

In July 2024, the UN General Assembly declared access to a clean, healthy, and sustainable environment a universal human right. This resolution calls upon states, international organizations, and business enterprises to scale up efforts to ensure a healthy environment for all. While this resolution is not legally binding, it is expected to catalyze further action and empower people, especially those in vulnerable situations, to demand governmental action on environmental issues.

The US Constitution does not legally bind the country to a clean, healthy, and sustainable environment

This absence of a constitutional right to a clean environment stands in contrast to the constitutions of several US states, which do include explicit environmental rights. For example, the constitutions of Hawaii, Illinois, Massachusetts, Montana, Pennsylvania, and Rhode Island contain provisions with explicit environmental rights, such as the right to clean air, clean water, and a healthy environment. These state-level environmental rights amendments (ERAs) provide a substantive level of environmental protection that can be described as clean, healthy, or healthful.

The lack of a constitutional right to a clean environment at the federal level has been a topic of debate and litigation. In the 1970s, during a period of heightened environmental concern, there were calls for the inclusion of such a right in the US Constitution. However, this did not materialize. Instead, the US has pursued environmental protection through domestic laws and policies, such as the Clean Water Act, the Justice40 Initiative, and the creation of White House-level environmental justice councils.

Despite the absence of a legal right to a clean environment in the US Constitution, the US has expressed support for the development of such a right at the international level. The US has voted in favor of resolutions promoting a right to a clean, healthy, and sustainable environment, emphasizing the need for a common understanding of this right among nations. However, the US has clarified that this support does not establish legally binding requirements on the country, nor does it create a private right of action under US law.

In conclusion, while the US Constitution empowers the federal government to regulate environmental quality, it does not legally bind the country to a clean, healthy, and sustainable environment. The responsibility for establishing environmental rights and protections falls to individual states, with several states having already enacted such provisions into their constitutions. The US has also expressed support for international efforts to promote a right to a clean environment, but without creating legal obligations for itself under US law.

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