Anaya Nolan
The constitutions of many countries have explicit references to environmental rights or responsibilities. However, the specific constitutional provisions that environmental laws are based on vary across different jurisdictions. For example, in the United States, while there is no explicit right to a clean environment in the Constitution, citizens have the right to sue violators and government officials to ensure compliance with environmental laws. In India, on the other hand, the 42nd Amendment to the Indian Constitution addressed environmental issues by highlighting the connection between a socialist pattern of society and environmental protection. In some US states, provisions have been enacted to explicitly grant environmental rights, as seen in the constitutions of Hawaii, Illinois, Massachusetts, Montana, Pennsylvania, and Rhode Island. These provisions have empowered citizens to take legal action against environmental harms and hold their governments accountable for their actions.
| Characteristics | Values |
|---|---|
| Environmental rights | The constitutions of six states have explicit environmental rights: Hawaii, Illinois, Massachusetts, Montana, Pennsylvania, and Rhode Island. |
| The constitutions of more than three-quarters of the countries on earth have explicit references to environmental rights or responsibilities. | |
| The US Constitution does not have an explicit right to a clean environment, but some states have provisions with explicit environmental rights. | |
| In New York, voters 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 Montana First Judicial District Court found that the state constitution declares that "all persons ... have certain inalienable rights. They include the right to a clean and healthful environment." | |
| The Indian Constitution does not specifically mention the word "environment" but the 42nd Amendment to the Indian Constitution addresses this issue by highlighting the provisions from the base, starting with the words "democratic, socialist, and republic" used in the Preamble and their connection to environmental protection. | |
| Legislative and administrative relations | The power to make rules for the country is with the Parliament, while the power to make rules for the state lies with the state government. |
| Citizen involvement | Citizens, environmental organizations, and state agencies play a critical role in environmental protection by engaging in government decision-making processes and bringing lawsuits against violators. |
| The Eleventh Amendment grants states immunity from private lawsuits, which has led to the near-total immunity of state agencies from citizen suits under federal environmental statutes. | |
| The Fifth Amendment has been used by property-rights advocates to argue that environmental regulations result in "regulatory takings" that require compensation, which can make reasonable environmental regulations prohibitively expensive. | |
| Congressional authority | Congress' constitutional power to "regulate Commerce ... among the several States" has been the legal basis for comprehensive environmental legislation, but this has been challenged in recent years. |
| Presidential Executive Orders | Presidential Executive Orders play a central role in the activities of regulatory agencies like the EPA. |
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What You'll Learn
Environmental rights in state constitutions
The constitutions of over three-quarters of countries worldwide explicitly mention environmental rights or responsibilities. However, the US Constitution does not explicitly mention a right to a clean environment, and attempts to persuade judges to interpret it as implying this right have been unsuccessful.
Nevertheless, six US states—Hawaii, Illinois, Massachusetts, Montana, Pennsylvania, and Rhode Island—have constitutions with explicit provisions for environmental rights. These provisions were mostly enacted in the early 1970s, a period of significant environmental lawmaking. In 2013, the Pennsylvania Supreme Court used the state's Environmental Rights Amendment to invalidate a statute that prevented municipalities from barring hydraulic fracturing. The amendment also required that all state revenues from oil and gas leases be used to conserve and maintain public natural resources for future generations.
Several other US states have constitutions that mention protecting the environment without explicitly creating any rights. For instance, Alaska's constitution dedicates an entire article to natural resources, stating that the legislature should provide for their utilisation, development, and conservation. In 2021, New York passed a Green Amendment, asserting that "each person shall have a right to clean air and water, and a healthful environment." This amendment could expand citizens' ability to obtain judicial relief from environmental harms.
While the Indian Constitution does not specifically mention the word "environment," the 42nd Amendment addressed this by highlighting the connection between a democratic, socialist, and republican form of government and environmental protection. This amendment was significant in dealing with environmental issues and protecting the health of all living beings.
The public trust doctrine, which asserts that certain natural resources must be preserved for the public rather than private use, has also influenced environmental rights in state constitutions. This doctrine led to the development of "atmospheric trust litigation," which aims to force governments to control greenhouse gas emissions contributing to climate change. In the US, the famous Juliana v. United States case relied on this doctrine, but the court concluded that the requested remedies were best addressed by the political branches of government.
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The role of the EPA
The U.S. Constitution does not explicitly mention the word "environment" or include a right to a clean environment. While there have been efforts to persuade judges to interpret an implied right, these have not been successful. However, the constitutions of six states, including Hawaii, Illinois, and Massachusetts, do contain explicit provisions for environmental rights. Several other states' constitutions also include language pertaining to environmental protection.
The Environmental Protection Agency (EPA) is a regulatory agency in the U.S. that plays a crucial role in safeguarding the environment and public health. The EPA works in collaboration with various entities, including businesses, non-profit organizations, and state and local governments, to address environmental issues. This collaborative approach underscores the belief that protecting the environment is a collective responsibility.
One of the key functions of the EPA is to implement and enforce environmental laws. Congress authorizes the EPA to create regulations that elaborate on the details necessary for the practical application of these laws. Presidential Executive Orders also guide the agency's activities, with the shared goal of protecting human health and the environment.
The EPA's scope of work encompasses a range of environmental concerns. For instance, the agency focuses on minimizing greenhouse gas emissions, conserving water and energy resources, promoting solid waste reuse, and mitigating pesticide risks. The EPA also provides information to the public about its activities and directs inquiries to the appropriate federal, tribal, state, or local agencies when necessary.
While the EPA plays a significant role in environmental protection, it is important to note that other agencies also contribute to this effort. For example, the U.S. Fish and Wildlife Service primarily manages the Endangered Species Act, and the Department of Energy's Office of Environmental Management addresses nuclear waste issues.
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Citizen suits
In the United States, a citizen suit is a lawsuit filed by a private citizen to enforce a statute. Citizen suits are particularly common in environmental law, where they have become a major means of ensuring compliance with environmental laws.
There are several limitations on the right of citizens to bring environmental lawsuits. One such limitation is providing a 60-day prior notice of the alleged violations to the alleged violator. Citizens may only bring citizen suits in federal court if they have "standing to sue". To establish standing, the courts have required proof of three elements. Firstly, the plaintiff must have suffered an “injury in fact”—an invasion of a legally protected interest which is (a) concrete and particularized and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical". Secondly, there must be a causal connection between the injury and the conduct complained of—the injury has to be "fairly... traceable to the challenged action of the defendant".
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State immunity from lawsuits
In the United States, the federal government, state governments, and tribal governments generally enjoy sovereign immunity, or state immunity from lawsuits. This immunity is also extended to local governments in most jurisdictions, particularly in tort. The principle of sovereign immunity in US law is inherited from English common law, where the king, at the apex of the feudal pyramid, could not be sued in his own courts.
The Foreign Sovereign Immunities Act (FSIA) of 1976 establishes whether a foreign sovereign nation may be sued in US courts, and also outlines procedures for service of process and attachment of property for proceedings against a foreign state. The FSIA provides immunity to foreign governments, including state-owned companies, shielding them from lawsuits except in relation to certain actions concerning commercial activity in the US.
While the US Constitution does not explicitly mention a right to a clean environment, six states have constitutions with explicit provisions for environmental rights: Hawaii, Illinois, Massachusetts, Montana, Pennsylvania, and Rhode Island. Several other states' constitutions also include language about protecting the environment.
In the US, the Eleventh Amendment limits federal court immunity to two specific situations. However, the Supreme Court has held that immunity is derived from the structure of the original Constitution, expanding federal court immunity beyond the Eleventh Amendment. As a result, states can invoke immunity in their own courts, even when sued under federal law. This immunity does not apply when a plaintiff alleges that a state's actions violate the federal or state constitutions.
Despite the Eleventh Amendment, the Supreme Court has ruled that states are not immune from lawsuits filed in other states. Additionally, cities and counties generally do not possess sovereign immunity.
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Commerce Clause challenges
The Commerce Clause, found in Article 1 Section 8 of the US Constitution, gives Congress the power to "regulate commerce with foreign nations, and among the several states, and with the Indian tribes". The Commerce Clause has been widely interpreted to allow the federal government to regulate interstate commerce, and it serves as a basis for comprehensive environmental legislation.
However, in recent years, there has been a resurgence of Commerce Clause challenges to federal environmental laws. These challenges argue that environmental laws exceed Congress's Commerce power. While no Commerce Clause challenge was successful in any area of law from 1937 until 1995, the court ruling in U.S. v. Lopez in 1995 established three factors for what Congress can regulate regarding commerce under the Commerce Clause. These factors include the ability to regulate the channels of interstate commerce, the instrumentalities of interstate commerce, and activities that substantially affect or relate to interstate commerce.
The court also emphasized the distinction between economic and non-economic activity, as Congress can only regulate economic activity. This ruling has raised concerns among scholars that federal environmental laws regulating intrastate resources may be at risk. Despite these challenges, the Commerce Clause remains an essential provision for enabling federal regulations, particularly in addressing environmental issues that transcend state boundaries, such as air pollution.
The modern Supreme Court has been criticized for its inconsistent approach to the affirmative and dormant commerce clause analyses. When the federal government has attempted to regulate the use of water and land under the affirmative commerce clause, the Court has emphasized the natural, non-commercial nature of the protected resources. On the other hand, when states have tried to regulate these areas, the Court has treated them as market commodities, invalidating state regulations under the dormant commerce clause.
In conclusion, while the Commerce Clause provides a constitutional basis for federal environmental regulation, it has also become a target for challenges to the scope and validity of environmental laws. These challenges reflect a conservative skepticism about broad regulatory power and the ongoing tensions between federal and state authority in environmental protection.
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Frequently asked questions
No. While the constitutions of more than three-quarters of the countries on earth have explicit reference to environmental rights or responsibilities, the US Constitution, for example, does not have an explicit right to a clean environment.
Some examples include the 42nd Amendment to the Indian Constitution, which addresses the degradation of the environment and its impact on human health, and the constitutions of Hawaii, Illinois, Massachusetts, Montana, Pennsylvania, and Rhode Island, which have provisions with explicit environmental rights.
Constitutional provisions can help to regulate human conduct and provide a framework for the smooth functioning of society with respect to the environment. They can also grant citizens the right to sue violators of environmental laws, including government officials, to ensure compliance.
In the US, the Eleventh Amendment has been interpreted as providing states with immunity from private lawsuits, including citizen suits under certain environmental statutes. Additionally, property-rights advocates argue that environmental regulations result in "regulatory takings" that require compensation under the Fifth Amendment.
