Right to a Clean Environment Provisions in State Constitutions, and Arguments as to A Federal Counterpart

Order Code RS20084

February 23, 1999

CRS Report for Congress

Received through the CRS Web

Right to a Clean Environment Provisions

in State Constitutions, and Arguments as to

A Federal Counterpart

(name redacted)

Legislative Attorney

American Law Division

Summary

The issue arises occasionally whether it might be desirable to amend the U.S.

Constitution to add an environmental provision -- such as one declaring an individual

right to a clean environment. Some attention was given this issue during the 1970s,

when over a dozen states adopted clean environment or other environmentally oriented

provisions in their constitutions. Our focus here is solely personal right to a clean

environment provisions and the questions they raise. Are they self-executing, or

dependent instead on implementing legislation? Do they create private rights of action?

If so, on whose behalf, for what remedies, and against what categories of defendants?

What is the standard to be enforced, and the level of proof needed to show injury? And

so on. All these issues would arise as well were a federal right-to-a-clean-environment

provision to be proposed. In addition, a federal provision would implicate federalism

concerns if its scope exceeded that of the Commerce Clause.

From time to time, the issue arises whether it might be desirable to amend the U.S.

Constitution to add some sort of environmental provision — for example, one declaring

an individual right to a clean environment. To be sure, the heyday of this idea was the

“environmental Seventies,” quite some time ago, when two unsuccessful efforts were made

in the Congress to accomplish this.1 In their wake, efforts to convince courts that there

1

According to one writer, Senator Gaylord Nelson in 1968 first proposed such a constitutional

amendment -- one that would have recognized the "inalienable right" of every person "to a decent

environment." H.R. J. Res. 1321, 90th Cong., 2d Sess. (1968). Two years later, Representative

Richard Ottinger made a second, more comprehensive attempt at federal constitutional recognition

of such a right. H.R. J. Res. 1205, 91st Cong., 2d Sess. (1970). Mary E. Cusack, Judicial

Interpretation of State Constitutional Rights to a Healthful Environment, 20 B.C. Envtl. Affairs

L. Rev. 173, 175-176 (1993).

Congressional Research Service ˜ The Library of Congress

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is already an implicit right to a clean environment in the U.S. Constitution also failed.2

Nonetheless, environmental protection and natural resource conservation were added to

several state constitutions before and during the Seventies, and the debate still surfaces

periodically whether an analog might be appropriate for the U.S. Constitution. Hence, this

brief report.

Our focus here is solely (1) state constitutional provisions asserting a personal right

to a clean environment; (2) the issues such provisions raise, particularly in the courts, and

(3) arguments for and against a comparable addition to the federal constitution. It must

be stressed that such personal right provisions are but a fraction of the entire spectrum of

environment- and natural resource-oriented provisions in state constitutions. Not

discussed in this report are other “healthful environment” constitutional provisions, such

as those that grant the state “power” to promote a healthful environment,3 or declare a

state policy (or duty of the legislature) to maintain a healthful environment.4

Similarly we do not discuss state constitutional provisions geared to conservation of

natural resources, such as those that grant the state or state legislature “power” to

conserve natural resources,5 declare a state policy (or duty of the legislature) to conserve

natural resources,6 grant citizens the personal right to preservation of natural resource

values7 or to restrain violations of natural resource conservation provisions in the state

constitution;8 or state that public natural resources are held in trust by the state for the

benefit of the people.9

Personal Right to a Clean Environment Provisions

All the state constitutional provisions creating a personal right to a healthful

environment took effect in a relatively short period, between 1971 and 1979. Full text of

each provision is given unless otherwise noted by ellipses.

2

See, e.g., Ely v. Velde, 451 F.2d 1130, 1139 (4th Cir. 1971). See also David Sive, Some

Thoughts of an Environmental Lawyer in the Wilderness of Administrative Law, 70 Colum. L.

Rev. 612, 642-643 (1970).

3

Haw. Const. art. IX, § 8; Mass. Const. art. of amend. XLIX, par. 2; Va. Const. art, XI, § 2.

4

Fla. Const. art. II, § 7; Illinois Const. art. XI, § 1; Mich. Const. art. IV, § 52; Mont. Const. art.

IX, § 1; N.M. Const. art. XX, § 21; Va. Const. art. XI, § 1.

5

Ga. Const. art. III, § VI, par. II(a)(1); Mass. Const. art. of amend. XLIX, par. 2; Va. Const. art.

XI, § 2.

6

Ala. Const. amend. 543; Alaska Const. art. VIII, § 2; Fla. Const. art. II, § 7; Hawaii Const. art.

XI, § 1; La. Const. art. IX, § 1; Mass. Const. art. of amend. XLIX, par. 1; Mich. Const. art. IV,

§ 52; N.Y. Const. art. XIV, §§ 3-4; N.M. Const. art. XX, § 21; No. Car. Const. art. XIV, § 5;

Pa. Const. art. I, § 27; R.I. Const. art. I, § 17; Texas Const. art. XVI, § 59; Va. Const. art. XI, §

1..

7

R.I. Const. art. I, § 17.

8

N.Y. Const. art. XIV, § 5.

9

See, e.g., Ala. Const. amend. 543; Hawaii Const. art. XI, § 1; Pa. Const. art. I, § 27.

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Hawaii Const. art. XI, § 9: Each person has the right to a clean and healthful environment,

as defined by laws relating to environmental quality, including control of pollution and

conservation, protection and enhancement of natural resources. Any person may enforce

this right against any party, public or private, through appropriate legal proceedings,

subject to reasonable limitations and regulation as provided by law. (Effective Jan. 1,

1979.)10

Illinois Const. art. XI, § 2: Each person has the right to a healthful environment. Each

person may enforce this right against any party, governmental or private, through

appropriate legal proceedings subject to reasonable limitation and regulation as the

General Assembly may provide by law. (Effective July 1, 1971.)

Massachusetts Const. article of amendment XLIX: The people shall have the right to

clean air and water, freedom from excessive and unnecessary noise, and the natural, scenic,

historic, and esthetic qualities of their environment. .... (Effective Nov. 7, 1972.)

Montana Const. art II, § 3: All persons are born free and have certain inalienable rights.

They include the right to a healthful environment and the rights of pursuing life’s basic

necessities, enjoying and defending their lives and liberties, acquiring, possessing and

protecting property, and seeking their safety, health, and happiness in all lawful ways. In

enjoying these rights, all persons recognize corresponding responsibilities. (Effective July

1, 1973.)11

Pennsylvania Const. art. I, § 27: The people have a right to clean air, pure water, and to

the preservation of the natural, scenic, historic and esthetic values of the environment.

.... (Effective May 18, 1971.)

Analysis

The state constitutional provisions provisions above appear not to have played nearly

as important a role in environmental protection as the extensive statutory regimes enacted

by the states. Still, these provisions have received some interpretation by the courts.12

Most court cases analyzing such state constitutional provisions, and most scholarly

commentary, begin with whether the provision is self-executing — that is, whether it can

be implemented in the absence of legislation. This issue, in turn, hinges on whether the

state constitution speaks directly to the self-executing question. Where the constitution

is silent, the decisions are mixed. In Pennsylvania, for example, the high court initially

ruled (by plurality) that the state’s environment provision was not self-executing so as to

support a state effort, on the authority of the provision alone, to curb the property rights

10

See generally Comment, Environmental Protection Based on State Constitutional Law: A Call

for Reinterpretation, 12 U. Haw. L. Rev. 123 (1990).

11

See generally John L. Horwich, Montana’s Constitutional Environmental Quality Provisions:

Self Execution or Self-Delusion?, 57 Mont. L. Rev. 323 (1996); Tammy Wyatt-Shaw, The

Doctrine of Self-Execution and the Environmental Provisions of the Montana State Constitution:

“They Mean Something,” 15 Pub. Land L. Rev. 219 (1994).

12

See generally Mary E. Cusack, supra note 1.

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of individuals.13 Three years later, however, the same environment provision was held selfexecuting in the reverse situation -- that is, where it was asserted against the state.14 It

should be noted that both these decisions focused as well on constitutional text

immediately following the right-to-a-clean-environment sentence quoted above, affixing

public trust responsibilities on the state.

Another decision, addressing a Virginia constitutional provision establishing a

Commonwealth policy to conserve historical buildings, opted for non-self-executing

status.15 Though not dealing with a right to a clean environment, our topic here, the

court's rationale was instructive. A constitutional provision is self-executing, it noted,

when it expressly so declares. In the absence of such a declaration, it said, constitutional

provisions in bills of rights, those declaratory of common law, and those that prohibit

particular conduct, are usually considered self-executing.

Where the constitutional provision expressly states a right to enforce, that statement,

of course, must be given effect. Thus, courts have assumed section 2 of Article XI of the

Illinois Constitution to be self-executing.16 Contrariwise, the Massachusetts Constitution

comes close to stating that its declared right to clean air and water is not self-executing.17

A question closely related to whether the constitutional provision is self-executing

is whether it creates a private right of action, or is merely a declaration of intent or policy.

The Illinois Constitution, while (as noted above) deemed to be self-executing, has been

held not to create any new remedies.18 The Hawaii Constitution's provision also has been

construed by a court (without discussion) to create no private right of action19 -- a dubious

result, it would seem, in light of the "Any person may enforce this right ..." language

following the sentence stating the right to a healthful environment.

If the constitution is self-executing and creates, of itself, a private right of action,

follow-up issues include who can sue (Private individuals only? Government agencies,

too?) and against whom the right may be enforced (Legislature only? Executive branch?

Private polluters?).

Courts in two states have addressed whether the constitutional right-to-a-cleanenvironment provision was intended to alter standing doctrine in the state. Official

13

Commonwealth of Pennsylvania v. National Gettysburg Battlefield Tower, Inc., 311 A.2d 588

(Pa. 1973).

14

Payne v. Kassab, 361 A.2d 263, 272-273 (Pa. 1976).

15

Robb v. Shockoe Slip Fdn., 324 S.E.2d 674 (Va. 1985).

16

See, e.g., People v. Fiorini, 574 N.E.2d 612, 625 (Ill. 1991).

17

Following the constitutional language quoted on page 3 of this report, the Massachusetts

Constitution states "The general court [i.e., legislature] shall have the power to enact legislation

necessary or expedient to protect such rights."

18

City of Elgin v. County of Cook, 660 N.E.2d 875, 891 (Ill. 1995); Morford v. Lensey Corp., 442

N.E.2d 933, 937 (Ill. App. 1982).

19

Stop H-3 Ass'n v. Lewis, 538 F. Supp. 149, 175 n.31 (D. Haw. 1982), rev’d on other grounds,

740 F.2d 1442 (9th Cir. 1984), cert. denied, 471 U.S. 1108 (1985).

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commentary in the Illinois state code explains that Art. XI, section 2 of that state's

constitution was only intended to enlarge standing.20 It does not (as noted) establish a new

remedy. More specifically, it cancels the judicial requirement that the plaintiff have

suffered “special damage” before he/she has standing to bring an action against alleged

polluting activities. That prerequisite foreclosed lawsuits by an individual who is among

many persons similarly affected by pollution. Similarly, the constitution of Hawaii

provision has been held to enlarge plaintiff standing.21

A potpourri of other issues that may arise in connection with a right-to-a-cleanenvironment provision includes:

! Does it empower administrative agencies to exceed the bounds of their statutory

authority?22

! What is the standard to be enforced? Is there to be any balancing of economic

concerns?

! What is the level of proof needed to show injury?

! What remedies are available? Injunctions? Damages?

! Is a preexisting requirement that environmental impact statements be prepared

given constitutional status?23

One commentator suggests that a constitutional right-to-a-clean-environment provision

might be useful for advancing the cause of environmental justice.24

Whether a right to a clean environment provision stands alone or is accompanied by

related provisions may be pivotal. For example, Montana's constitution proclaims a right

to clean environment, but also obligates the state and each person to maintain and improve

that environment. Read together, these provisions suggest a right of action against those

who do not “maintain and improve.”

20

The commentary follows the cited constitutional provision in the state code. See also Fiedler v.

Clark, 714 F.2d 77, 80 (9th Cir. 1983) ("legislative history of article XI, section 9 of the Hawaii

Constitution suggests the legislature was attempting to remove barriers to standing to sue"); Life

of the Land v. Land Use Comm’n, 623 P.2d 431, 441 (Haw. 1981) (accord).

21

Fiedler v. Clark, 714 F.2d 77 (9th Cir. 1983). But see Community College of Delaware County

v. Fox, 342 A.2d 468, 474 (Pa. Commw. Ct. 1975) (constitutional provision making state trustee

of natural resources does not expand standing for purposes of review actions challenging agency

decisions).

22

See, e.g., Pennsylvania Game Comm’n v. DER, 97 Pa. Commw. 78, 509 A.2d 877 ([year]) (no),

aff’d, 521 Pa. 121, 555 A.2d 812.

23

Kadillak v. The Anaconda Co., 184 Mont. 127, 602 P.2d 147 (1979) (no).

24

Neil A.F. Popovic, Pursuing Environmental Justice with International Human Rights and State

Constitutions, 15 Stan. Envtl. L. J. 338 (1996).

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Amend the Federal Constitution?

Plainly, all the issues noted above in connection with state constitutional provisions

also could be raised were a right to a clean environment proposed as an amendment to the

federal constitution. And arguably at least the major such issues should be addressed

textually to spare the affected parties and the courts a potentially long period of

uncertainty.

Beyond these issues, arguments in favor of a constitutional amendment include, first,

its considerable symbolic value. As a rhetorical flourish in congressional debate, even a

relatively undefined and non-self-executing right to a clean environment has a compelling

quality. Such a provision could also tip the balance in executive and judicial branch

decision making — again, even were the provision but a non-self-executing declaration

rather than a binding mandate.

How an amendment would relate to the Commerce Clause of the federal constitution

is particularly interesting. On the one hand, the existence of an environmental amendment

(particularly one phrased as a grant of congressional power, as well as a personal right of

action) might end the attenuated logic that modern courts indulge in order to find an

interstate commerce nexus that supports federal environmental legislation.25 On the other

hand, if an environmental amendment dispensed with the interstate-commerce foundation

for federal environmental laws, the question would arise why environmental protection

should be singled out for such coveted treatment. Why not civil rights or consumer

protection legislation as well? And of course, states might be quite vocal in opposing what

they would doubtless perceive as federal overreaching. Indeed, would the amendment

belie assertions in federal environmental statutes that the primary responsibility for

environmental protection lies with the states?

One might also ask what new protection a broadly worded constitutional provision

could add to that already contained in the thousands of pages of federal environmental

statutes and regulations now on the books? (Perhaps, though, it would inhibit

retrenchment by some future Congress.) Finally, it hardly needs to be said how difficult

it is to amend the Constitution, as compared to a statute. Thus, an environmental

amendment would have to contain some escape mechanism to ensure that it did not

become an unwanted straightjacket preventing needed flexibility in dire times.

25

See, e.g., National Association of Home Builders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997)

(regulation of purely intrastate species under Endangered Species Act satisfies Commerce Clause

by preventing destruction of biodiversity on which certain interstate commerce depends), cert.

denied, 118 S. Ct. 2340 (1998).

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