The Constitution's Take On Pollution

The constitutions of more than three-quarters of the countries on earth have explicit references to environmental rights or responsibilities. However, the US Constitution does not explicitly grant citizens the right to a clean environment. While the federal government has the power to regulate environmental quality, it does not have explicit constitutional backing to address pollution. Several states, including Hawaii, Illinois, Massachusetts, Montana, Pennsylvania, and Rhode Island, have provisions with explicit environmental rights, and several other states have language about protecting the environment.

The US Constitution does not explicitly address pollution or environmental rights

In the US, some states have taken the initiative to include environmental rights in their constitutions. For example, the constitutions of Hawaii, Illinois, Massachusetts, Montana, Pennsylvania, and Rhode Island contain explicit provisions for environmental rights. Additionally, several other states' constitutions include language about protecting the environment, even if it does not create clear rights. These provisions were mostly enacted in the early 1970s, a period of significant environmental lawmaking.

Despite the lack of explicit constitutional recognition, environmental rights have been pursued through the court system. In the Juliana v. United States case, plaintiffs sought to compel the federal government to reduce the nation's greenhouse gas emissions. While the district court in Oregon initially seemed favourable, the Ninth Circuit ultimately concluded that the plaintiffs lacked standing. Similarly, in Held v. State of Montana, 16 young people alleged that the state's policies encouraging fossil fuel use harmed them by contributing to climate change. The Montana First Judicial District Court found that the state's actions violated the plaintiffs' rights under the state constitution, which guarantees a "clean and healthful environment".

The absence of explicit environmental rights in the US Constitution has implications for addressing climate change and environmental crises. While some states have taken steps to include environmental rights in their constitutions, the country lacks a unified, national approach. This differs from other countries, where supreme courts have issued sweeping decisions to address climate change, and where constitutions contain provisions to systematically tackle these issues.

Some states have provisions with explicit environmental rights

The constitutions of several states include provisions that explicitly outline environmental rights. Notably, six states—Hawaii, Illinois, Massachusetts, Montana, Pennsylvania, and Rhode Island—have constitutions with explicit environmental rights provisions. These provisions were primarily enacted during the early 1970s, a period marked by significant environmental lawmaking.

One notable case involving Montana's environmental rights provisions is Held v. State of Montana. In this case, 16 young plaintiffs alleged that the state's policies encouraging fossil fuel use harmed them by increasing greenhouse gas emissions and exacerbating climate change. The Montana First Judicial District Court upheld the plaintiffs' rights under the state constitution, which guarantees "certain inalienable rights," including "the right to a clean and healthful environment."

Similarly, Pennsylvania's constitution includes an Environmental Rights Amendment. This amendment was utilised in the 2013 Robinson Township v. Commonwealth case, where the state Supreme Court invalidated a statute that prevented municipalities from barring hydraulic fracturing. The court's decision mandated that revenues from oil and gas leases be directed towards conserving and maintaining public natural resources for future generations.

In addition to the six states mentioned above, New York is also taking steps towards recognising environmental rights. In November 2023, voters will decide on adding a new section to the state constitution's bill of rights, declaring that "each person shall have the right to clean air and water and a healthful environment." This amendment has already passed both houses of the state legislature and is expected to expand citizens' ability to seek judicial relief for environmental harms.

Furthermore, at least nine other states are considering introducing Green Amendment legislation in 2023, guaranteeing the right to a healthy environment. States such as Hawaii, Nevada, and New Mexico are proposing to include the right to a healthy and stable climate, while Connecticut, Nevada, New Mexico, and Texas aim to ensure that the right to a healthy environment is enforced equitably, regardless of race, income, or geography.

The commerce clause grants federal power to regulate environmental issues

The US Constitution does not explicitly mention a right to a clean environment, and efforts to persuade judges to find an implied right have been unsuccessful. However, the Commerce Clause, found in Article 1, Section 8, Clause 3 of the Constitution, grants federal power to regulate environmental issues. This clause gives Congress the power "to regulate commerce with foreign nations, among states, and with the Indian tribes".

The Commerce Clause has been interpreted to allow the federal government to regulate interstate commerce, including environmental issues that cross state lines. For example, the federal government can regulate air quality as air is not treated as a natural resource under the law, and safe, healthy air is not considered a right. By treating natural resources as cross-state market goods, the Commerce Clause serves as a basis for federal environmental regulation.

The Supreme Court has played a significant role in interpreting the scope of the Commerce Clause. In the 1995 case United States v. Lopez, the Court attempted to limit Congress's broad legislative mandate under the Commerce Clause by interpreting it more conservatively. The Court established that Congress can only regulate the channels of interstate commerce, the instrumentalities of interstate commerce, and activities that substantially affect or relate to interstate commerce. This case set a precedent for distinguishing between economic and non-economic activities, as Congress can only regulate economic activities.

Despite the limitations highlighted in United States v. Lopez, the Commerce Clause has continued to serve as a basis for federal environmental regulation. In Gonzales v. Raich, the Supreme Court returned to a more liberal construction of the clause in relation to intrastate production, upholding federal regulation of intrastate marijuana production.

While the Commerce Clause grants federal power to regulate environmental issues, it also sets limits on the regulatory power of the states. The tension between federal and state authority in environmental regulation was evident in the 2021 Supreme Court case West Virginia v. EPA, which gave significant power to regulate environmental pollution to the states. This case highlighted the ongoing controversy regarding the balance of power between the federal government and the states under the Commerce Clause.

The supremacy clause shelters federal facilities from state permit requirements

The Supremacy Clause, found in Article VI, Clause 2 of the U.S. Constitution, establishes the supremacy of federal laws, regulations, and treaties over conflicting state laws. It was included in the Constitution as the Articles of Confederation, which governed the United States from 1781 to 1789, lacked a similar provision. This often resulted in federal statutes not binding state courts, leading to a lack of power for the central government.

The Supremacy Clause, a founding principle in U.S. constitutional law, provides a balance between the federal government and state governments. It designates the Constitution as the "supreme law of the land," and state courts are bound by it. This clause has been applied in various ways by the Supreme Court, including in cases involving environmental regulation.

In Hancock v. Train (1976) and Environmental Protection Agency v. State Water Resources Control Board (1976), the Court held that the Supremacy Clause sheltered federal facilities from state permit requirements imposed by state governments pursuant to the Clean Air Act and the Federal Water Pollution Control Act, respectively. This was based on the principle of field preemption, where federal legislation in certain fields automatically displaces state laws in those same fields.

The Supreme Court has also held that only specific and "unmistakable" acts of Congress can trigger the Supremacy Clause. For example, in Commonwealth Edison Co. v. Montana (1981), the Court ruled that a Montana tax on coal did not "frustrate" federal energy policy, and thus, the state law was not overturned under the Supremacy Clause.

The Supremacy Clause has been interpreted as a conflict-of-laws rule, giving priority to certain federal acts over conflicting state acts. It has been a cornerstone of the United States' federal political structure, providing assurance of finality in governmental decision-making and preventing political chaos.

State constitutions could play a role in decarbonizing the economy

The US Constitution does not explicitly address environmental rights or grant citizens the right to a clean environment. However, it does provide the federal government with the power to regulate environmental quality and set limits on the regulatory power of states. While the US Constitution does not explicitly mention the environment, several state constitutions have provisions with explicit environmental rights. These include Hawaii, Illinois, Massachusetts, Montana, Pennsylvania, and Rhode Island.

State constitutions could play a vital role in decarbonizing the American economy. The threat of climate change demands far-reaching, systematic changes to the global economy and how governments worldwide set environmental policies. Many countries' supreme courts have issued bold decisions in the climate change arena, forcing governments to comply with commitments under agreements like the Paris Agreement and recognizing environmental rights.

In the US, courts are playing an increasingly important role in enforcing states' environmental rights amendments. For example, in Montana, a civil trial will test the meaning of the state constitution's right to a "clean and healthful environment." Similarly, in New York, a community group relied on the state's amendment to challenge the placement of a landfill, and the court opined that it would have enforcement power if a violation was found.

State constitutional amendments can set environmental policies to decarbonize the economy. For instance, Pennsylvania's Green Amendment has imposed robust requirements on the government to honor the public trust and confirmed that individuals can sue directly under the amendment. As a result, proceeds from state leases for natural resource extraction must be allocated to restoring the environment.

By adapting principles from nineteenth-century state constitutions that affected the environment through resource allocation, land management, and water rights, state constitutions can contribute to decarbonization efforts and address the absence of a clear role for American constitutions in averting climate change.

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