Helena Joyce
The constitutions of several countries have explicit references to environmental rights or responsibilities, with more than three-quarters of countries on earth mentioning them. However, the US Constitution does not explicitly mention a right to a clean environment, and attempts to persuade judges to interpret an implied right have been unsuccessful. While the US Constitution does not explicitly address pollution rules, the federal government's power to regulate environmental issues, including pollution, stems from the Commerce Clause, which treats natural resources as cross-state market goods. This clause has been interpreted by federal courts to justify federal control over various environmental pollution issues. Additionally, some US states, such as Hawaii, Illinois, Massachusetts, Montana, Pennsylvania, and Rhode Island, have provisions in their constitutions with explicit environmental rights.
| Characteristics | Values |
|---|---|
| Constitutions with explicit reference to environmental rights | The Netherlands, Germany, France, Australia, Pakistan, Nepal, Colombia, Hawaii, Illinois, Massachusetts, Montana, Pennsylvania, Rhode Island |
| Constitutions with implicit reference to environmental rights | New York |
| Constitutions with no explicit right to a clean environment | United States |
| Constitutional authority for environmental regulation | Commerce Clause, Property Clause, Supremacy Clause, First Amendment |
| Constitutional impetus for federal environmental regulation | Treating natural resources as cross-state market goods |
| Constitutional limitations on environmental regulation | State and federal governments alike |
| Constitutional doctrine for environmental law | State-federal relationship shaped by Commerce Clause authority |
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What You'll Learn
- The US Constitution does not explicitly mention a right to a clean environment
- State constitutions can include provisions with explicit environmental rights
- The Commerce Clause is a constitutional impetus for federal environmental regulation
- The EPA was established to regulate pollution in collaboration with states
- Constitutional authority can impact environmental regulation and legislation
The US Constitution does not explicitly mention a right to a clean environment
The Property Clause of Article IV, Section 3 grants Congress the authority to "make all needful Rules and Regulations" concerning federal property, as seen in the Kleppe v. New Mexico case, where it was used to uphold the Wild Free-Roaming Horses and Burros Act of 1971. Additionally, the Supremacy Clause has been invoked in cases like Burbank v. Lockheed Air Terminal, Inc. (1973) and Environmental Protection Agency v. State Water Resources Control Board (1976) to establish federal supremacy in certain areas of environmental regulation.
While the US Constitution does not explicitly mention a right to a clean environment, some states have taken initiatives to include such rights in their constitutions. As of 2023, at least nine states have introduced or passed Green Amendment legislation, guaranteeing citizens the inalienable right to clean air, clean water, and a healthy environment. Notable examples include New York, where voters will decide on adding environmental rights to the state constitution, and Rhode Island, which affirmed its citizens' constitutional right to a healthy environment.
Furthermore, the constitutions of six states, namely Hawaii, Illinois, Massachusetts, Montana, Pennsylvania, and Rhode Island, have explicit provisions for environmental rights. The Pennsylvania Supreme Court's decision in Robinson Township v. Commonwealth in 2013 set a precedent by using the state's Environmental Rights Amendment to invalidate a statute that hindered municipalities from regulating hydraulic fracturing. This decision had a significant impact on environmental law and the interpretation of constitutional rights related to the environment.
While there is no explicit mention of a right to a clean environment in the US Constitution, various court cases and state-level initiatives have played a crucial role in shaping environmental rights and protections. These efforts reflect a growing recognition of the importance of environmental conservation and the need to safeguard the health and well-being of citizens from the adverse effects of pollution and climate change.
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State constitutions can include provisions with explicit environmental rights
While the US Constitution does not explicitly mention a right to a clean environment, several state constitutions have provisions with explicit environmental rights. These include Hawaii, Illinois, Massachusetts, Montana, Pennsylvania, and Rhode Island. The constitutions of these states recognise the right to a clean and healthy environment, placing this right on a par with other fundamental rights such as free speech and freedom of religion.
The inclusion of explicit environmental rights in state constitutions is a relatively recent development, with most provisions enacted in the early 1970s during a period of heightened environmental lawmaking. However, these provisions received little attention until a 2013 decision by the Pennsylvania Supreme Court in Robinson Township v. Commonwealth. The Court used the state's Environmental Rights Amendment to strike down a state statute that prevented municipalities from banning hydraulic fracturing. This decision brought the issue of environmental rights in state constitutions into the spotlight and prompted a wave of similar lawsuits and initiatives across the country.
One notable example is Held v. State of Montana, a civil trial brought by 16 young people who alleged that the state's energy and environmental policies encouraged the use of fossil fuels, 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 "certain inalienable rights," including "the right to a clean and healthful environment." This case marked the first time a state constitution's environmental rights provision was used to directly challenge a state's environmental policies.
In addition to Montana and Pennsylvania, several other states are actively pursuing Green Amendment initiatives to enshrine environmental rights in their constitutions. These states include Arizona, California, Connecticut, Delaware, Florida, Hawaii, Iowa, Maine, New Jersey, New Mexico, New York, Texas, Vermont, Washington, and West Virginia. While these initiatives face significant challenges, including opposition from polluting industries and scepticism from some legislators, they represent a growing recognition of the importance of environmental protection and a desire to hold governments accountable for their actions impacting the environment.
The inclusion of explicit environmental rights in state constitutions has the potential to bring about systemic change by empowering citizens to seek judicial relief from environmental harms and holding governments to a higher standard when it comes to protecting and preserving the environment for future generations.
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The Commerce Clause is a constitutional impetus for federal environmental regulation
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, has been interpreted to allow the federal government to regulate interstate commerce and address environmental issues.
The Commerce Clause states that Congress has the power "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes." While the early Supreme Court cases viewed the Commerce Clause as limiting state power, the federal courts have since applied it more expansively. This broad interpretation allows the federal government to regulate activities that negatively impact the environment and affect interstate commerce. For example, the federal government can address air quality, noise, pesticides, solid waste, toxic substances, and water pollution through the Commerce Clause by treating natural resources as cross-state market goods.
The Commerce Clause is not a perfect fit for environmental regulation as it primarily focuses on the market rather than the environment. However, it has been a crucial tool for federal environmental intervention. The interpretation and application of the Commerce Clause in environmental law demonstrate the complexity of addressing a broad and natural problem through narrow and hierarchical means.
While the Commerce Clause has been essential in federal environmental regulation, it is not the only source of power for the federal government in this area. The Property Clause of Article IV, Section 3, grants Congress the authority to make all "needful Rules and Regulations respecting" public lands and has been used to uphold environmental protection acts. Additionally, Congress has unquestioned authority over navigable waters, which can be leveraged for environmental regulation.
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The EPA was established to regulate pollution in collaboration with states
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 US Environmental Protection Agency (EPA) was established in 1970 to address growing concerns about environmental issues and pollution. President Nixon played a key role in the EPA's formation, delivering a 37-point environmental action program in his 1970 State of the Union Address. The EPA was tasked with establishing and enforcing environmental protection standards, conducting research, and assisting in combating environmental pollution.
The EPA's authority to regulate pollution was further strengthened by new acts and amendments passed by Congress, such as the Clean Air Act and its subsequent expansions, which required the EPA to establish national air quality standards and address significant sources of air pollution, including automobile emissions. The Toxic Substances Control Act (TSCA) of 1976 gave the EPA the power to regulate chemical production and usage, while the Resource Conservation and Recovery Act (RCRA) of the same year tasked the EPA with setting national goals for waste disposal and environmentally sound waste management, in collaboration with states.
The EPA works with states to set and enforce standards for air and water quality and individual pollutants. As states develop their pollution control programs, the EPA provides financial and technical assistance and training. The EPA's efforts to regulate pollution have faced challenges, such as the appointment of Anne Gorsuch as EPA administrator under the Reagan administration, who sought to downsize the agency and reduce its regulatory powers. Despite these challenges, the EPA has continued to play a crucial role in protecting the environment and addressing pollution issues in collaboration with states.
While the US Constitution may not explicitly guarantee a right to a clean environment, the establishment of the EPA and the passage of various environmental protection acts demonstrate a recognition of the importance of addressing pollution and environmental concerns at the federal level, in collaboration with state governments.
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Constitutional authority can impact environmental regulation and legislation
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 constitutions of six states—Hawaii, Illinois, Massachusetts, Montana, Pennsylvania, and Rhode Island—do have provisions with explicit environmental rights. Several other states' constitutions also include language about protecting the environment, even if they do not create any clear rights.
The Tenth Amendment of the US Constitution grants states all powers not specifically delegated to the federal government, which includes broader statutory powers over environmental issues. This has been used to argue that federal environmental regulation impinges on "traditional areas of state and local authority", such as land use or public health. However, federal authority over environmental policy is often justified by its ability to deal with the unique features of environmental problems. The federal government's power to regulate environmental issues is derived from various sources, including the Commerce Clause, treaty power, property power, and spending power.
The Commerce Clause, which gives Congress the power to regulate commerce among the states, has been interpreted broadly by the courts to justify federal control over a wide array of environmental issues, including air and water pollution. The federal government can also draw on its treaty power to implement environmental quality and conservation measures, such as the Migratory Bird Act of 1918. The property clause of Article IV, section 3, gives Congress the power to make all "needful Rules and Regulations respecting" public lands, as seen in the Wild Free-Roaming Horses and Burros Act of 1971.
The taxing power and the power to approve interstate compacts also play a role in environmental regulation. The taxing power can be used to authorize effluent and emission fees to control pollution, while interstate compacts can be used to impose federal environmental standards on compacting states, as seen in West Virginia ex rel. Dyer v. Sims (1951). Additionally, the Supremacy Clause of the Constitution establishes federal law as "the supreme Law of the Land," rendering inconsistent state laws or regulations invalid. This was demonstrated in Burbank v. Lockheed Air Terminal, Inc. (1973), where the Court concluded that federal legislation, including the Noise Control Act of 1972, took precedence over local noise ordinances.
While the federal government has significant authority in environmental matters, state and local action are also crucial for effective environmental protection. States have priority jurisdiction over the regulation of private and public property, conservation, protection, and land use. State innovation and ingenuity can fill the gap when the federal government fails to lead on critical environmental issues. However, opponents of state-level environmental protection argue that federal law or the existence of federal authority leaves no room for state action.
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Frequently asked questions
The US Constitution does not explicitly mention a right to a clean environment, and efforts to persuade judges to find an implied right have not succeeded. However, the federal government's power to regulate environmental pollution stems from the Commerce Clause, which treats natural resources as cross-state market goods.
Yes, there are several examples of pollution rules being applied based on constitutional interpretations. One example is the Clean Air Act, which has been at the centre of state-federal tensions and a landmark 2021 Supreme Court Case, West Virginia v. EPA. Another example is the case of Burbank v. Lockheed Air Terminal, Inc. (1973), where the Court concluded that federal legislation, including the Noise Control Act of 1972, reflected a congressional intention to regulate aircraft noise.
Yes, the constitutions of six states explicitly mention environmental rights: Hawaii, Illinois, Massachusetts, Montana, Pennsylvania, and Rhode Island. Several other states' constitutions also include language about protecting the environment, and some states have passed relevant amendments, such as New York, which added a section declaring that "each person shall have a right to clean air and water and a healthful environment."
