How would the EHR Amendment be used to ensure environmental justice?
Since the proposed Environmental Human Rights (EHR) Amendment clarifies that clean air, land, and water is an inherent right of all citizens, actions with disproportionate geographic environmental impacts should come under stricter scrutiny.17 For example, Pennsylvania’s Environmental Rights Amendment’s trusteeship provision, which is similar to Maryland’s proposed EHR Amendment’s trusteeship provision, states “as trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.” In theory, these types of rights give all people protection from environmental harm and allow them to assert that right against the government. The language of the Pennsylvania provision “implies that a governmental failure to protect environmental rights for some people to the same extent it protects those rights for other people would violate the Pennsylvania constitution.”18 The language of the EHR Amendment would be expected to provide similar protections. Further, the EHR Amendment would create legally enforceable obligations for the state, as trustee, and would entitle citizens to hold the state accountable if it fails to act in accordance with those obligations. Citizens will have an easier time holding the state accountable for disproportionate impacts that cause some people to have worse air, land, and water than others.
The proposed EHR Amendment would work best to promote environmental justice if it was coupled with supporting legislation. While the EHR Amendment establishes state trust obligations and a fundamental right to a healthful environment for the general public, an environmental justice bill would be focused on the most disadvantaged communities, and, therefore, most effective at tackling environmental injustice. For instance, an environmental justice bill could specifically target cumulative impacts or otherwise lawfully permitted emissions that, in the aggregate, build up and tend to disproportionately impact low-income and minority communities.19 The proposed constitutional amendment is broad in scope and secures a general right; it is unlikely that it alone would cover specific issues such as cumulative impacts, which are environmental impacts produced incrementally by a collective of individual parties acting in compliance with permit obligations and the law. Therefore, while the constitutional amendment secures a right to a healthful environment for all persons, supporting legislation will likely be required to achieve specific environmental justice goals. To this end, an EHR would form a basis to encourage complementary environmental legislation, as it did in Pennsylvania.20
Check back next week for our next installment in the FAQ Series. Why does Maryland need a constitutional amendment, especially if the language (right to a healthful environment) is already included in the Maryland Environmental Policy Act (MEPA)? If you have a question you would like answered, please email firstname.lastname@example.org.
Maryland Campaign for Environmental Human Rights has partnered with the Environmental Law Clinic at the University of Maryland Francis King Carey School of Law to create this whitepaper answering frequently asked questions regarding this proposed amendment. This whitepaper is for educational and informational purposes only. No part of this whitepaper is intended to provide legal advice.
- Contributors: Johanna Adashek, Michael Rada, George Rice, and Michael Sammartino from the Environmental Law Clinic at the University of Maryland Francis King Carey School of Law
- Acknowledgments: The authors would like to thank Rabbi Nina Beth Cardin and the Maryland Campaign for Environmental Human Rights for their hard work on this amendment and their feedback on this project.
17 Barry E. Hill, Time for a New Age of Enlightenment for U.S. Environmental Law and Policy: Where do we go from Here?, 49 ENVTL. L. REP. NEWS & ANALYSIS 10362, 10383 (2019) (“An environmental rights amendment is essentially an additional tool in the proverbial toolbox that can be utilized to ensure environmental justice for all by not only affected individuals and communities, but also by federal, state, and local environmental regulatory agencies in their decision making processes”). 18 Neil A.F. Popovic, Pursuing Environmental Justice with International Human Rights and State Constitutions, 15 STAN. ENVTL. L.J. 338, 360-61 (1996). 19 Isaac Kort-Meade, State Sponsored Environmental Justice: New Jersey’s Cumulative Impacts Act, ARIZONA STATE UNIVERSITY LAW JOURNAL FOR SOCIAL JUSTICE, https://lawjournalforsocialjustice.com/2020/10/18/statesponsored-environmental-justice-new-jerseys-cumulative-impacts-act/ (last visited Jan. 8, 2021). 20Commonwealth v. Parker White Metal Co., 515 A.2d 1358 (Pa. 1986).