Why does Maryland need an environmental human rights amendment when the language is already in MEPA?
Existing Maryland law recognizes a strong, substantive right to certain aspects of a healthful environment.52 An Environmental Human Rights Amendment (EHR), however, would provide a catchall for when there is a lapse or gap in coverage. For example, there is currently no existing Maryland state law that addresses environmental justice and cumulative impacts.53 Further, an EHR would bolster existing Maryland laws that do not sufficiently protect the environment, like the Maryland Environmental Policy Act (MEPA). MEPA contains language similar to the EHR. 54 Indeed, the Maryland Court of Appeals has endorsed that MEPA confers a “fundamental inalienable right” to a healthful environment and establishes the State as stewards of the environment.55 However, Maryland courts have also found that MEPA does not establish any substantive or legally actionable obligations upon the state.56 Further, since Maryland courts have interpreted MEPA’s applicability to only a specific set of circumstances,57 MEPA’s judicially recognized58 substantive requirements do not apply to most State legislative and executive actions. Given MEPA’s limited applicability, any rights or governmental obligations the statute recognizes are of limited import.59 Simply put, MEPA’s declarations of the policy itself do not impose any substantive or legally actional obligations on the state.60 By giving substantive legal weight to the “fundamental inalienable right” articulated in MEPA and enveloping that right in the Maryland Constitution, the EHR would clarify and expand the scope of the State’s environmental policy obligations.61
The EHR would also provide necessary guideposts for the adoption and implementation of future environmental law and policy. For example, the EHR could bolster arguments to promulgate more and stronger environmental protections, as it has done in states like Pennsylvania.62 In Pennsylvania, the Solid Waste Management Act was promulgated to help implement and further strengthen the purpose of Pennsylvania’s ERA.63 Compared to laws and regulations, amendments are broader in scope and applicability and apply generally to all State actions. Considering the scope of environmental actions authorized by the legislature and undertaken by the executive branch, a constitutional amendment would provide the State greater flexibility in implementing law and policy, given the constant applicability of the EHR. While over time, narrowly crafted legislation could accomplish similar results, a constitutional amendment provides legislative and regulatory accountability without rewriting statutory law or the regulatory code.
Lastly, amendments are more capable of standing the test of time. Unlike a statute, which can be amended with a standard majority of the legislature, a constitutional amendment requires a supermajority in order to be amended. An amendment allows this generation of legislators to more permanently secure distinctly important rights for current and future Marylanders that can protect us for a longer period of time than a statute.
Check back next week for our next installment in the FAQ Series. Would the EHR Amendment address climate change or cumulative impacts? If you have a question you would like answered, please email email@example.com.
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.
52Maryland’s Statutory Code on Environmental and Natural Recourse Laws encompasses much legislation including water pollution, hazardous substances, sanitary facilities, gas and oil drilling, mining, renewable energy requirements, and much more. MD. CODE ANN., Env’t & Nat. Res. 53See e.g. Elizabeth Shwe, MD. LCV Scorecard Faults Lawmakers on Failure of Bills Addressing Climate Change, Transportation, MARYLAND MATTERS (Oct. 15, 2020), https://www.marylandmatters.org/2020/08/24/md-needs-anenvironmental- justice-plan-advocates-say/ (“state legislators need to focus on environmental justice issues in the upcoming session, particularly on cumulative impact legislation that would require all environmental permits issued by the state to include an assessment of the potential impacts on surrounding communities. . . Maryland’s Commission on Environmental Justice and Sustainable Communities, which has recently received criticism for its ineffectiveness, needs to be ‘reimagined’ have a stronger mandate and include real voices from impacted communities”). 54While MEPA provides that “each person has a fundamental and inalienable right to a healthful environment,” this right is undercut by its charging of “each person” rather than just the State government with the “responsibility to contribute to the protection, preservation, and enhancement of the environment.” MD. CODE ANN. Nat. Res. § 1– 302(d). 55See Bausch & Lomb, Inc. v. Utica Mutual Insurance Co., 625 A.2d 1021 (Md. 1993). 56See Russell B. Stevenson Jr., The Maryland Environmental Policy Act: Resurrecting a Tool for Environmental Protection, 45 ELR 10074, 10078–80 (2015). 57See Pitman v. Washington Suburban Sanitary Commission, 368 A.2d 473 (Md. 1977); Mayor & City Council of Baltimore v. State, 281 Md. 217 (Md. 1977); Leatherbury v. Peters, 332 A.2d 41 (Md. 1975). 58See Bausch & Lomb, Inc. v. Utica Mutual Insurance Co., 625 A.2d 1021 (Md. 1993). 59See Russell B. Stevenson Jr., The Maryland Environmental Policy Act: Resurrecting a Tool for Environmental Protection, 45 ENVTL. L. REP. 10074, 10076 (2015) (noting how MEPA’s narrow applicability deprives it of “beneficial action-forcing effects”). 60See Russell B. Stevenson Jr., The Maryland Environmental Policy Act: Resurrecting a Tool for Environmental Protection, 45 ENVTL. L. REP. 10074, 10078–80 (2015). 61Amending MEPA could fix many of MEPA’s insufficiencies, and the EHR could help facilitate MEPA through the legislature. See Russell B. Stevenson Jr., The Maryland Environmental Policy Act: Resurrecting a Tool for Environmental Protection, 45 ELR 10074, 10078–80 (2015). However, amending MEPA alone will not solve Maryland’s environmental problems and will not provide the people of Maryland a right to challenge government actions like the EHR will. 62Commonwealth v. Parker White Metal Co., 515 A.2d 1358 (Pa. 1986) (“In declaring sections 606(a) and 606(b) of the Solid Waste Management Act unconstitutional, the lower court has given little, if any, consideration to the strong and fundamental presumption of constitutionality that must attend judicial review of a legislative enactment. That presumption is further strengthened in this case by the explicit purpose of the Act to implement Article I, section 27 of the Pennsylvania Constitution, a remarkable document expressing our citizens' entitlement and ‘right to clean air, pure water, and -- to the preservation of the natural, scenic, historic and esthetic values of the environment’”). 63Id.