What can a constitutional right to a healthful environment do?
The proposed Environmental Human Rights Amendment is a legal tool that can be used by Marylanders, NGO’s, local governments, and state agencies to ensure that everyone’s rights to a healthful environment are protected and enforced.
Such constitutional rights elsewhere in the US and around the world have been proven to:1
- Create an enforceable right to a healthful environment
- Strengthen state and local governments’ ability to protect natural resources
- Strengthen the passage and enforcement of environmental laws
- Promote stronger environmental regulations
- Close the gaps in environmental laws
- Act as a guardrail to prevent the most egregious forms of harm
- Promote the creation of stronger environmental regulations
- Promote environmental justice and remedy past injustices
- Establish environmental health and environmental equity as fundamental values of our society
1 David R. Boyd, The Effectiveness of Constitutional Environmental Rights, Yale UNITAR Workshop,, April 26/27, 2013
Strengthens Environmental Laws Around the World
In 78 out of 95 nations, environmental laws were strengthened after the right to a healthy environment gained constitutional status. Laws were amended to specifically focus on environmental rights, as well as access to environmental information, participation in decision-making, and access to justice. This includes all surveyed nations in Eastern Europe (19 out of 19); almost all nations in Western Europe (8/9), Latin America and the Caribbean (16/18), and Asia (12/14); and a clear majority in Africa (23/35). (Boyd, effectiveness of constitutional env rights, 2013. p 6)
Use of a Constitutional Amendment in Other States
Seven states have language in their constitutions which speak to the right to a healthful environment; three of these states have language in their Declaration of Rights. Maryland is also proposing to add the right to a healthful environment in our Declaration of Rights, so it will become Section I, Article 48. That will place this right, your right, on par with other constitutional inalienable rights like the freedom of speech and the freedom of religion.
The following are examples of how the amendment has been used in these states.
Amendment supports standing when constitutional rights have been infringed
It seems to the Court, however, that reclamation is directly tied to a clean and healthful environment. Therefore, if the legislature has failed to provide effective requirements and standards for reclamation, or if DSL, the agency in charge of the project, has allowed the project to proceed without effective reclamation requirements and standards, Plaintiffs should be able to pursue their claim [under the env rights amendment]. The constitutional provisions at issue here are not merely advisory. They mean something.15 (1994 – 15 Pub Land L Rev 219 – The Doctrine of Self-Execution and the Env Provisions of the MT St Const)
Amendment supports climate change challenges
i. Montana Court Allowed Youth Plaintiffs to Proceed with Constitutional and Public Trust Climate Claims. A Montana District Court concluded that youth plaintiffs had standing for their claims that the Montana State Energy Policy and the “Climate Change Exception” to the Montana Environmental Policy Act (MEPA) violate the Montana Constitution—which includes provisions declaring that Montana citizens possess an inalienable right to a clean and healthful environment—and the public trust doctrine. August 4, 2021 (http://climatecasechart.com/climate-change-litigation/case/11091/)
Amendment upholds the local government’s right to make land use decisions
The Amendment is about promoting and supporting sustainable development. In no state has development faltered or suffered because of the amendment.
The following two examples show how the amendment has been used by local governments in protecting their authority to decide how natural resources are used in their jurisdiction.
- Local governments as plaintiff (Robinson Township v Commonwealth of PA) – enabling local governments to stop fracking in their towns. https://www.landuselawinpa.com/court-rulings/robinson-twp-v-commonwealth/#:~:text=Robinson%20Twp.,Commonwealth%2C%20623%20Pa.&text=Act%2013%20of%202012%20was,in%20northern%20and%20western%20Pennsylvania.
- In December 2020, Marple Township Board of Commissioners voted 7-0 to deny the developer’s application due to various deficiencies and gaps in the applications, invoking the charge and spirit of PA’s Environmental Rights Amendment. Mr. Molinaro, Marple County Commissioner, invoked Pennsylvania’s Environmental Rights Amendment, citing his (and the township’s) fiduciary duty to protect their constituents’ rights to unspoiled natural resources. Mr. Molinaro pointed to the potential substantial loss of wildlife and stream habitat, threats to wetlands and downstream residents from inadequate stormwater plans, pages of deficiencies listed by state agencies and the Delaware County Conservation District, disruption of soils, wetland degradation from lack of groundwater recharge, the loss of a huge swath of tree canopy cover (coupled with a woefully inadequate and nonconforming tree replacement proposal), stream degradation, and much more.
Amendment promotes environmental justice
- Pennsylvania Supreme Court argued in landmark case that “disparate impact – of environmental degradation – is irreconcilable” with the amendment
- Governor Wolf of Pennsylvania cited the environmental rights amendment as a prime motivator and authority for his creation of the state’s Office of Environmental Justice. https://www.governor.pa.gov/wp-content/uploads/2021/10/20211028_EO_2021-07_Final_Executed.pdf
Amendment cited to prevent harm of natural resources
- In a 1999 landmark decision, MEIC v. Montana DEQ, the Montana Supreme Court ruled unanimously that Montanans’ constitutional right to a clean and healthful environment (Article IX, Section 1) is a fundamental right and one that is intended to be preventative in nature. The Montana Supreme Court wrote: “Our constitution does not require that dead fish float on the surface of our state’s rivers and streams before its farsighted environmental protections can be invoked.” The Supreme Court’s ruling ultimately says that blanket exemptions for discharging polluted water is unconstitutional unless the State can show a compelling State interest for granting such exemptions. https://meic.org/montanas-right-to-a-clean-healthful-environment/
Amendment supports stronger environmental laws and regulations
Franklin Kury (author of PA amendment in ‘70s): the Amendment has influenced the realm of state agency decision-making. The Amendment has provided a firm policy basis that is widely applied by the agencies responsible for protecting the environment in Pennsylvania: the Department of Environmental Resources, the Historical and Museum Commission, the Fish Commission, and the Game Commission.
In addition, the state legislature has passed a number of laws to implement the Amendment in Pennsylvania. For example, the amendment was cited as a prime motivation for the creation of the Pennsylvania Safe Drinking Water Act of 1984.