Is the Constitutional Amendment — Environmental Rights (HB82/SB151) a new idea? Do other states have these provisions in their constitution?
As of 2020, more than twenty states have varying forms of environmental protections located within their constitutions. The majority of those are policy declarations: “the protection of the state’s beautiful and healthful environment is hereby declared to be of fundamental importance to the public interest, health, safety and the general welfare”1; “it shall be the policy of this State to conserve and protect its lands and waters for the benefit of all its citizenry”2; or “it shall be the policy of the Commonwealth to conserve, develop, and utilize its natural resources, its public lands, and its historical sites and buildings.”3 Amendments containing policy declarations can also designate funds and order the legislature to enact laws to the requested end.
Six states have Environmental Rights provisions in their constitutions that confer to the people a substantive right. Other states use their amendment to help confer standing5, bolster existing environmental legislation6, and produce environmental wins7. The concept of an EHR (an Environmental Human Right) evolved from the substantive environmental rights enacted in the 1970s.8 Both have similar goals of environmental protection, recognizing the intrinsic benefits of a healthy and clean environment, but the EHR puts more emphasis on environmental effects as they relate to humans. Depending on its intended use, legislative comments and history, and judicial interpretation, an EHR may be a better tool for fighting certain environmental issues.
Environmental justice issues have not been the predominant focus of litigation in Pennsylvania, Illinois, or Hawaii in cases utilizing their Environmental Rights Amendments. However, scholars believe that the language of the amendments could be very effective at tackling environmental justice problems.9 An amendment focusing more on environmental problems as they relate to humans could be more effective as a way to garner support from groups other than environmentalists, such as children’s and public health advocates. Further, since most environmental problems can be framed by how they affect humans, an EHR amendment could be an effective method of solving environmental problems.
Check back next week for the FAQ Series answering the question, “How would the EHR Amendment be used to ensure environmental justice? If you have a question you would like answered, please email email@example.com.
Maryland Campaign for Environmental 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
1 N.M. CONST. art XX, § 21. 2 N.C. CONST. art. XIV, § 5. 3 VA. CONST. art. XI, § 1. 5 Historically helpful in Illinois, like in Glisson v. Marion, 720 N.E.2d 1034 (Il. 1999). 6 This occurred in Pennsylvania in Commonwealth v. Parker White Metal Co., 515 A.2d 1358 (Pa. 1986). 7 Environmentalists in Hawai’i used the amendment to require the government body deciding new power sources to consider the effects of Green House Gases. In re Hawai'i Elec. Light Co., 445 P.3d 673 (Haw. 2019). 8 See PA. CONST. art. I, §27; ILL. CONST. art. XI, §§ 1,2. 9 Neil A.F. Popovic, Pursuing Environmental Justice with International Human Rights and State Constitutions,15 STAN. ENVTL. L.J. 338, 360-61 (1996).