Would the EHR Amendment address climate change or cumulative impacts?
It depends upon how the Courts interpret the Environmental Human Rights Amendment (EHR). The first method of analysis a court uses with contested language is to look to the plain meaning. The EHR specifically includes a “stable climate” in the language of the EHR, which indicates that climate change is included under the protections of the EHR. Additionally, in the context of the EHR’s expansion of Maryland’s public trust obligations, the right to a stable climate emboldens the State to take further action on climate change adaptation and mitigation.21 This was seen very recently when Rhode Island utilized their Environmental Rights Amendment to take on twenty-one oil and gas companies and hold them liable for “causing climate change impacts that adversely affected the state’s natural resources, as well as the rights of its inhabitants’ access to and use of those natural resources in violation of the state’s Environmental Rights Amendment.”22
Further, extending the right to a healthful environment “for future generations” recognizes the detrimental long-term, cumulative effects of numerous pollution sources.23 By ensuring the state must consider future generations, the EHR would further emphasize the necessity of assessing the cumulative impacts of State actions over time.24 Addressing cumulative impacts is imperative because the Maryland Environmental Policy Act (MEPA) only requires consideration of cumulative impacts for a narrow set of circumstances.25 Most state actions (and all local actions) affecting the environment do not require a MEPA environmental analysis. Thus MEPA does not sufficiently address cumulative impact analysis.26 Additionally, many current federal and state-administered permitting schemes fail to fully consider pollution from a combination of different sources (non-point source pollution).27 Even when a permitting scheme establishes a certain threshold of pollution for individual sources, it can fail to adequately account for multiple polluting sources in a small geographic area that all fall below the pollution threshold but nonetheless aggregate to create a high concentration of pollution. The EHR could force the state to consider the aggregate environmental effects of issuing certain permits in a way that no existing regulations or laws require. The EHR would promote and help facilitate the promulgation of cumulative impact and other environmental bills. The EHR is also meant to act as a backstop for when existing legislation fails to fully address adverse environmental effects. Therefore, if cumulative impacts are detrimentally affecting a community, and existing environmental legislation does not adequately solve the problem, the EHR can bolder existing legislative frameworks and provide a basis for future environmental legislation.
States with Environmental Rights Amendments have extended their citizens the most environmental protections by supplementing their general constitutional environmental rights with more targeted pieces of legislation. New Jersey recently passed a cumulative impacts bill that targets the cumulative effects of all permitted facilities on burdened communities (defined as those communities in the bottom 33% for state median annual household income).28 New Jersey’s Cumulative Impacts Statute is specifically geared towards preventing additional polluting facilities from moving into already burdened communities. It even touches those facilities that plan to comply with permit obligations because each polluting facility, though they may be complying with laws and permits, may contribute enough pollution, in the aggregate, to overburden the surrounding community. The level of sophistication, detail, and specificity required for an environmental justice bill like the one passed in New Jersey would be difficult to replicate without an EHR to rely on, like the one proposed in Maryland. It is imperative that supplemental legislation be passed to work with the EHR and fully address the effects of cumulative impacts.
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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.
21 See Robin Kundis Craig, Adapting to Climate Change: The Potential Role of State Common-Law Public Trust Doctrines, 34 VT. L. REV. 781 850–52 (2010). 22 Barry E. Hill, Environmental Rights, Public Trust, and Public Nuisance: Addressing Climate Injustices Through State Climate Liability Litigation, 50 ELR 11022, fn 4 (2020). 23 Gardner v. N.J. Pinelands Comm'n, 593 A.2d 251, 258 (N.J. 1991). 24 See Michelle Bryan Mudd, A Constant and Difficult Task: Making Local Land Use Decisions in States With a Constitutional Right to a Healthful Environment, 38 ECOLOGY L.Q. 1, 42–43 (2011). 25 11 COMAR ch. 8, § 3 (A-B). MEPA applies only to “Proposed State Actions”, that significantly affect the environment. "Proposed State action" is defined in the Natural Resources Article, §1-301(c) as "requests for legislative appropriations or other legislative actions that will alter the quality of the air, land or water resources. It does not include a request for an appropriation or other action with respect to the rehabilitation or maintenance of existing secondary roads." The Act requires environmental effects reports only in connection with requests for legislative appropriations or legislative actions that “significantly affecting the environment, natural as well as socioeconomic and historic.” 26 See 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). 27 See e.g. Steven P. Lipowski, In Search of Further Regulation of Cattle Under the Clean Water Act: Cattle as Point Sources After Oregon Natural Desert Association, 6 WIS. ENVTL. L.J. 167, 172 (1999) (The court stated that the CWA clearly does not pertain to non-point sources, and thus cattle grazing activities here are outside the purview of the CWA). 28 See S.B. 232 (N.J. 2020).