Friday, April 11, 2014

Global Environmental Constitutionalism Symposium at Widener Law

Global Env. Constitutionalism

On Friday, April 11, I blogged live from the Global Environmental Constitutionalism Symposium held at Widener Law in Delaware. A remarkable group of scholars from Australia, the Bahamas, Columbia, New Zealand, Canada, the Philippines, Italy, Israel, South Africa, France, Nigeria, and the United States converged to discuss the value of incorporating environmental rights and protections for resources explicitly within the text of national and subnational constitutions. 

Klaus Bosselmann, of the University of Auckland Faculty of Law, provided an overview of the different typologies of eco-constitutionalism, and the many different forms that it might take - from loose models focused on connections between economics and the environment (i.e. "sustainable development") to more robust models prioritizing ecological limitations and systems over protection of other rights, such as those related to economics (since sound economics depends upon a healthy environment). Germany has moved along this spectrum toward the latter, with the German Constitution "greening" over time with a number of environmental amendments. This shift, of course, has manifested in the aggressive renewable energy targets established by the German Renewable Energy Act of 2000, among other shifts in German policies related to the environment. Bosselmann believes more comparative work needs to be done between "green" constitutions globally and that society should consider exploring whether a global or international environmental constitution is emerging that would be a natural extension of increased globalization over recent decades. We have a number of global environmental agreements - is there enough cohesiveness to see a global environmental constitution emerging?

Don Anton, of the Australian National University College of Law, discussed regions of the world where environmental constitutionalism is most needed, but where it has currently not gained a foothold - that is, liberal economically advanced nations. Market economies, such as Australia, the United States, and many nations in Europe do not have environmental constitutional protections. Anton has long argued for incorporating environmental constitutionalism into these nations and doing so to protect the environment or resources per se. Having not seen sufficient action in that area, however, he argues for a pragmatic incrementalism that establishes protection of human rights to environmental quality in an environmental bill of rights detailing limits on government and private actions related to the balance of economic and environmental priorities. One of the reasons he believes this approach is more likely to succeed is because such provisions effectively extend already established and well-respected notions of due process that inform other bills of rights (like the U.S.), but they just happen to be in an environmental context. Contrast this to the Christopher Stone approach of protecting trees for their own sake, which may be a much harder argument to make, at least in the current political climate. So, Anton would focus on procedural protections for how humans interact with the environment as a first step. Procedural rights receive widespread support internationally, so an incremental move toward environmental bills of rights may be able to capitalize on this inertia.

Erin Daly, constitutional law scholar at Widener Law, notes the lack of environmental constitutionalism in the text of the U.S. Constitution, and that it relies solely on judicial interpretation for limited direct effect on environmental policy. Daly then describes the recent Robinson Township case and how the Pennsylvania Supreme Court's decision went a long way toward demonstrating the potential of environmental constitutionalism within states in the U.S. (and elsewhere).

Badrinath Rao, of Kettering University, notes that developing nations like India and China are inextricably wedded to neoliberalism, and so environmental constitutionalism is of increasing importance. The Supreme Court of India has recognized the right to a clean environment under Article 21 of the constitution. The court has also incorporated notions of sustainable development, intergenerational equity, the precautionary principle, polluter pays principles, and even environmental impact assessments within its jurisprudence. The Indian Supreme Court has made a number of rulings advancing environmental protections, yet problems remain. Government bodies and private entities have ignored environmental rights recognized by the court. Complicating the issue is different views on what "right to a clean and healthy environment" means, the fact that many supreme court mandates are difficult to implement, and ideology that has pervaded the court and governmental systems. Rao ultimately asks if the judiciary is the best institution to facilitate environmental constitutionalism, and whether a fixation with neoliberal capitalism will ultimately hinder the creation of important environmental rights.

Afshin Akhtarkhavari, of the Griffith University Law School, argues that the right to water is potentially problematic when weighed against other rights, especially in post-conflict contexts, such as South Sudan. The "right to water" discussion can actually escalate conflict itself in water scarce regions. One concern is that the rhetoric of the conversation has been co-opted by special interests who would use the argument to gain control over water resources.

Itzchak Kornfeld, of the Hebrew University of Jerusalem Faculty of Law, argues that having a right to water is largely unenforceable, but is nonetheless gaining some traction in certain areas. Western neoliberalism has given rise to calls for controlling or conquering resources, whereas aboriginal cultures maintained a very different relationship to the environment. And we are starting to see these two worldviews clash. In particular the nomadic Bedouin have survived for hundreds of years in areas of scarce water supply. Yet today they do not receive a number of recognized rights that the remaining Israeli population receives. In a recent court case, a group of Bedouin sued for water rights, and the district court ruled against them. The case worked its way up to the supreme court, which said there are three normative rights for water: 1) the right under "regular" Israeli law and customary domestic and international law, 2) a constitutional right for water (though not explicit; rather it was found under the constitutional "right to dignity"), 3) and a legislative right. The court laid such a broad foundation in order to legitimate its ruling. So by bringing in international human rights and other globally recognized rights to water, the court was trying to support what was otherwise a shaky domestic legal ground for finding a water right for the Bedouin under the circumstances of the case. This represents how international law might infuse itself into domestic constitutional law in a way that protects environmental rights.

John Dernbach, of Widener Law, talked about the recent Robinson Township case, which involved a state statute that effectively preempted and prohibited local government restrictions on fracking activities in Pennsylvania. The Supreme Court of Pennsylvania held that the preemption was a violation of the "Environmental Rights Amendment" of the Pennsylvania Constitution. The amendment states: “The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania's public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.” Historically, courts have basically ruled that the amendment only applies when the legislature invokes it. So this opinion, even though a plurality opinion as to the reasoning, reinvigorated the status of constitutional environmental rights in state constitutions in the U.S. [NOTE: Dernbach was instrumental in providing the foundation for the court's finding. He had laid the foundation many year's before the court's ruling. The court's reasoning finally caught up to his foresight regarding the appropriate interpretation of the law].

Jack Tuholske, who teaches at Vermont Law when not practicing public interest environmental law in Montana, discussed from a litigator's perspective a number of states that have environmental constitutional rights, and how they have been enforced with varying degrees of success. Tuholske tells a "tale of two states": Illinois and Montana. Each developed their constitutional environmental rights in the early 1970's, during the time of the greening of American law. Illinois has subsequently seen some pretty sloppy court decisions regarding its own provisions. In effect, the courts have limited the constitutional provision to only creating standing rights and allows any limitations on that standing to be implemented as the Illinois legislature sees fit. This has "emasculated" the provision in Illinois. Montana is a different story. The courts in Montana have actually applied strict scrutiny to statutes that might violate Montana's constitutional environmental provision. The value of these cases in Montana is far more than the court's holding because environmental constitutionalism has become part of the state's public discourse and culture going forward.

Professor Catherine Iorns Magallanes, of the Victoria University of Wellington, also focused on indigenous notions of the human relationship with the environment - that humans could not own or dominate nature, and that the western world has largely tried to undo this notion. Global environmental constitutionalism encapsulates an effort to regain original, pre-western notions of our relationship to the environment. She reiterated Don Anton's point that while it might work to protect nature itself through constitutional provisions, a more practical first step is to protect people's rights in the environment, since it is more likely to gain traction. She highlighted legislation in New Zealand that actually incorporates native Mauri notions of the human relationship with the environment (and even incorporates Mauri language) to protect a number of rivers in the nation. The legislative definition of one river states that: "Te Awa Tupua comprises the Whanganui River as an indivisible and living whole, from the mountains to the see, incorporating its tributaries and all its physical and metaphysical elements." It allows the Mauri to speak on behalf of the river. Similarly Te Urewera is a forested area in northern New Zealand. The government settled with the Mauri and recognized the forest as the ancestor of the Mauri (with the Mauri being the descendants). The actual legislation states that Te Urewera "is ancient and enduring, a fortress of nature, alive with history; its scenery is abundant with mystery, adventure, and remote beauty," that it is "a place of spiritual value, with its own mana and mauri," and that it "has an identity in and of itself inspiring people to commit to its care." This, she argues, tries to take us back to original indigenous perspectives on the relationship between humans and the environment.

Dante Gatmaytan, of the University of the Philippines College of Law, gave a presentation titled "Dead End," which expressed his view that the environmental constitutional rights provisions embedded in the Philippine Constitution have effectively become ineffectual. He argues that constitutional provisions do not matter if you do not have procedures in place allowing citizens to enforce them. In the Philippines it is standing that gets in the way. Also, other constitutional doctrines may get in the way of environmental provisions, as is the case in the Philippines, and those should be changed to allow environmental provisions to be efficacious.

A number of other fantastic speakers presented, though I was unable to attend all of the presentations and break-out sessions and capture all of those thoughts (the above summaries are also my interpretation of presenter thoughts, and may not be entirely accurate!).

As for my talk, I presented on "Structural Environmental Constitutionalism." My primary point was that much of the focus of environmental constitutionalism scholarship is on "fundamental environmental constitutionalism," which are provisions related to protecting certain resources or citizen rights in the environment. These are undoubtedly important. But structural constitutionalism is just as important, if not more - that is, how environmental governance authority is allocated across levels of government. This problem manifests particularly in federal systems, where nested constitutionally created legal systems exist. Sometimes structural environmental constitutionalism manifests in explicit constitutional text, such as in Brazil, Russia, and India where the central (federal) government is granted ultimate control over forest resources. Or it may manifest through judicial interpretation, as in the United States where federal environmental authority is construed under the Commerce Clause. Sometimes that authority is called into question, as the Supreme Court did with regard to any future "isolated wetlands" regulation that the federal government might engage in (dicta from the SWANCC and Rapanos cases). Finally, it may manifest through legislative enactments made pursuant to constitutional provisions. This happens when state governments seek to constitutionally retrieve from local governments previous grants of regulatory authority, such as when Pennsylvania attempted to preempt local government regulation of fracking (at issue in Robinson Township). Many implications arise from structural environmental constitutionalism. First, where there is an imbalance in environmental management authority across scales, correcting it can result in better management. This is the point of the emerging literature on dynamic federalism. In addition, structural adjustments to environmental regulatory authority may be more efficacious than fundamental environmental constitutionalism in some circumstances, as I have previously argued, and building off of J.B. Ruhl's work. Structural environmental constitutionalism might also bolster the efficacy of fundamental constitutionalism to the extent that latter provisions are being ignored. If levels of government previously unempowered to manage resources gain that control, then fundamental environmental provisions may be taken more seriously across all scales. Many more implications of structural environmental constitutionalism exist, and you can see the forthcoming issue of the Widener Law Review for greater detail on my arguments and the arguments of the presenters above.

Overall it was a fantastic conference and a great opportunity to hear the perspectives of the global community on this important issue. Thanks to all at Widener Law who made the conference possible.

- Blake Hudson

(David Hodas and Bob Percival present at the closing plenary):

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