Monday, April 3, 2017
When I teach environmental law, I dislike teaching the material dealing with constitutional law. I am thinking, for example, of the commerce clause cases challenging the constitutionality of the Endangered Species Act and wetlands regulation, the cases on standing to bring environmental citizen suits, and regulatory takings. Students often enjoy this material, but I am embarrassed by the legal gymnastics that are required for courts to approve of federal action, to hear citizen-initiated environmental cases, and to decide them in a way that favors the broad public interest in environmental protection.
It shouldn’t be this way. To start with, the commerce clause should have nothing to do with environmental law. Do most Americans think that our national government should be able to make comprehensive laws to protect human health and the environment? I am pretty sure they do. There are many reasons that we would want the federal government to be the primary actor in environmental protection aside from the fact that economic interests are at stake. Wetlands are a valuable national resource, as are threatened and endangered species. State governments often don’t have the expertise to evaluate and protect these resources, and even if they did, would we really want all 50 states to do it themselves? For its part, standing doctrine was rewritten in the past thirty years by a few Supreme Court justices who were hostile to environmental law who wanted to keep environmental cases out of the courts. The hoops that citizen groups are required to jump through just to stay in court are ridiculous.
We really need to amend the Constitution. Perhaps the best option would be to create an express right to clean air, safe drinking water and a healthy environment. The right to a healthy environment is widely recognized in international law and endorsed by an overwhelming proportion of countries. Environmental rights are included in more than 90 national constitutions (see graphic below), and they are having significant impacts, ranging from “stronger environmental laws and landmark court decisions to the cleanup of pollution hot spots and the provision of safe drinking water.” Many U.S. states also have environmental rights provisions in their state constitutions.
While creating an environmental right seems reasonable and makes good sense to me, I think that many would say that it is out of line with the US’s constitutional tradition. They may be more open to a more limited, but still useful option: an “environmental responsibility” provision. Twenty-five years ago, one legal academic suggested the following wording for an amendment: “In all acts of government, the integrity and sustainability of natural systems shall not be impaired except to protect health and safety where no acceptable alternative exists. Maintenance, restoration, and renewability of natural systems, enhancement of environmental quality, and fairness to posterity shall be governing principles of policy.” With such a statement in the Constitution, the Supreme Court and the federal government generally would have to consider the protection of our environment as their responsibility. What a difference that could make.
And while we are amending the constitution, let's talk about the electoral college!
 D.R. Boyd, The Constitutional Right to a Healthy Environment, Environment Magazine (Jul/Aug 2012) available at http://www.environmentmagazine.org/Archives/Back%20Issues/2012/July-August%202012/constitutional-rights-full.html; See also D. R. Boyd, The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights, and the Environment (Vancouver: University of British Columbia Press, 2012).
 Audrey Wall, State Constitutions and Environmental Bills of Rights (Sept. 1, 2015) at http://knowledgecenter.csg.org/kc/content/state-constitutions-and-environmental-bills-rights
 Lynton K. Caldwell, The Case for an Amendment to the Constitution of the United States for Protection of the Environment, Duke Environmental Law & Policy Forum 1 (1991), available at available at http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1198&context=delpf.