Right to a Clean Environment Provisions in State Constitutions, and Arguments as to A Federal Counterpart

Right to a Clean Environment Provisions in State Constitutions, and Arguments as to A Federal Counterpart

Order Code RS20084
February 23, 1999
CRS Report for Congress
Received through the CRS Web
Right to a Clean Environment Provisions
in State Constitutions, and Arguments as to
A Federal Counterpart
(name redacted)
Legislative Attorney
American Law Division
Summary
The issue arises occasionally whether it might be desirable to amend the U.S.
Constitution to add an environmental provision -- such as one declaring an individual
right to a clean environment. Some attention was given this issue during the 1970s,
when over a dozen states adopted clean environment or other environmentally oriented
provisions in their constitutions. Our focus here is solely personal right to a clean
environment provisions and the questions they raise. Are they self-executing, or
dependent instead on implementing legislation? Do they create private rights of action?
If so, on whose behalf, for what remedies, and against what categories of defendants?
What is the standard to be enforced, and the level of proof needed to show injury? And
so on. All these issues would arise as well were a federal right-to-a-clean-environment
provision to be proposed. In addition, a federal provision would implicate federalism
concerns if its scope exceeded that of the Commerce Clause.
From time to time, the issue arises whether it might be desirable to amend the U.S.
Constitution to add some sort of environmental provision — for example, one declaring
an individual right to a clean environment. To be sure, the heyday of this idea was the
“environmental Seventies,” quite some time ago, when two unsuccessful efforts were made
in the Congress to accomplish this.1 In their wake, efforts to convince courts that there
1According to one writer, Senator Gaylord Nelson in 1968 first proposed such a constitutional
amendment -- one that would have recognized the "inalienable right" of every person "to a decent
environment." H.R. J. Res. 1321, 90th Cong., 2d Sess. (1968). Two years later, Representative
Richard Ottinger made a second, more comprehensive attempt at federal constitutional recognition
of such a right. H.R. J. Res. 1205, 91st Cong., 2d Sess. (1970). Mary E. Cusack, Judicial
Interpretation of State Constitutional Rights to a Healthful Environment, 20 B.C. Envtl. Affairs
L. Rev. 173, 175-176 (1993).
Congressional Research Service ˜ The Library of Congress

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is already an implicit right to a clean environment in the U.S. Constitution also failed.2
Nonetheless, environmental protection and natural resource conservation were added to
several state constitutions before and during the Seventies, and the debate still surfaces
periodically whether an analog might be appropriate for the U.S. Constitution. Hence, this
brief report.
Our focus here is solely (1) state constitutional provisions asserting a personal right
to a clean environment; (2) the issues such provisions raise, particularly in the courts, and
(3) arguments for and against a comparable addition to the federal constitution. It must
be stressed that such personal right provisions are but a fraction of the entire spectrum of
environment- and natural resource-oriented provisions in state constitutions. Not
discussed in this report are other “healthful environment” constitutional provisions, such
as those that grant the state “power” to promote a healthful environment,3 or declare a
state policy (or duty of the legislature) to maintain a healthful environment.4
Similarly we do not discuss state constitutional provisions geared to conservation of
natural resources, such as those that grant the state or state legislature “power” to
conserve natural resources,5 declare a state policy (or duty of the legislature) to conserve
natural resources,6 grant citizens the personal right to preservation of natural resource
values7 or to restrain violations of natural resource conservation provisions in the state
constitution;8 or state that public natural resources are held in trust by the state for the
benefit of the people.9
Personal Right to a Clean Environment Provisions
All the state constitutional provisions creating a personal right to a healthful
environment took effect in a relatively short period, between 1971 and 1979. Full text of
each provision is given unless otherwise noted by ellipses.
2See, e.g., Ely v. Velde, 451 F.2d 1130, 1139 (4th Cir. 1971). See also David Sive, Some
Thoughts of an Environmental Lawyer in the Wilderness of Administrative Law, 70 Colum. L.
Rev. 612, 642-643 (1970).
3Haw. Const. art. IX, § 8; Mass. Const. art. of amend. XLIX, par. 2; Va. Const. art, XI, § 2.
4Fla. Const. art. II, § 7; Illinois Const. art. XI, § 1; Mich. Const. art. IV, § 52; Mont. Const. art.
IX, § 1; N.M. Const. art. XX, § 21; Va. Const. art. XI, § 1.
5Ga. Const. art. III, § VI, par. II(a)(1); Mass. Const. art. of amend. XLIX, par. 2; Va. Const. art.
XI, § 2.
6Ala. Const. amend. 543; Alaska Const. art. VIII, § 2; Fla. Const. art. II, § 7; Hawaii Const. art.
XI, § 1; La. Const. art. IX, § 1; Mass. Const. art. of amend. XLIX, par. 1; Mich. Const. art. IV,
§ 52; N.Y. Const. art. XIV, §§ 3-4; N.M. Const. art. XX, § 21; No. Car. Const. art. XIV, § 5;
Pa. Const. art. I, § 27; R.I. Const. art. I, § 17; Texas Const. art. XVI, § 59; Va. Const. art. XI, §
1..
7R.I. Const. art. I, § 17.
8N.Y. Const. art. XIV, § 5.
9See, e.g., Ala. Const. amend. 543; Hawaii Const. art. XI, § 1; Pa. Const. art. I, § 27.

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Hawaii Const. art. XI, § 9: Each person has the right to a clean and healthful environment,
as defined by laws relating to environmental quality, including control of pollution and
conservation, protection and enhancement of natural resources. Any person may enforce
this right against any party, public or private, through appropriate legal proceedings,
subject to reasonable limitations and regulation as provided by law. (Effective Jan. 1,
1979.)10
Illinois Const. art. XI, § 2: Each person has the right to a healthful environment. Each
person may enforce this right against any party, governmental or private, through
appropriate legal proceedings subject to reasonable limitation and regulation as the
General Assembly may provide by law. (Effective July 1, 1971.)
Massachusetts Const. article of amendment XLIX: The people shall have the right to
clean air and water, freedom from excessive and unnecessary noise, and the natural, scenic,
historic, and esthetic qualities of their environment. .... (Effective Nov. 7, 1972.)

Montana Const. art II, § 3: All persons are born free and have certain inalienable rights.
They include the right to a healthful environment and the rights of pursuing life’s basic
necessities, enjoying and defending their lives and liberties, acquiring, possessing and
protecting property, and seeking their safety, health, and happiness in all lawful ways. In
enjoying these rights, all persons recognize corresponding responsibilities. (Effective July
1, 1973.)11
Pennsylvania Const. art. I, § 27: 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.
.... (Effective May 18, 1971.)
Analysis
The state constitutional provisions provisions above appear not to have played nearly
as important a role in environmental protection as the extensive statutory regimes enacted
by the states. Still, these provisions have received some interpretation by the courts.12
Most court cases analyzing such state constitutional provisions, and most scholarly
commentary, begin with whether the provision is self-executing — that is, whether it can
be implemented in the absence of legislation. This issue, in turn, hinges on whether the
state constitution speaks directly to the self-executing question. Where the constitution
is silent, the decisions are mixed. In Pennsylvania, for example, the high court initially
ruled (by plurality) that the state’s environment provision was not self-executing so as to
support a state effort, on the authority of the provision alone, to curb the property rights
10See generally Comment, Environmental Protection Based on State Constitutional Law: A Call
for Reinterpretation, 12 U. Haw. L. Rev. 123 (1990).
11See generally John L. Horwich, Montana’s Constitutional Environmental Quality Provisions:
Self Execution or Self-Delusion?, 57 Mont. L. Rev. 323 (1996); Tammy Wyatt-Shaw, The
Doctrine of Self-Execution and the Environmental Provisions of the Montana State Constitution:
“They Mean Something,” 15 Pub. Land L. Rev. 219 (1994).
12See generally Mary E. Cusack, supra note 1.

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of individuals.13 Three years later, however, the same environment provision was held self-
executing in the reverse situation -- that is, where it was asserted against the state.14 It
should be noted that both these decisions focused as well on constitutional text
immediately following the right-to-a-clean-environment sentence quoted above, affixing
public trust responsibilities on the state.
Another decision, addressing a Virginia constitutional provision establishing a
Commonwealth policy to conserve historical buildings, opted for non-self-executing
status.15 Though not dealing with a right to a clean environment, our topic here, the
court's rationale was instructive. A constitutional provision is self-executing, it noted,
when it expressly so declares. In the absence of such a declaration, it said, constitutional
provisions in bills of rights, those declaratory of common law, and those that prohibit
particular conduct, are usually considered self-executing.
Where the constitutional provision expressly states a right to enforce, that statement,
of course, must be given effect. Thus, courts have assumed section 2 of Article XI of the
Illinois Constitution to be self-executing.16 Contrariwise, the Massachusetts Constitution
comes close to stating that its declared right to clean air and water is not self-executing.17
A question closely related to whether the constitutional provision is self-executing
is whether it creates a private right of action, or is merely a declaration of intent or policy.
The Illinois Constitution, while (as noted above) deemed to be self-executing, has been
held not to create any new remedies.18 The Hawaii Constitution's provision also has been
construed by a court (without discussion) to create no private right of action19 -- a dubious
result, it would seem, in light of the "Any person may enforce this right ..." language
following the sentence stating the right to a healthful environment.
If the constitution is self-executing and creates, of itself, a private right of action,
follow-up issues include who can sue (Private individuals only? Government agencies,
too?) and against whom the right may be enforced (Legislature only? Executive branch?
Private polluters?).
Courts in two states have addressed whether the constitutional right-to-a-clean-
environment provision was intended to alter standing doctrine in the state. Official
13Commonwealth of Pennsylvania v. National Gettysburg Battlefield Tower, Inc., 311 A.2d 588
(Pa. 1973).
14Payne v. Kassab, 361 A.2d 263, 272-273 (Pa. 1976).
15Robb v. Shockoe Slip Fdn., 324 S.E.2d 674 (Va. 1985).
16See, e.g., People v. Fiorini, 574 N.E.2d 612, 625 (Ill. 1991).
17Following the constitutional language quoted on page 3 of this report, the Massachusetts
Constitution states "The general court [i.e., legislature] shall have the power to enact legislation
necessary or expedient to protect such rights."
18City of Elgin v. County of Cook, 660 N.E.2d 875, 891 (Ill. 1995); Morford v. Lensey Corp., 442
N.E.2d 933, 937 (Ill. App. 1982).
19Stop H-3 Ass'n v. Lewis, 538 F. Supp. 149, 175 n.31 (D. Haw. 1982), rev’d on other grounds,
740 F.2d 1442 (9th Cir. 1984), cert. denied, 471 U.S. 1108 (1985).

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commentary in the Illinois state code explains that Art. XI, section 2 of that state's
constitution was only intended to enlarge standing.20 It does not (as noted) establish a new
remedy. More specifically, it cancels the judicial requirement that the plaintiff have
suffered “special damage” before he/she has standing to bring an action against alleged
polluting activities. That prerequisite foreclosed lawsuits by an individual who is among
many persons similarly affected by pollution. Similarly, the constitution of Hawaii
provision has been held to enlarge plaintiff standing.21
A potpourri of other issues that may arise in connection with a right-to-a-clean-
environment provision includes:
! Does it empower administrative agencies to exceed the bounds of their statutory
authority?22
! What is the standard to be enforced? Is there to be any balancing of economic
concerns?
! What is the level of proof needed to show injury?
! What remedies are available? Injunctions? Damages?
! Is a preexisting requirement that environmental impact statements be prepared
given constitutional status?23
One commentator suggests that a constitutional right-to-a-clean-environment provision
might be useful for advancing the cause of environmental justice.24
Whether a right to a clean environment provision stands alone or is accompanied by
related provisions may be pivotal. For example, Montana's constitution proclaims a right
to clean environment, but also obligates the state and each person to maintain and improve
that environment. Read together, these provisions suggest a right of action against those
who do not “maintain and improve.”
20The commentary follows the cited constitutional provision in the state code. See also Fiedler v.
Clark, 714 F.2d 77, 80 (9th Cir. 1983) ("legislative history of article XI, section 9 of the Hawaii
Constitution suggests the legislature was attempting to remove barriers to standing to sue"); Life
of the Land v. Land Use Comm’n, 623 P.2d 431, 441 (Haw. 1981) (accord).
21Fiedler v. Clark, 714 F.2d 77 (9th Cir. 1983). But see Community College of Delaware County
v. Fox, 342 A.2d 468, 474 (Pa. Commw. Ct. 1975) (constitutional provision making state trustee
of natural resources does not expand standing for purposes of review actions challenging agency
decisions).
22See, e.g., Pennsylvania Game Comm’n v. DER, 97 Pa. Commw. 78, 509 A.2d 877 ([year]) (no),
aff’d, 521 Pa. 121, 555 A.2d 812.
23Kadillak v. The Anaconda Co., 184 Mont. 127, 602 P.2d 147 (1979) (no).
24Neil A.F. Popovic, Pursuing Environmental Justice with International Human Rights and State
Constitutions, 15 Stan. Envtl. L. J. 338 (1996).

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Amend the Federal Constitution?
Plainly, all the issues noted above in connection with state constitutional provisions
also could be raised were a right to a clean environment proposed as an amendment to the
federal constitution. And arguably at least the major such issues should be addressed
textually to spare the affected parties and the courts a potentially long period of
uncertainty.
Beyond these issues, arguments in favor of a constitutional amendment include, first,
its considerable symbolic value. As a rhetorical flourish in congressional debate, even a
relatively undefined and non-self-executing right to a clean environment has a compelling
quality. Such a provision could also tip the balance in executive and judicial branch
decision making — again, even were the provision but a non-self-executing declaration
rather than a binding mandate.
How an amendment would relate to the Commerce Clause of the federal constitution
is particularly interesting. On the one hand, the existence of an environmental amendment
(particularly one phrased as a grant of congressional power, as well as a personal right of
action) might end the attenuated logic that modern courts indulge in order to find an
interstate commerce nexus that supports federal environmental legislation.25 On the other
hand, if an environmental amendment dispensed with the interstate-commerce foundation
for federal environmental laws, the question would arise why environmental protection
should be singled out for such coveted treatment. Why not civil rights or consumer
protection legislation as well? And of course, states might be quite vocal in opposing what
they would doubtless perceive as federal overreaching. Indeed, would the amendment
belie assertions in federal environmental statutes that the primary responsibility for
environmental protection lies with the states?
One might also ask what new protection a broadly worded constitutional provision
could add to that already contained in the thousands of pages of federal environmental
statutes and regulations now on the books? (Perhaps, though, it would inhibit
retrenchment by some future Congress.) Finally, it hardly needs to be said how difficult
it is to amend the Constitution, as compared to a statute. Thus, an environmental
amendment would have to contain some escape mechanism to ensure that it did not
become an unwanted straightjacket preventing needed flexibility in dire times.
25See, e.g., National Association of Home Builders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997)
(regulation of purely intrastate species under Endangered Species Act satisfies Commerce Clause
by preventing destruction of biodiversity on which certain interstate commerce depends), cert.
denied, 118 S. Ct. 2340 (1998).

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