The following article, written by student reporters, is part of a series of reflections from the Climate Constitutionalism Conference, hosted by Elisabeth Haub School of Law at Pace University on March 29, 2024. The event brought together legal scholars, activists, and students for a series of discussions on major environmental constitutional issues. Visit the GreenLaw homepage for links to other articles in the series.

Student reporters Julie Frey and Sara Cody prepared this summary of the Roundtable 2 discussion featuring panelist Amber Polk and invited discussant Sam Bookman. Roundtable participants included Barbara Ballan, Gabriella Mickel, and Anna Sekiguchi.

In considering the value of constitutional environmental rights, a key variable may be whether they are understood and applied narrowly to limit government action, or go further by requiring affirmative government action to protect the environment. Another key consideration is understanding the role of litigation in realizing the potential of environmental constitutionalism. When is litigation needed to give constitutional environmental guarantees meaning? Can litigation add value even when environmental constitutional claims legally fail?

One interpretation of the two leading cases interpreting state constitutional environmental rights provisions, Robinson Township v. Commonwealth of Pennsylvania and Held v. Montana, is that they exemplify the role of state constitutional environmental rights provisions as limits on government power. On this interpretation, state constitutional environmental rights have not been invoked as positive rights against state governments, which would create an affirmative, substantive obligation on those governments to ensure particular environmental outcomes.

Robinson Township v. Commonwealth of Pennsylvania concerned a state law, colloquially known as Act 13, in which the state legislature preempted local decision making regarding the siting of fracking wells. Robinson Township is a key case for current climate constitutionalism scholarship because Pennsylvania has an environmental right amendment, § 27. The amendment states that individuals are deemed to possess the right to a clean and healthy environment, which imposes a public trust duty on the government in its management of the natural resources of state. The limiting view of this case is that it exemplifies a first-level and second-level of set of constitutional rights claims. The first level is one in which State Act 13 violated constitutional guarantees by infringing on individual citizens’ rights to decide where industry can (and cannot) drill fracking wells in their community. These individual rights were further limited by the second-level of rights claims, in which State Act 13 infringed on local authority, the will of the people to act through elections, by permitting such activities in certain locations.

Similarly, in Held v. Montana, the court struck down a limitation of the Montana Environmental Policy Act. The statutory limitation in that case provided that greenhouse gas emissions could not be considered during the environmental review process. Again, the constitutional environmental text was invoked to strike down government action held incompatible with the constitutional guarantee, consistent with an understanding of the right as limiting government action.

There are significant questions about whether and how courts could and/or should (normatively) interpret state constitutional environmental rights provisions in a more substantive way. This could include understanding such rights as imposing affirmative (positive) obligations on government to protect the environment. Because courts are well-versed in interpreting fundamental constitutional rights as limits on government power, such provisions might be a very effective tool to use when statutes violate constitutional guarantees and are outside of the public interest. When litigants are challenging whether the government can even enact a statute in the first place, the best tool to use is a constitutional claim. These same constitutional rights provisions might not be as helpful a tool for re-interpreting the Clean Water Act and Clean Air Act or for asking a judge to unilaterally impose higher environmental standards regarding, e.g., pollution than federal and state laws currently require.

It seems possible, however, that constitutional environmental rights claims that request affirmative action as redress could be more successful in state courts than in federal courts. Affirmative remedies are those in which the court orders a party to, i.e., take certain actions rather than simply holding that a party should not have acted in a certain way. Brown v. Board of Education is a non-environmental example of a court making an affirmative holding. There, the court gave the affirmative order to the government to desegregate schools.  Juliana v. United States was brought under a claim of violating due process by not providing a healthy and life-sustaining climate in which plaintiffs made the affirmative request of the court to order the government to take affirmative actions that recognize individual environmental rights to that healthy and life-sustaining climate. The Oregon District Court recently allowed the plaintiffs to replead their case in Julianna v. United States, after a panel of judges in the 9th Circuit Court of Appeals ordered the dismissal due to the courts being unable to order a remedial plan.

One view is that courts are not the best fit for ordering affirmative action at all because it is the court’s role to step in to say a party should not have acted in a certain way. It is also possible, however, that affirmative requests to the courts that are addressed by courts at the state level would be more likely to reap affirmative results because there could be enough homogeneity in the body politic at the state level. If there is more accordance between courts on whether an affirmative remedy is appropriate under state environmental rights, then those affirmative remedies would be more likely to be established through precedent.

To this point, one concern might be particularly populous and litigious states, like New York, which already have a large body of state precedent that is often conflicting, inconsistent, and sparse in reasoning. That is, objectively heterogeneous. Expansive but unreliable precedent could cause more harm than benefit for critical rights and protections like constitutional rights to a clean environment. Another dimension is that these kinds of cases might be very impactful for coalition-building purposes so that the result of the case, win or lose, matters less in terms of the overall benefits from bringing the case in the first place.

Constitutional environmental rights can also support a set of norms that wield influence outside of litigation, although litigation may be necessary to support norm development. Even if constitutional environmental rights provisions were enforceable against private parties (constitutional claims are almost always asserted against the government), there remain concerns about applying those provisions to transactional law and private environmental governance. One doubt is whether corporations would actually act on their own accord to change practices that might violate a constitutional right to a clean environment absent a court order. Constitutional environmental rights can be useful outside of litigation, but they might first need to be litigated to make them useful, to clarify the contours of the right and raise the discretionary floor, so to speak.