State constitutions to the rescue? | (ACOEL) | American College of Environmental Lawyers

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The constitutions of more than three quarters of the countries of the planet make explicit reference to environmental rights or responsibilities. In recent years, courts in the Netherlands, Germany, France, Australia, Pakistan, Nepal and Colombia have ruled that these provisions, or similar non-legislative doctrines, compel national governments to act on climate change.

This is not the case in the United States. The US Constitution does not have an explicit right to a healthy environment, and efforts to persuade judges to find an implicit right have not been successful. More recently, in the famous Juliana c. United States In that case, the plaintiffs sought an order directing the federal government to reduce the country’s greenhouse gas emissions. The Oregon District Court in 2016 appeared to favor such a right, but a Ninth Divided Circuit found in 2020 that plaintiffs lacked standing. (The plaintiffs are now back in district court seeking a much more modest remedy.)

However, the constitutions of six states contain provisions with explicit environmental rights – Hawaii, Illinois, Massachusetts, Montana, Pennsylvania, and Rhode Island. The constitutions of several other states contain language on environmental protection, but without clearly creating rights. Most of these provisions were enacted in the early 1970s during this great period of environmental legislation, but they received relatively little attention until a 2013 decision by the Pennsylvania Supreme Court, Township of Robinson v. Commonwealth, who used the State Constitution’s Environmental Rights Amendment to strike down a state law that had prevented municipalities from banning fracking.

As John Dernbach wrote in a recent blog for ACOEL, on July 21, 2021, the Pennsylvania Supreme Court ruled that this amendment required that all state revenue from oil and gas leases be used to retain and to maintain public natural resources for the benefit of future generations.

Now we have an important new decision from Montana.

On August 4, 2021, the Montana First Judicial District Court dismissed the defendants’ motion to dismiss in Held v. State of Montana, a lawsuit brought by some of the same attorneys involved in Julienne. The plaintiffs – 16 young people – alleged they had been harmed by the state’s energy and environmental policies which encouraged the use of fossil fuels, thereby increasing greenhouse gas emissions and exacerbating climate change. The court concluded that the state’s actions implicated the rights of the plaintiffs under the provision of the state’s constitution which states that “[a]All people… have certain inalienable rights. They include the right to a clean and healthy environment.

The plaintiffs had asked the court to issue a “corrective plan” that would require Montana to take numerous steps to reduce greenhouse gas emissions and fossil fuel production in the state. The court concluded that this would violate the political question doctrine. However, the court found no such obstacle to issuing a bill of rights. He said such a statement would help alleviate the climate-related injuries that the Complainants allege, and therefore the Complainants have satisfied the “rectification” component of standing which the Ninth Circuit found lacking in. Julienne. The court therefore authorized the continuation of the dispute.

In November, New York voters will be asked to add a new section to the state constitution’s bill of rights, stating: “Environmental rights: Every person has the right to clean air and water. , and a healthy environment. This amendment was passed by both houses of the state legislature in two consecutive terms and is now on the ballot. Its implications are not entirely clear, but it may well expand the ability of citizens to seek legal redress for some environmental damage.

A first application of the amendment, if adopted, could relate to the implementation of the New York law on climate leadership and the protection of communities. The 2019 law created a Climate Action Council which is currently working hard to develop a plan to meet the law’s ambitious goals, including an 85% reduction in gas emissions. greenhouse effect in 2050 compared to 1990 levels. If the final plan fails, some litigants may well invoke this amendment.

The recent successes of plaintiffs in Pennsylvania and Montana could inspire similar efforts in other states, especially if the federal government continues to fail to address climate change.

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