The California Constitution Should Guarantee Environmental Rights
The constitutions of over 110 countries provide a right to a safe, clean, healthy, and sustainable environment. The right has been enforced mostly against government agencies taking actions hurting the climate, for example:
In Greenpeace v. Mexico, the Mexican Supreme Court held that the legislature’s elimination of a Climate Change Fund violated the constitutional right to a healthy environment and ordered the fund to be restored.
In Rede Sustentabilidade vs. National Environment Council, the Brazil Federal Supreme Court held that regulations revoking various environmental restrictions violated the plaintiffs’ fundamental right to an ecologically balanced environment.
In Herrera Carrion et al. v. Ministry of the Environment et al., an appeals court in Ecuador held that the government’s authorization of gas flaring violated the plaintiffs’ right to live in a healthy and ecologically balanced environment.
The EU’s relatively advanced system of human-rights law does not include an enforceable right to a clean and healthy environment, though the Council of Europe is working to enact one. Wins in several marquee European climate cases have been based on the fundamental right to life provided by the European Convention on Human Rights.
The United States should amend its constitution to add an environmental right, though such an amendment would be hard to enact in the current political climate. But when we can’t get things done at the federal level, we can sometimes get them done by states.
Several states, including Montana, New York, Hawaii, and Pennsylvania, have amended their state constitutions to establish constitutional rights to a healthy environment. The provisions vary. Some are bare-bones, such as New York’s, which reads, simply “Each person shall have a right to clean air and water, and healthful environment.” It’s time that California add such a right to its constitution, but we can do better than this.
A constitutional environmental right should be self-executing, meaning that the right may be invoked in legal proceedings as soon as it is added to the constitution, and it doesn’t require the legislature to enact enabling statutes. This is the case with the Bill of Rights in the first 10 Amendments to the US Constitution; they may be invoked directly as legal authority and require no enabling legislation from Congress. Hawaii’s environmental amendment, by contrast, states: “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.” The references to “as defined by laws” and “as provided by law” make this constitutional provision non-self-executing and defers the decision on the dimensions of the right to the legislature. What’s the point of an environmental constitutional amendment if it is not self-executing? The legislature already has the power to enact environmental laws, and the amendment wouldn’t change the scope of that legislative power.
An important aspect of constitutional environmental rights is whether they can be invoked against private parties or just against the government. The rights in the Bill of Rights in the US Constitution apply only to the government. The First Amendment reads, in part, “Congress shall make no law...abridging the freedom of speech, or of the press...” This is interpreted more broadly than the text would suggest; it restricts not just laws that Congress may pass, but also other actions the government might take. It applied originally just to the federal government; it now applies to state and local governments as well, thanks to the 14th Amendment. But it doesn’t apply to private parties; it doesn’t prevent an employer, for example, from restricting what an employee can say in public.
The Montana Environmental Right Amendment, in Article II, Section 3 of the Montana Constitution, applies to private parties because of additional language in Article IV, Section 1, which reads “the State and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations.” The Montana Supreme Court held, in Cape-France Enterprises v. Peed, that this provision resulted in a prohibition of a private party drilling a well on its property, when the drilling might contaminate aquifers.
The biggest difficulty with an environmental right that can be enforced against private parties, in my opinion, is that it is difficult to appropriately restrict the environmental harms to which it applies. For example, I harm the environment when I drive my gas-powered car down the street. It emits greenhouse gases, harming the climate, and also emits various other air pollutants like NOx and particulates. If the environmental right amendment was enforceable against private parties like me, my neighbor could, at least arguably, sue me for violating her environmental right. It’s difficult to draft language in the amendment that would restrict the amendment to appropriate cases. If this task is left to the legislature, then the amendment becomes non-self-executing. The task could be left to the courts, which are required to decide cases even when the legal authorities are unclear. But that would be irresponsible and unfair to the courts. It’s better if the environmental right is enforceable only against governmental entities.
The California amendment should support environmental rights by confirming and expanding the public-trust doctrine. Under this doctrine, established nationwide, but mostly a matter of state law, the state holds certain public resources in trust for current and future generations and must not take actions that harm the trust. In an 1892 case, Illinois Central Railroad Co. v. Illinois, the US Supreme Court held that the doctrine applied to submerged lands in Lake Michigan, and that it prohibited the Illinois Legislature from selling those lands to a railroad. In California, the public-trust doctrine was expanded by the judiciary to include wildlife and some surface water in the trust. There is no principled reason why the doctrine should not apply to the atmosphere and climate. The environmental right amendment provides an opportunity to expand the public-trust doctrine to apply to the air in the state, so that it would require the state to safeguard the atmosphere and the climate.
Early in 2024, an environmental right amendment, ACA-16, was introduced in the California Legislature. It was not clearly self-executing and required that it not be enforced “in a manner inconsistent with duly enacted laws of the state,” which effectively allowed the legislature to overrule it. We can do better. My non-profit, Advocates for the Environment, has developed proposed language for the California Environmental Right and is building a coalition to support adding this language to the Bill of Rights in Article I of the California Constitution. If you’re interested in supporting or following this effort, please sign up for the mailing list at EnviroRight.org.
One of the main effects of a constitutional right to a clean and healthy environment would be that it would fill in the gaps between existing environmental statutes. California has a slew of environmental statutes that parallel federal environmental laws like the Clean Air Act, Clean Water Act, Endangered Species Act, National Environmental Protection Act, CERCLA, and RCRA. These siloed laws each focus on a different aspect of the environment, but there are lots of gaps between them, so the environment as a whole is not well protected.
The amendment would not create a sea change in California’s environmental law. It would not mean that protection of the environment takes precedence over everything else. It would instead function as a much-needed thumb on the scale when courts are assessing the proper balance between environmental and other policy concerns. We can get an idea of how the amendment would affect California environmental law by looking at how similar amendments in other states have affected the law in those states.
In Robinson Township, the Pennsylvania Supreme Court held that the Pennsylvania Constitution’s Environmental Rights Amendment required the state to balance environmental interests with other interests, and to act affirmatively to protect public-trust resources. The court held that provisions of the Pennsylvania Oil and Gas Act requiring cities and counties to allow oil and gas production in all zones and to refrain from regulating it, were incompatible with the Amendment, and therefore unconstitutional.
In Hawaii, youth plaintiffs sued the state, alleging that Hawaii’s transportation system violates the public-trust doctrine and infringes on the state constitutional right to a clean and healthful environment. The state settled the case, agreeing that the Hawaii Department of Transportation would take specific steps to reach zero GHG emissions by 2045.
In Held v. State, the Montana Supreme Court ruled that Montana’s State Energy Policy Act’s prohibition of the consideration greenhouse-gas emissions in environmental reviews violated the Montana Constitution’s right to a clean and healthy environment, which includes the right to a stable climate.
These are the sorts of legal benefits we could expect from California’s Environmental Right Amendment. In addition to its bolstering of environmental rights in litigation, adding the amendment to the State Constitution would send a strong policy message that the State demands protection of the environment. It could also be California’s way of standing up and protesting the recent evisceration of the federal government’s environmental protections.