Ten Good Practices in Environmental Constitutionalism that Can Contribute to Sustainable Shale Gas Development

28 Pages Posted: 25 May 2016

See all articles by James May

James May

Widener University Delaware Law School

Erin Daly

Widener University Delaware Law School

Date Written: May 24, 2016

Abstract

Unconventional shale gas development is occurring at a breakneck pace, principally in North America, with vast reserves elsewhere. This development has placed new and unorthodox stresses on traditional environmental governance paradigms. Environmental constitutionalism offers an additional tool for engaging in sustainable practices in the development of shale gas. We identify ten ‘good practices’ in environmental constitutionalism including: situating it in systems amenable to social, economic and cultural rights, and those with civil law traditions; clearly articulating a positive individual or collective right; making provisions self-executing; aligning substantive, policy-based and procedural provisions; recognizing sustainability, public trust, climate and biocentrism; scaffolding additional statutory and regulatory means to implement constitutional prerogatives; liberalizing access to judicial vindication; combining national and sub-national environmental constitutionalism; adopting constitutional rights to information, participation and access to justice in environmental matters; and developing quality jurisprudence in environmental constitutionalism. Spotlighting the recently-decided Robinson Township decision from the Pennsylvania Supreme Court in the United States as an exemplar, we conclude that environmental constitutionalism can play a key role in promoting sustainable development of unconventional shale gas reserves, if at all.

Keywords: environmental law, constitutional law, shale gas, environmental constitutionalism

JEL Classification: K32

Suggested Citation

May, James and Daly, Erin, Ten Good Practices in Environmental Constitutionalism that Can Contribute to Sustainable Shale Gas Development (May 24, 2016). Energy, Governance and Sustainability, chap. 3, 2016; Widener University Delaware Law School Legal Studies Research Paper Series No. 16-10. Available at SSRN: https://ssrn.com/abstract=2783926

James May (Contact Author)

Widener University Delaware Law School ( email )

4601 Concord Pike
Wilmington, DE 19803-0406
United States

Erin Daly

Widener University Delaware Law School ( email )

4601 Concord Pike
Wilmington, DE 19803-0406
United States
302-477-2143 (Phone)
304-477-2257 (Fax)

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