The Environmental Rights Provisions of U.S. State Constitutions: A Comparative Analysis

Chapter in Environmental Law Before the Courts (Springer, Forthcoming)

Widener Law Commonwealth Research Paper No. 23-05

34 Pages Posted: 17 Mar 2023 Last revised: 8 Jun 2023

See all articles by John C. Dernbach

John C. Dernbach

Widener University - Commonwealth Law School

Date Written: April 13, 2023

Abstract

Nearly every U.S. state has environmental provisions in its constitution. These provisions cover a wide range of issues concerning the manner in which the environment and natural resources are to be governed (e.g., public funding, eminent domain, public trust, access to water, legislative responsibility). But only six declare a right to a quality environment. These are Hawai’i, Illinois, Massachusetts, Montana, New York, and Pennsylvania. This chapter provides a detailed examination of the constitutional text and case law in each of these states, and analyzes the similarities and differences among them. This analysis shows the wide variety of ways in which even similar provisions have been interpreted and applied at the state level. It shows that while four of these states treat their right to a certain quality environment as judicially enforceable, two (Illinois and Massachusetts) do not. Among the states with a judicially enforceable right, Hawai’i and Montana have the most well developed bodies of case law. This analysis also shows similarities and differences in the ways that these constitutional provisions both guide and constrain state authority under statutes and regulations. Perhaps the most basic issue is whether environmental rights should have actual parity with other constitutionally protected rights. These states have answered that question in varying ways.

Keywords: state constitutions, constitutional environmental law, constitutional law, environmental law, environmental rights, public trust, right to a clean environment, Pennsylvania Supreme Court, Montana Supreme Court, Hawaii Supreme Court

JEL Classification: K00, K10, K32, Q00, Q01, Q10, Q2, Q3, Q4

Suggested Citation

Dernbach, John C., The Environmental Rights Provisions of U.S. State Constitutions: A Comparative Analysis (April 13, 2023). Chapter in Environmental Law Before the Courts (Springer, Forthcoming), Widener Law Commonwealth Research Paper No. 23-05, Available at SSRN: https://ssrn.com/abstract=4390853 or http://dx.doi.org/10.2139/ssrn.4390853

John C. Dernbach (Contact Author)

Widener University - Commonwealth Law School ( email )

3800 Vartan Way
Harrisburg, PA 17110-9380
United States

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