An essay: an aspirational right to a healthy environment?

• Author: Kalen, Sam

1. INTRODUCTION II. THE CASE FOR AN ENVIRONMENTAL RIGHT III. CONSTITUTIONAL RIGHTS AND THE COMMON LAW: POTENTIAL AVENUES FOR RECOGNIZING AN ENVIRONMENTAL RIGHT? IV. LEGISLATING FOR A HEALTHY ENVIRONMENT: INCORPORATING ENVIRONMENTAL RIGHTS INTO THE LAW V. RECONCILING POSITIVE AND NEGATIVE RIGHTS: AN ASPIRATIONAL ENVIRONMENTAL RIGHT VI. CONCLUSION I. Introduction

"Do people have a constitutional right to freedom from air pollution and other environmental hazards and annoyances?," wrote New York Times journalist Gladwin Hill in September 1969. (1) Hill was reporting on a Warrenton, Virginia meeting that month at the famed Airlie House among top conservation advocates exploring avenues for advancing environmental protection. Some participants explored the possibility of using the Constitution. (2) So too, the American Civil Liberties Union (ACLU) recently had sought to persuade a court that citizens enjoy a "right to live in, and enjoy, an environment free from improvident destruction or pollution." (3) Signed into law on January 1, 1970, the National Environmental Policy Act (NEPA) even hinted that citizens enjoy a right to a healthy environment. (4) Soon thereafter, though, conversations about a fundamental right to a healthy environment dissipated but did not entirely disappear. (5) At the close of 2013, the Pennsylvania Supreme Court garnered attention by enforcing a dormant state environmental right constitutional provision. (6) At COP21 in Paris near the close of 2015, many in the legal academy and the United States Special Rapporteur on Human Rights encouraged recognizing how protecting against the threat of climate change poses one of the most significant human rights issues affecting modern society. (7) More recently, lawyers in Norway have been attempting to enforce their country's constitutional provision for intergenerational environmental equity against drilling oil in the Arctic. (8)

As the world confronts the human dimensions occasioned by the effects of greenhouse gas emissions, perhaps this is an auspicious moment for once again testing the idea of solidifying a right--aspirational or otherwise--to a healthy environment. If, as many anthropologists tell us, we are now in a new Anthropocene era when human society directs, rather than responds, to nature, it seems reasonable to engage in a meaningful conversation about an environmental right. (9) To be sure, post World War ii liberalism and legal process scholars erected weighty barriers for advancing some higher, fundamental right. (10) Yet some form of transcendent "right" has been the soul of modern environmentalism, from Aldo Leopold, to Christopher Stone, as well as Mark Sagoff and others. (11) Famed political scientist Lynton Caldwell wrote about how a stewardship ethic effectively collided with the assumption that society's function is promoting economic value. (12) "Environmental rights," he observed, "are inherently social rights, yet they have hitherto run a poor second to civil and human rights." (13)

This Essay furthers that dialogue by suggesting how environmental rights envelop the fabric of our legal institutions, casting a shadow for an aspirational right that warrants acknowledging. An aspirational right might, for instance, contextualize appeals to employ the public trust doctrine as an enveloping principle to protect our resources for current and future generations. (14) Mary Wood, after all, spearheaded the idea of establishing a children's trust premised upon a capacious appreciation for the importance of both state and federal public trust doctrines. (15) To be sure, this short inquiry does not mine, in measureable detail, all of the issues surrounding the right to a healthy environment; instead, it provides a framework for how a necessary dialogue can unfold, positing that we should consider the jurisprudential and pragmatic issues surrounding an aspirational right to a healthy environment. As this Essay illustrates, an aspirational environmental right has become part of an international dialogue, and our legal institutions and history demonstrate how our society has slowly gravitated toward recognizing some form of such a right.

II.

The case For an Environmental Right

A fundamental, or universally transcendent, right to a clean, healthy, and safe environment seems elemental. The 1972 Stockholm Declaration on the Human Environment recognized how human dignity and freedom can only occur if our natural surroundings afford an ability to live--for both present and future generations. (16) Twenty years later, the Rio Declaration on Environment and Development "emphasize[d] the need to integrate environment and development in order to achieve sustainable development and allow for a healthy and productive life in harmony with nature." (17) Many countries include some form of an environmental right in their governing constitutions. (18) The same is true with the European Arahus Convention and other institutional bodies. (19) And today, it seems almost axiomatic that a right to enjoy access to a sustainable level of our natural surroundings is firmly imbued within human rights, whether for clean air, a climate not so disrupted by greenhouse gas emissions, access to clean and sufficient water supplies, or enjoyment of native fish, fauna, and unimpaired landscapes. Indeed, the European Convention on Human Rights recognizes how environmental threats interfere with the most basic of society's obligations: protecting the right to life. (20) And courts in Pakistan and the Netherlands have held in favor of recognizing rights threatened by climate change. (21)

The collage of secular rules surrounding our society justifies recognizing some facet of an environmental right here in the United States. These rules range from our living Constitution, to common law principles, as well as to contemporary lex legis. To begin with, that the U.S. Constitution embodies a belief in, and appreciation for, fundamental precepts (often informed by foreign jurisprudence) is well-recognized. (22) After all, natural law provided a moral foundation that allowed reason, and correspondingly morality, to serve as the touchstone for civil authority rather than simply force, pedigree, or religion. (23) in unprecedented numbers, the American founding citizenry read Thomas Paine's exposition on the Rights of Man, and how both "reason" and "the universal order of things" warranted separating from England. (24) The Declaration of Independence exuded the principles of the dominant "American mind" and the importance of superintending inalienable "sacred" rights and privileges. (25) It extended beyond America to the French 1789 Declaration of Rights as well. (26) An accepted and recurrent theme surrounding the Bill of Rights is how James Madison, a principal architect of the Constitution, initially treated such Amendments as unnecessary because of the nature of a written Constitution. (27) Chief Justice Marshall, for instance, "frequently indicated his belief in the acceptance of natural law principles." (28) Justice Story, too, accepted that the written constitution reflected foundational principles of a republican form of government. (29) Finally, the law of nations so prevalent during the nation's founding further illustrated how Enlightenment thought facilitated a shared belief in--at least--some transcendent principles. (30) Among these transcendent rights included a Lockean appreciation for property as something that includes an inalienable right of personhood. (31) And while perhaps Enlightenment philosophy floundered in appreciating nature's importance, the natural rights tradition arguably was broad enough for building a larger foundation that could embrace nature as a component of the Lockean formulae. (32)

Constitutional principles, moreover, are dynamic--regardless of whether one ascribes to a living Constitution theory. (33) Shifting fundamental rights rhetoric has served both progressive and regressive campaigns. Antebellum America witnessed the tension between dynamic and static property interests, with the Court first protecting entrenched, static property rights, as a tenet of our constitutional system and natural rights, only to recognize shortly thereafter the necessity of allowing dynamism --that is, competition and technological and economic change. (34) Natural law/rights language then served the abolitionists in the pre-Civil War era, (35) surfacing once again among those championing ostensibly "laissez faire constitutionalism." (36) That same era witnessed the Court "implicit[ly] recogniz[ing] ... new societal needs." (37) Those needs included an illusory ideal of freedom from what judges may have believed was impermissible class legislation disguised as health and safety measures. (38) And it included, as an element of due process, a fundamental right to an individualized hearing before an institutional body that could adjudicate factual predicates for particular individuals. (39) Of course, it also witnessed emerging concepts for protecting free speech. (40) The Due Process and Equal Protection Clauses, in particular, at their lowest denominator protect citizens against unnecessarily arbitrary and overly unreasonable behavior. (41) These clauses also arguably secure citizens some measure of security for redressing personal harms. (42) We may all disagree about the standard, but undoubtedly custom, tradition, and societal norms all inform the process. And as those norms change, Justice Kennedy recently observed, our "constitutional system" is "dynamic" and, as such, "individuals need not await legislative action before asserting a fundamental right." (43)

That those changing norms can embrace the unassailable interrelatedness of our environment with our fundamental freedoms, such as life, liberty, and property, is far from radical. A healthy environment is as necessary for sustaining individual life (as well as future generations) as...