The Way Forward

• Author: Environmental Law Institute
• Pages: 81-83

V. The Way Forward

In giving force to constitutional environmental protections, particularly

in cases of first impression, the facts are likely to be critical. The court de-

cisions discussed in this publication frequently emphasize the direct hu-

man impacts, as well as the severity of environmental destruction. Thus,

where mining operations have directly harmed human health, such as in

Eurogold and Kendra, or proposed dumping of radioactive waste could

harm human health, as in Balichostan, courts have readily granted relief.

Courts have also ordered illegal municipal waste dumps to close when

the fumes and other annoyances harmed the people living nearby, as in

the Chacón and Balegele cases.

Once a constitutional right to a healthy environment is established,

courts appear to be more willing to protect the environment without re-

quiring an explicit link to human life or health. For example, in India, ini-

tial court cases emphasized the impacts of pollution on human health,

then on cultural icons such as the Taj Mahal. And the Indian Supreme

Court has extended the right to a healthy environment to require environ-

mental education in schools, as well as environmental public service an-

nouncements in cinemas and on the radio.

In contrast, however, test cases emphasizing aesthetics rather than hu-

man health are more likely to be rejected. For example, in Pennsylvania,

the first case brought under a state constitutional right to a clean environ-

ment relied upon aesthetics and history more than human health and

the environment, and the Pennsylvania Supreme Court ruled that the

constitutional provision could not be invoked, in part because it was

not self-executing.275

Nonetheless, as environmental awareness has increased worldwide,

some courts have reversed earlier decisions and made constitutional pro-

visions more protective of the environment and human health. In fact, the

81

275. Commonwealth of Pennsylvania v. National Gettysburg Tower, Inc., 311 A.2d

588 (Pa. 1973) (refusing to enjoin the construction of an observation tower near

Gettysburg National Military Park, the court split on whether the constitutional

provision was self-executing). For a thorough review of Pennsylvania’s constitu-

tional provision and the cases interpreting it, see John C. Dernbach, Taking the

Pennsylvania Constitution Seriously When It Protects the Environment: Part I

An Interpretive Framework for Article I, Section 27, 103 Dick. L. Rev. 693

(1999); John C. Dernbach, Taking the Pennsylvania Constitution Seriously When

It Protects the Environment: Part II Environmental Rights and Public Trust, 104

Dick. L. Rev. 97 (1999).