Time for a New Age of Enlightenment for U.S. Environmental Law and Policy: Where Do We Go From Here?
| Date | 01 April 2019 |
| Author |
49 ELR 10362 ENVIRONMENTAL LAW REPORTER 4-2019
In 1967, the Reverend Dr. Martin Luther King Jr.
secluded himself in a house on the Caribbea n island
of Jamaica to write what became his nal book, Where
Do We Go From Here: Chaos or Community?1 Dr. Kin g
wrote this manuscript after t he Civil Rights Act of 19642
was enacted into law. e Act ended segregation in pub-
lic spaces and banned employment discrimination on the
basis of race, color, religion, sex, or national origin, and is
considered one of the crowning legislative achievements of
the civil rights movement.
Additionally, Dr. King wrote this book after the Voting
Rights Act 3 was enacted into law in 1965. is Act was
intended to overcome legal barriers at the state and local
levels that prevented blacks from exercising their right to
vote as guaranteed under the Fifteenth Amendment to the
U.S. Constitution. ese laws came about only through
brutal struggle.4 In Jamaica, Dr. King reected on the
successes and fai lures of the civil rights movement that he
led for so many years, and his thoughts a nd plans for the
future of the movement.
Consequently, Dr. King expanded the thrust of the
movement by demanding economic and human rights
for poor Americans of diverse backgrounds. He sought,
among other things, jobs, unemployment insurance, a
fair minimum wage, and education for poor adults and
children. Although he was a ssassinated on April 4, 1968,
his thinking/planning culminated into the May 12-June
24, 1968, anti-poverty demonstrations (temporary settle-
ment of tents and shacks called “Resurrection City” on
the Mall) in Washington, D.C., aptly named the “Poor
People’s Campaign: A National Call for a Moral Revival.”
is eort set the stage for future social justice movements
in this country.
Dr. King’s deep reections on the movement were part
of the continuous development of the strategies for the civil
rights movement’s organiz ed activities. He was not afraid
of the civil rights movement going slowly: he was afraid
only of the movement standing still.
Just as Dr. King devoted time for reection on the civil
rights movement, we in the environmental law and policy
1. M L K J., W D W G F H: C
C? (1968).
2. Pub. L. No. 88-352, 78 Stat. 241 (1964).
3. Pub. L. No. 89-110, 79 Stat. 437 (1965).
4. e other key civil rights legislation was the Fair Housing Act of 1968 (Pub.
L. No. 90-284, 82 Stat. 73 (1968)), which was enacted into law on April 11,
1968—literally one week after Dr. King’s assassination. It was enacted into
law, according to President Lyndon Johnson, to honor Dr. King’s legacy.
e law prescribes penalties for certain acts of violence or intimidation, and
for other purposes. Discrimination is outlawed in the renting, buying, and
nancing of homes based upon race, religion, national origin, or gender.
Moreover, the law protects families with children and people with disabili-
ties seeking housing.
Time for a
New Age of
Enlightenment for
U.S. Environmental
Law and Policy:
Where Do We
Go From Here?
by Barry E. Hill
Barry E. Hill is a Visiting Scholar at the Environmental Law
Institute and Adjunct Professor at Vermont Law School.
He served as Director of EPA’s Oce of Environmental
Justice from 1998-2007, and is the author of Environmental
Justice: Legal eory and Practice (4th ed. 2018).
Summary
e issue of environmental injustice has again come
into sharp focus in the wake of the predominantly Afri-
can-American community in Flint, Michigan, being
exposed to lead-contaminated drinking water. To secure
environmental justice for all individuals and communi-
ties, living in a clean, safe, and healthy environment in
America should be considered a human right enforced
by the adoption of an environmental rights amendment
in the bill of rights sections of every state constitution
and the federal Constitution. Such constitutional pro-
tections would signicantly help individuals and com-
munities to defend their human rights to safe drinking
water and sanitation, clean air, clean land, and a stable
climate—and would provide new legal mechanisms for
the protection of those rights.
Copyright © 2019 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
4-2019 NEWS & ANALYSIS 49 ELR 10363
community in the United States5 need to take this oppor-
tunit y now to devote time for reection on the modern
environmental movement. Indeed, the civil rights move-
ment and the environmental movement were the two most
powerful movements of the 20th century. ought leaders
for both movements should always be prepared to reexam-
ine the concepts, approaches, and strategies, but not the
basic principles.
As a result of the actions and decisions of the Donald
Trump Administration over the past two years, this is
arguably the appropriate time for deep reection. Because
of the Administration’s concerted deregulatory assault on
the environmental regulatory infrastructure, we need to
review the past approach to environmental law and policy,
examine the present dichotomy, and plan for the future of
the legal and regul atory regimes g overning pollution, water
law, endangered species, toxic substances, environmental
impact analyses, environmental risks, and so on. is is,
most assuredly, time for a new age of enlightenment for
environmental policy in the United States. We must ask
ourselves that basic question: where do we go from here?
is Article argues that an individua l citizen’s self-exe-
cuting private right to a clean, safe, and healthy environ-
ment in state constitutions and the federal constitution
should be incorporated more into the environmental law
and policy discourse. In other words, it argues for “envi-
ronmental constitutionalism,” which basically means t hat a
constitutional provision (commonly referred to as a “green
amendment”) should be placed in the bill of rights sections
of our state and federal constitutions so that citizens across
this nation can defend their human right to clean water,
clean air, and clean land.6
In addition to existing environmental laws and their
implementing regulations, environmental constitutional-
ism should be seriously considered as a viable mechanism
5. For the sake of discussion, “the environmental law and policy community in
the United States” includes, among others, aected communities; public in-
terest attorneys; environmental business specialists; public policy advocates;
law schools; law school clinics; scholars; academic institutions with environ-
mental, natural resources, and public health studies departments; environ-
mental law think-tanks; policymakers in federal, state, tribal, and local gov-
ernments; industry lobbying organizations; Native American environmental
law organizations; and public interest environmental entrepreneurs.
6. See D R. B, D S F, T S C-
P E O N
(2013), available at https://davidsuzuki.org/wp-content/uploads/2013/11/
status-constitutional-protection-environment-other-nations.pdf. e au-
thor reports that more than three-quarters of the world’s national constitu-
tions (149 out of 193) include explicit references to environmental rights
and/or environmental responsibilities. is includes the majority of nations
in Africa, Central and South America, Asia-Pacic, Europe, and the Middle
East/Central Asia. e U.S. Constitution does not include an environmen-
tal rights provision. Prof. Mary Ellen Cusack has pointed out that in 1968
and 1970 there were attempts to amend the Constitution to include a provi-
sion of a right to a clean and healthy environment. ose eorts failed. See
Mary Ellen Cusack, Judicial Interpretation of State Constitutional Rights to a
Healthful Environment, 20 B.C. E. A. L. R. 173, 174 (1993).
to address environmental and human hea lth challenges.
ose challenges include pollution, deforestation, biodi-
versity loss, ocean dead zones, melting polar icecaps, rising
sea levels, explosive population growth, lack of access to
safe and clean drinking water and sanitation,7 and climate
change.8 Here, I focus on climate change.
is Article is orga nized as follows: Part I briey exam-
ines the age of enlightenment for environmental policy
and law in the United States over the past 100 years.
Part II discusses major climate change litigation under
the National Environmental Policy Act (NEPA) and the
Clean Air Act (CA A)9 and the limitations of those stat-
utes in addressing climate cha nge. Part III discusses the
emerging concept of environmental constitutionalism
and reviews the state constitutions of Pennsylvania and
Montana that include green amendments, as well as major
litigation in those states that interpreted and applied those
amendments. Part IV exam ines how the concept of envi-
ronmental constitutionalism may be more successfu l at
addressing the adverse eects of global warming based
upon current climate change litigation in the United
States. Part V looks at the current example of contami-
nated drinking water in Flint, Michigan, and considers
how environmental rights might apply there. Part VI
oers a conclusion and proposes a new age of enlight-
enment for environmental law and policy in accordance
with climate justice and environmental justice principles.
I. The Age of Enlightenment for
Environmental Law and Policy
Arguably, the age of enlightenment for environmental law
and policy for the modern environmental movement devel-
oped, generally speaking, through three stages over more
than 100 years.
e rst stage occurred e arly in the 20th century and
was led by such notable individuals as the Scottish immi-
grant John Muir, founder of the Sierra Club and the “Father
of National Parks,”10 and the forester Aldo Leop old, the
7. On July 18, 2010, the United Nations General Assembly in a historic
vote declared that clean water was a fundamental human right. Resolution
64/292 stated that the United Nations “[r]ecognizes the right to safe and
clean drinking water and sanitation as a human right that is essential for
the full enjoyment of life and all human rights.” e measure passed with
a vote of 122 in favor to none against, with 41 abstentions. e U.S. rep-
resentative was concerned, however, with whether this human right was an
enforceable right. e United States, consequently, abstained from voting
in favor of the resolution.
8. See, e.g., 7 Biggest reats to the Environment—Why We Still Need Earth Day,
I, Apr. 1, 2018, https://inhabitat.com/7-biggest-threats-to-the-
environment-why-we-still-need-earth-day/.
9. 42 U.S.C. §§4321-4370h, ELR S. NEPA §§2-209; 42 U.S.C. §§7401-
7671q, ELR S. CAA §§101-618.
10. W, John Muir, https://en.wikipedia.org/wiki/John_Muir (last vis-
ited Mar. 4, 2019).
Copyright © 2019 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
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