Forever Evergreen: Amending the Washington State Constitution for a Healthy Environment

• Publication year: 2021

FOREVER EVERGREEN: AMENDING THE WASHINGTON STATE CONSTITUTION FOR A HEALTHY ENVIRONMENT

Devra R. Cohen

Abstract: Pollution poses an ongoing threat to the health and welfare of the citizens of Washington State. Air pollution costs Washington approximately $190 million per year, ocean acidification is contributing to oyster die-offs, and approximately 677,000 acres of land are affected by area-wide soil contamination. Although Washington has aspirational environmental legislation and a narrowly defined duty under article XVII of the Washington State Constitution to protect navigable waters, their shores and tidelands, the State needs to do more if its citizens-present and future-are going to enjoy a healthy environment. Amending the Washington State Constitution to include an extended public trust doctrine that provides broad environmental protection and incorporates an affirmative right to a healthy environment will add a layer of environmental protection and provide the impetus for politically difficult environmental action. Amending the State Constitution to include a positive right to a healthy environment would not be a radical departure from current policy, and is necessary to safeguard the environment for present and future generations.

INTRODUCTION

Washington State, along with the rest of the world, is facing and will continue to face significant environmental challenges. Air pollution, soil pollution, and climate change all pose serious threats to the state's natural environment, economy, and citizens' health. To tackle these threats, this Comment argues for an amendment to the Washington State Constitution that enshrines a broad public trust duty and provides a positive right(fn1) to a healthy environment. To protect Washingtonians' health and welfare, and to ensure a healthy environment for generations to come, the Washington State Constitution should be amended to include the following provision: (a) The state of Washington is the trustee of Washington's natural environment, including the air, water, soil, and ocean shores. It is one of the principal duties of the state to protect, preserve, and restore the state's natural environment for the current generation and for generations to come. Those residing within Washington's borders, now and in the future, have a positive right to live in and enjoy a healthy environment. (b) This amendment shall take full effect immediately upon the approval and ratification by the qualified voters. The legislature may take action to carry out the purposes of this section, but no such action shall be required for this section to become effective.(fn2) This language provides a positive right to a healthy environment. Like the right to education,(fn3) this proposed language would allow citizens to sue the government(fn4) to declare and enforce their rights,(fn5) and would encourage both the legislature and the courts to prioritize environmental protection.(fn6) The provision is meant to encompass all aspects of the natural environment-including those, like air and water, that are affected by climate change-and enshrine a broad public trust duty in the State Constitution.(fn7) Although adding such an amendment may seem radical at first glance, this Comment will demonstrate that it is not radical(fn8) and that it is necessary.(fn9)

This Comment proceeds in two parts. Part I shows that adding this amendment to the Washington State Constitution would not be a radical departure from Washington's history, current policy, existing constitutional structure, and national and international trends. First, this Part provides an overview of the public trust doctrine-both generally(fn10) and in Washington specifically.(fn11) As this Comment illustrates, Washington's public trust doctrine is well established, in line with the doctrine's ancient origins and its modern interpretation in other states,(fn12) and that the traditional, narrow public trust doctrine is already enshrined in article XVII, section 1 of the Washington State Constitution.(fn13) This Comment then explains how there is room for expansion of Washington's common law public trust doctrine.(fn14) As Part I demonstrates, codifying a broad public trust duty in a constitutional amendment would not be a radical leap from existing Washington common law.

Part I continues with a discussion of current Washington laws that exemplify an existing commitment to the environment.(fn15) It then discusses other constitutionally protected positive rights, demonstrating that including one for the environment would not be unprecedented, and would allow the State Constitution to reflect Washingtonians' values.(fn16) This Part concludes with an overview of the national and international scene.(fn17) In addition to providing a broad overview of the frequency of constitutional environmental protection provisions, this Part provides six concrete examples-three national(fn18) and three international(fn19)-of how this right has been utilized elsewhere to protect the environment and tackle major environmental challenges.

While Part I lays the groundwork for why the proposed amendment would not be a radical step, Part II explains why such an amendment is necessary to protect the health and welfare of Washingtonians. This Part first explores some of Washington's existing environmental problems, including air,(fn20) water,(fn21) and land/soil pollution.(fn22) It then details why a constitutional amendment-not stronger legislation or the common law-is necessary to address these, and other, environmental challenges.(fn23)

The Author freely admits that amending the State Constitution will not immediately solve all environmental problems. However, as this Comment demonstrates, including the right to a healthy environment in the State Constitution is not radical. It is, however, a necessary first step to ensure that the people, the courts, and the legislature have the tools to tackle today's worst environmental problems.

I. AMENDING THE WASHINGTON STATE CONSTITUTION WOULD NOT BE A RADICAL STEP

Amending the Washington State Constitution to include a positive right to a healthy environment that is a codification of a broad public trust duty is not a radical departure from existing Washington law and policy. Washington's long history with the public trust doctrine,(fn24) its inclusion of the traditional doctrine in its Constitution,(fn25) and the possibility of common law expansion of the doctrine(fn26) indicate that the state is ready to accept a broader public trust doctrine. Current Washington law, which demonstrates an ethos of environmental protectionism,(fn27) and a state constitution, which traditionally reflects the people's mores,(fn28) both indicate that including a strong environmental provision in the Constitution would be in line with Washingtonians' convictions.(fn29) Finally, amending the State Constitution would be consistent with both national and international trends of including strong, positive environmental protections directly in states' constitutions.(fn30)

A. The Deep Roots of the Public Trust Doctrine

It has long been recognized that the government has a duty to keep and protect certain resources for the public at large.(fn31) This duty, known as the public trust doctrine, has its roots in Roman law.(fn32) The Institutes of Justinian declared that certain resources, namely the air, sea, seashore, and running water, were "by natural law common to all."(fn33) This declaration is recognized as Ancient Rome's public trust doctrine.(fn34) This expansive public trust doctrine was also present in medieval European law.(fn35) Eleventh-century French law stated that certain resources, including "the public highways and byways, running water and springs, meadows, pastures, forests, heaths and rocks" were open to use by all people, and were not owned or exclusively used by lords.(fn36) Professor Sax, the founding father of the modern public trust doctrine,(fn37) explained that in medieval Europe it was logical for the common places-like the forests and pastures-to be held for the public, since their public use was the basis of the feudal economy.(fn38) This medieval customary law incorporated the developed expectations of the community into the ultimate determination of rights and uses.(fn39) Determinations based on the public trust doctrine were allowed to consider the stability of society along with formalities like title ownership.(fn40)

The doctrine has persevered through time and place, and was recognized in England and the United States after independence. In England, the doctrine established that the Crown held the beds of navigable waters in an unbreakable trust for the people so that they might enjoy commerce, navigation, and the fisheries.(fn41) The United States(fn42) inherited the public trust doctrine from the English Crown upon independence.(fn43) Under the doctrine, states hold the title to navigable waters, to the lands under navigable waters, and to land under tidewaters, in trust for the people of the state.(fn44) The trust ensures that the people "may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein freed from the obstruction or interference of private parties."(fn45) States may grant parcels of this submerged protected land for building structures like docks and wharves, which aid commerce, so long as those parcels, once built upon, "do not...