By: Chris M. Hunter
On February 11, 2019, 32 Democratic Delegates cosponsored House Joint Resolution 25, dubbed the “Environmental Rights Amendment.” The resolution proposes to amend the West Virginia constitution’s Bill of Rights by including a provision specifying that a clean environment is a constitutional right:
ARTICLE III. BILL OF RIGHTS.
§23. Natural Resources and the Public Estate.
The people have a right to clean air, pure water, and the preservation of the natural, scenic, historic, and esthetic values of the environment. West Virginia’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the State shall conserve and maintain them for the benefit of all the people.
The resolution essentially cuts and pastes a provision added to Pennsylvania’s constitution in 1971:
The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment.
Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come.
As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.
See Pa. Const., Art. I, Section 27. https://www.legis.state.pa.us/WU01/LI/LI/CT/HTM/00/00.HTM.
Pennsylvania’s Environmental Rights Amendment was rarely referenced for decades, but it has been used recently in efforts to halt oil and gas production. For instance, in Frederick v. Allegheny Township Zoning Hrg. Bd., 196 A.3d 677 (Pa. Cmmw. 2018), citizens challenged a local zoning ordinance authorizing oil and gas drilling within the township, arguing that the local zoning board had a duty under the Environmental Rights Amendment to prevent environmental degradation. A plurality of the court rejected this argument, but only because a zoning board’s authority is limited to deciding where certain activities are to take place, as opposed to deciding how those activities take place. According to the court, the plaintiffs should have raised their objections when the state issued the drilling permits, thereby leaving open the possibility of such a challenge to future drilling permits.
In an earlier case challenging the disposition of proceeds from oil and gas leases in state forests under the Environmental Rights Amendment, the Pennsylvania Supreme Court acknowledged the difficulty in applying the amendment because it “does not impose express duties on the political branches to enact specific affirmative measures to promote clean air, pure water, and the preservation of the different values of our environment….” See
Robinson Tp., Washington County v. Com., 83 A.3d 901, 950 (Pa. 2013). On the other hand, even though it acknowledged that clean air and water are subjective terms concerning technical standards outside of the judiciary’s area of expertise, the court stated that the amendment does require the government to “reasonably account for the environmental features of the affected locale….” Id. at 953.
But this simply raises even more questions. Must agencies insert some sort of environmental assessment into the procedures they use to make decisions under their authorizing legislation and regulations? If no statute grants that authority to the agency, and no regulation establishes a predictable process for the agency to conduct such an analysis, is the agency free to conduct its own standardless, purely discretionary constitutional analysis? Each and every decision that can arguably impact the environment would be subject to constitutional challenge. Without accompanying concrete criteria against which to test an agency’s environmental assessment, it’s anyone’s guess as to which decisions would ultimately pass constitutional muster in court. The only certainty that would accompany the “Environmental Rights Amendment” in West Virginia is that its passage would increase litigation costs and delays for natural resource production, construction projects, and a bevy of other activities.
If the “Environmental Rights Amendment” resolution passes the West Virginia House and Senate by a two-thirds vote, the amendment would then be placed on the November 2020 General Election ballot. In the General Election, a simple majority of voters would need to vote for the amendment for it to pass.