A Constitutional Right to a Green City

By Timothy Beatley

In the early 1970s, a number of U.S. states began including language in their constitutions declaring a public right to a clean and healthy environment. Pennsylvania added the Environmental Rights Amendment to the state's Declaration of Rights in 1971 with overwhelming political and public support — both houses of the Pennsylvania legislature voted unanimously in favor of adoption, followed by ratification by a resounding popular vote.

An auspicious beginning, but it has taken half a century for the courts to give the provisions the full weight of law. Recently, two Pennsylvania supreme court cases in 2013 and 2017 have provided new political and legal significance.

The 2013 case, Robinson Township v. Commonwealth, involved a pro-fracking state law that would have made oil and gas operations permissible as a matter of right in all local zoning categories. Extensive testimony on the pollution of nearby well water due to fracking was provided, and ultimately, the state supreme court rejected the law in a strong affirmation of the right to healthy neighborhoods and protection against environmentally destructive practices.

The concept of environmental rights is certainly not new; it can be seen in common law principles like the public trust doctrine, which established the public's right to access navigable waterways, beaches, and coastlines. But Pennsylvania's statement of rights, further validated through precedent-setting state supreme court opinions, has the potential to defend and prioritize environmental protection in a way few other mechanisms have. It is a legal provision and an important ethical and political statement: These individual rights to a clean and healthy environment are "inviolate," the court has said, and the result of the "social contract between government and the people."

Pennsylvania's Environmental Rights Amendment aims to protect assets like the Schuylkill River and provide residents with an equitable connection to nature. Photo courtesy Schuylkill River Development Corporation.

The amendment's reach

I spoke recently with Maya van Rossum, the Delaware Riverkeeper and one of the plaintiffs in Robinson Township v. Commonwealth, about the promise of environmental rights. She recently authored a new book, The Green Amendment, and has emerged as a strong advocate for the idea, helping other states — Maryland, New Jersey, and New York — adopt similar constitutional provisions (and perhaps, eventually, the federal government).

One frequently heard criticism is that the wording of the amendment is often so broad as to seem meaningless, but that is no different from our other fundamental rights, van Rossum argues. Freedom of speech and religion have both required further policy and legal deliberations to define their extent and practical meaning.

Equally true, as with all rights, the right to a clean environment is not absolute, but must be balanced against other rights. Just as there are constraints on one's free speech rights, there will be times when environmental rights must be moderated or superseded by some other public interest, when environmental rights will be overruled by a "compelling state interest," van Rossum says. It will remain to the courts to judge these limits, as they do with other rights.

An especially interesting question is whether the Pennsylvania environmental amendment could be interpreted to require an affirmative duty to ensure that all residents have at least daily contact with nature. Numerous studies show significant differences in access to parks, trees, and nature depending on race and income. Greener neighborhoods deliver many positive benefits, and evidence shows that mental and physical health is better in those neighborhoods. Could such a constitutional right to environment serve as a legal basis for rectifying these often dramatically different and unjust environmental and health conditions? It seems a strong possibility.

Maya van Rossum believes environmental rights support environmental justice in other ways. Under an environmental amendment there can be no "sacrifice zones," where lower income neighborhoods or neighborhoods of color are forced to endure disproportionate environmental ills for some greater public good. The Pennsylvania Environmental Rights Amendment helps to buttress the ethical and legal underpinnings of environmental planning — the environment is not understood as a luxury, or as something optional, but must be protected in the same ways we protect freedom of speech or freedom of religion.

She notes that often it is another kind of right — individual property rights — that tend to prevail when they bump up against environmental regulations and safeguards. A state constitutional right to a clean environment would serve as a needed "check" on property rights, she says. The constitutional right to a clean environment serves to "place a thumb on the scale in favor of the environment" (to paraphrase a judge's words). These rights will necessarily come into conflict, but she believes the right to a clean environment "gets that little extra umph because of the quality of the right and the number of people for whom you are protecting it."

The implications of a Pennsylvania-style right to the environment extend well beyond the law. Van Rossum describes a "mindshift" that also results, as those engaged in politics and environmental advocacy find new and potent arguments to make. "Right now people go into public meetings imploring and hoping that their government officials will do the right thing. Well, with environmental rights they go into public meetings demanding and expecting," she says. "They proudly quote the language," of the constitutional provision, giving them "more credibility in their own minds and in the minds of others."

A promising direction is the possibility of establishing an affirmative right to contact with nature and to nature-rich cities and urban neighborhoods. As van Rossum notes, the environmental rights amendment has a strong antidegradation focus — it aims to prevent harm to the environment. Yet at the same time she also believes there is a duty to restore natural environments that have been degraded. "Everybody has the same right to a healthy environment," she says, "so if that right has already been taken, and if that right has already been infringed upon, there is a duty to restore. We believe that this is a part of the green amendment."

A strident view of the amendment could judge restoration based on the natural conditions and functioning of an urban neighborhood or site predevelopment. It might be unrealistic to assume a dense office building or an urban neighborhood would look like a Douglas fir forest, but it could be required to function like one — via stormwater retention, for instance, or filtration and recycling of wastewater, or provision of shade and cooling. A set of natural performance standards that must be met might also serve the purpose, like the Bullitt Center in Seattle, or other buildings that satisfy the Living Building Challenge.

Is there a downside to such environmental rights? Might they spur on greater amounts of litigation, as we rely on courts to interpret and apply the right, and could such a constitutional amendment even be used to by NIMBYists to stop worthy projects from moving forward? Possibly, but overall, such a constitutional provision seems likely to strengthen the position of the weakest voices — those in lower-income and minority communities, to be sure, but also voiceless ecosystems and species. There are interesting possibilities here for establishing an even stronger basis for environmental law and planning. Policies that prevent the extinction of species, the exhausting of woodlands, and the irreversible destruction of natural features of beauty and wonder could all gain a legal ally.

Timothy Beatley is the Teresa Heinz Professor of Sustainable Communities at the University of Virginia, where he directs the Biophilic Cities Project.