The Environmental Rights Provisions of U.S. State Constitutions : A Comparative Analysis

Nearly every U.S. state has environmental provisions in its constitution. These provisions cover a wide range of issues concerning the manner in which the environment and natural resources are to be governed (e.g., public funding, eminent domain, public trust, access to water, legislative responsibility). But only six declare a right to a quality environment. These are Hawai’i, Illinois, Massachusetts, Montana, New York, and Pennsylvania. This chapter provides a detailed examination of the constitutional text and case law in each of these states, and analyzes the similarities and differences among them. This analysis shows the wide variety of ways in which even similar provisions have been interpreted and applied at the state level. It shows that while four of these states treat their right to a certain quality environment as judicially enforceable, two (Illinois and Massachusetts) do not. Among the states with a judicially enforceable right, Hawai’i and Montana have the most well developed bodies of case law. This analysis also shows similarities and differences in the ways that these constitutional provisions both guide and constrain state authority under statutes and regulations. Perhaps the most basic issue is whether environmental rights should have actual parity with other constitutionally protected rights. These states have answered that question in varying ways