Realization of the Right to Environment Protection as a Fundamental Right in the United States: Some Reflections

Abstract

This paper advocates for the recognition of the right to a clean, healthy, and sustainable environment as a fundamental right under the current text and content of the U.S. Constitution, specifically through the Due Process Clauses of the Fifth and Fourteenth Amendments. The research underscores that existing legal mechanisms—such as the Equal Protection Clause, civil rights statutes, and federal environmental laws—are insufficient to consistently and robustly protect environmental rights or ensure environmental justice, particularly for marginalized communities. The paper argues that environmental justice cannot be achieved without grounding environmental rights in constitutional norms, and demonstrates that such a right is embedded in the nation's history, tradition, and concept of ordered liberty. Drawing from state constitutional models, international instruments, and evolving jurisprudence, the paper further contends that environmental rights can be inferred as penumbras of substantive due process. It concludes that recognizing environmental rights as fundamental would empower individuals and communities to challenge harmful government actions or omissions and require courts to apply strict scrutiny to policies that compromise environmental integrity. This framework offers a durable and just path toward achieving environmental equity, resilience, and protection across generations.

Introduction

Environmental justice is concerned with the fair and equitable distribution of environmental benefits and burdens among different communities, particularly focusing on marginalized or vulnerable populations. ¹ The concept of environmental justice, encompassing the fair treatment and meaningful involvement of all individuals regardless of their race, color, national origin, or income in the formulation and enforcement of environmental laws and government actions, remains an important yet somewhat elusive principle within the legal framework of the United States.

Achieving environmental justice necessitates that individuals and communities have access to legal mechanisms to challenge decisions that may harm the environment or violate their rights. Hence, defining what is a harm to the environment, and establishing procedural and substantive rights for individuals and communities is a prerequisite for achieving environmental justice. Environmental justice is necessarily contingent on the existence of substantive environmental rights.

At the federal level, attempts have been made to support and promote environmental justice within existing legal instruments, such as the Equal Protection Clause of the Fourteenth Amendment of the US Constitution and various statutes; but those attempts have often appeared weak. ² The Equal Protection Clause is not specifically tailored to protect the environment itself, or to ensure equitable distribution of environmental benefits and burdens among different populations of individuals. And statutes are subject to the supremacy of the Constitution and can change at the whim of legislators.

At the local level, some states have adopted environmental rights in their constitutions, through explicit constitutional amendments, with inconsistent results for environmental justice. Those states are: Pennsylvania (1971), Montana (1972), Hawaii (1978), Massachusetts (1972) and Illinois (1970). ³ State constitutions can be helpful in complementing a federal right to a clean environment, but cannot serve as a substitute for the latter given the formers’ limited geographical reach and their potential for inconsistent results.

Environmental justice is broader than the right to a clean, healthy and sustainable environment. However, if the right to a clean, healthy and sustainable environment is deemed to be a federal constitutional right, individual—as opposed to government or administrative—actions addressing environmental justice can be strongly supported and based on the former. Affected communities would be empowered to fight for environmental justice. That is because government actions that infringe upon fundamental rights must survive a strict scrutiny analysis and can be used to defend more specific concepts based on the doctrine of emanations, or penumbras of rights. ⁴

This paper advocates for the nationally uniform recognition of environmental rights under the current text and content of the US Constitution, without the need for a constitutional amendment. Such recognition would provide a robust, uniform and enduring basis for the pursuit of environmental justice by affording direct access to legal actions in favor of affected minorities.

To that end, this paper will explain why a constitutional foundation is needed for environmental rights, as a prerequisite for environmental justice, and will survey the insufficiency of the main legal substantive grounds that have been employed so far to fight for such rights and consequently for environmental justice. After that, the analysis will turn to the current text and content of the US Constitution, and specifically the application and use of the Due Process Clauses of the Fifth and Fourteenth Amendments as strong legal foundations for environmental rights and therefore environmental justice.

Part One: Need for Federal Environmental Rights

Environmental justice cannot exist without substantive environmental rights. Justice is generally defined as “the maintenance or administration of what is just especially by the impartial adjustment of conflicting claims or the assignment of merited rewards or punishments.” ⁵ Conflicting claims cannot be fairly assessed without a corresponding substantive basis. Environmental justice revolves around the fair and equitable distribution of environmental benefits and burdens across different communities; therefore, what constitutes an environmental burden or a benefit needs to be clearly defined, and not left to widely divergent interpretations not grounded on preestablished law. ⁶

Efforts to find a secure legal footing for environmental justice have encountered challenges. The connection between environmental rights and the Equal Protection Clause of the Fourteenth Amendment, or civil rights norms, currently appears unduly tenuous. Furthermore, statutory provisions, while important, can be amended or diluted with relative ease based on political motivations. Therefore, it is desirable to seek a more stable and unassailable legal foundation for environmental justice at the federal level.

It is often said that the primary responsibility for environmental protection lies with the states and that states are closer to their residents and local needs, including to make balancing judgments between potentially conflicting interests (e.g., jobs and economic welfare v. a clean environment). However, national uniformity is desirable. Such uniformity can ensure that environmental regulations and standards are consistent across the entire country. It can also simplify compliance for government agencies, businesses and the public. Uniformity can reduce burdens on regulatory agencies and their costs and help level the playing field for businesses operating in multiple states.

An environmental burden generally refers to the disproportionate exposure of a population—often low-income or minority communities—to environmental harms, such as pollution, hazardous waste, or other health and environmental hazards. ⁷ Legally, the term is often used in the context of environmental justice.

National uniformity of environmental standards can play a crucial role in advancing environmental justice by addressing disparities in environmental burdens more generally, and ensuring that all communities have equal protection from environmental harm. Uniform standards can lead to more consistent enforcement of environmental regulations across regions, and the promotion of transparency and accountability in environmental management. Communities are better able to understand the risks they face and hold regulators and industries accountable for compliance with norms established on a broader territorial scale.

Limits of Equal Protection and Civil Rights

Prohibitions against discrimination, be them under a constitutional Equal Protection Clause or statutory Civil Rights, are inadequate to promote environmental justice. Equal Protection is a constitutional principle that applies to actions taken by state and local governments. ⁸ It requires equal treatment of individuals and groups, and prohibits discrimination based on factors such as race, gender, ethnicity, or other protected (suspect) categories. The Civil Rights Act of 1964 is a statute that addresses discrimination in public accommodations, employment, and federally funded programs. ⁹ It also prohibits discrimination based on categories such as race, color, religion, sex, or national origin.

Equal Protection and Civil Rights have been proposed and tried as basis for environmental justice. ¹⁰ An equal-protection analysis under the Fourteenth Amendment requires establishing whether a difference in legal treatment is based on a classification amongst people. Title VI of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, or national origin in programs and activities receiving federal financial assistance. Prohibitions against discrimination can in theory be used to ensure that all individuals have access to information and opportunities for public participation in environmental decision-making processes. Legally speaking, ensuring that everyone has a voice in environmental matters can lead to better environmental justice. This is the procedural component of environmental justice.

Prohibitions against discrimination can also promote the substantive component of environmental justice: its distributive component, which focuses on the fair distribution of environmental benefits and burdens across different communities, particularly addressing the unequal distribution of environmental risks. Of course, no community should be unfairly burdened with a disproportionate share of environmental hazards or deprived of environmental benefits based on characteristics such as race or income. But in essence, both the equal-protection and civil right analyses require to prove discriminatory intent, for both the procedural and the distributive components of environmental justice.

For instance, in the case of Bean v. Southwestern Waste Management, Inc., plaintiffs alleged environmental discrimination in the siting of a waste facility in a predominantly Black neighborhood. ¹¹ The court rejected the claim due to lack of direct evidence of intent to discriminate. Similarly, in R.I.S.E., Inc. v. Kay a court dismissed claims of environmental racism for lack of explicit racial motivation, and concluded that the plaintiffs failed to meet the legal standard for proving intentional discrimination under the Equal Protection Clause. ¹² Those cases illustrate the near impossibility of proving discriminatory intent—a key requirement under an Equal-Protection analysis.

As such, it is very difficult to prove intent in prejudicing disadvantaged communities with either inadequate representation or disproportionate environmental burdens. ¹³ Arguments are normally focused on fairness, equity and meaningful community participation in decision-making, but it is challenging to find direct evidence of discriminatory intent, such as written or verbal statements by those responsible for the lack of representation or environmental burdens. In many cases, intent must be inferred from circumstantial evidence, such as patterns of behavior, historical context, or statistical disparities. Sometimes, a case can be made if a policy or practice disproportionately disenfranchises or harms a specific community and there is no valid justification for that disenfranchisement or harm. It is true that an action may be considered discriminatory even without proving explicit intent; but that is not an easy task. At best, the unfortunate correlation between protected racial minorities and poverty—with poor communities usually being the most affected by procedural or distributive environmental injustices—could serve to demonstrate a disproportionate impact of some actions over such minorities.

However, for courts to apply a strong legal foundation and non-deferential scrutiny to statues and government actions under the Equal Protection Clause and Civil Rights, a classification of people would need to be suspect. ¹⁴ Only suspect classifications trigger strict scrutiny under the Equal Protection Clause. While race is a suspect classification, it is difficult to prove that people are being mistreated for environmental purposes (procedurally or substantively) on the basis of their race. Economic or financial state or status—including poverty—has not deemed to be a suspect category.

Unless strict scrutiny applies, political considerations and public opinion can easily influence judicial decisions in constitutional challenges. This can weaken the effective use of rational scrutiny, especially when external factors play a significant role in the decision-making process. Also, courts often hesitate to overstep their boundaries, which can affect the thoroughness of rational scrutiny. Further, the specific facts and circumstances of each case can greatly impact the application of rational scrutiny. ¹⁵

Limits of Federal Statutes

Federal statutes are also insufficient to promote environmental rights and environmental justice. That is mainly because statutes can be easily amended. Amendments to federal statutes are handled by Congress and, except for political circumstances, can be legally achieved with relative ease. Statutes can be amended through the passage of a new bill, which may amend or repeal specific provisions of an existing law. The passage of a bill to amend a federal statute generally only requires a majority vote in both the House of Representatives and the Senate. Changes in political administrations can lead to shifts in regulatory priorities and the rollback of environmental protections. Environmental protections contained in statutes are hence not necessarily resilient from a legal standpoint. ¹⁶

Another problem is that, due to federalism concerns, federal statutes regarding environmental issues have a need to focus on jurisdictional, executive power and procedural issues. As a practical consequence, and perhaps unwantedly, those statutes have shown less concern with the recognition of substantive environmental rights. This is characteristic of the American legal and regulatory approach to environmental protection. ¹⁷

The United States has a federal system of government, meaning that both the federal government and individual states have authority over various aspects of environmental regulation. Federalism can lead to jurisdictional issues and a focus on delineating the authority of federal and state governments, as seen in statutes like the Clean Water Act and the Clean Air Act. This implies that, in practice, the establishment of substantive environmental rights can be understandably neglected in federal statutes. ¹⁸

Many environmental statutes primarily provide legal standing to government agencies or entities that have been directly harmed by environmental violations. ¹⁹ For instance, the U.S. Supreme Court has held that there is no private right of action to enforce disparate-impact regulations promulgated under Title VI of Civil Rights Act of 1964. ²⁰ This can limit the ability of individuals and communities to seek legal remedies for environmental harm, even if their interests are affected. Furthermore, federal statutes and government actions can be challenged on the basis that they conflict with, or unduly limit, individual liberties protected by the Constitution. It is therefore important to recognize that environment rights are constitutionally protected; such protection should not only be recognized by statutes.

State Constitutions

The extent and specificity of environmental rights protections in state constitutions can vary significantly. ²¹ Accordingly, the fight for environmental justice cannot find a consistent and general footing on such constitutions. Some states have comprehensive provisions, while others have relatively minimal language addressing environmental issues. ²² These state constitutional protections can complement, but not replace, the needed federal environmental protections.

It is important to make environmental protection a federal issue, subject to a uniform federal legal regime, for multiple reasons, including interstate (transboundary) issues. Many environmental challenges, such as air and water pollution, do not respect state boundaries. Pollution generated in one state can affect the environment and public health in neighboring states. Federal oversight is needed to address these issues, as well as environmental justice, effectively. Having a constitutionally grounded uniform set of environmental standards and regulations at the federal level can help avoid a patchwork of conflicting regulations across states, with inconsistent outcomes in environmental justice. Federal agencies, such as the Environmental Protection Agency (EPA), have the resources and expertise to conduct research, enforce regulations and coordinate with states and other stakeholders to address environmental rights. Environmental rights are a necessary premise, or steppingstone, for environmental justice. ²³

The Montana State Constitution has been lauded as an example in the protection of substantive environmental rights. ²⁴ That Constitution served as legal ground for a Montana State judge to recognize standing in favor of a group of young individuals to seek a direct remedy in equity against, among others, the Montana Department of Environmental Quality, the Montana Department of Natural Resources and Conservation and the Montana Department of Transportation in connection with the State's fossil fuel-based state energy system. ²⁵ The case involved primarily climate change issues and their health impacts on current and future generations. The court held that the plaintiffs had a fundamental constitutional right to a clean and healthful environment, which includes climate and as a consequence permanently enjoined the state government from acting in accordance with the statutes declared unconstitutional. ²⁶ While the court did not address environmental justice as such, the recognition of a private environmental cause of auction in Montana is itself a positive development creating a legal tool that can be used by individuals and communities to fight for environmental justice. ²⁷

But, while the outcome of the Montana case seems positive, its implications are limited to the territory of that state and the case will still have to work its way up to the highest state court there. Environmental actions with a limited geographical reach are not very effective, especially if neighboring states do not have similar policies. Climate change is a global problem for the entire planet and must hence be addressed at a larger scale. That is so even if climate change disproportionally—and unjustly—affects communities that do not have the economic resources to adapt to, or combat, the impacts of climate change like, for example, rising sea levels or certain contagious human diseases. ²⁸

Part Two: Limited International and Comparative Value

International and comparative recognition of environmental rights is not enough to legally fight for such rights, and consequently for environmental justice, in the United States. This is in part because the US Supreme Court has given limited reach and effect to international law and basically no recognition to comparative law, in recognizing fundamental rights in the US. ²⁹ The analysis about the content and extent of individual rights under the US Constitution has been, understandably, very domestic. This confirms the need to ground environmental rights in US constitutional norms, as there is a potential tension between international and comparative law, on the one hand and on the other the legal autonomy of the US as a sovereign nation.

International Law Perspective

International law has progressively recognized the protection of environmental rights. Human rights are an area of international law that is particularly relevant for environmental rights. The international community, including through resolutions from the United Nations Human Rights Council in 2021 (A/HRC/RES/48/13) and the General Assembly in 2022 (A/RES/76/300), ³⁰ has affirmed that everyone has the right to live in a clean, healthy and sustainable environment. While this global acknowledgment is significant, it is equally essential to enshrine this right within domestic norms, ideally within the constitutional framework.

Human rights, while a positive concept for recognizing universally protected rights, are subject to evolution and somewhat elusive definitions, save for some lowest common denominators, such as human life itself and physical liberty. ³¹ It is not clear what limits or conditions a constitution and statutes can impose on human rights.

It is important to note, in any case, that the Constitution provides that treaties, alongside the Constitution itself and federal statutes, are the highest laws in the nation. ³² However, in cases where a conflict arises between a treaty and the Constitution, the US Supreme Court has established a clear precedent: the Constitution takes precedence over any treaty. ³³ This principle underscores the Constitution's role as the supreme legal authority, ensuring that it remains the bedrock of the nation's legal framework. US courts must interpret and apply such internal framework in consistency with international obligations, if possible. However, the Constitution prevails and is more important for US Courts and authorities than international law, including treaties. ³⁴

Individual liberties expressly recognized in the Constitution can be used to reduce the legal significance of international law, including treaties. And in cases where treaties or executive agreements are equivalent to federal law, the “last-in-time” rule requires courts to apply whichever of the two reflects the “latest expression of the sovereign will” of the United States. ³⁵ Hence, it is crucial to incorporate environmental rights within the federal constitutional framework in order to achieve environmental justice.

Comparative Law Perspective

The domestic laws of many countries have also progressively recognized the protection of environmental rights. Remarkably, environmental rights are now enshrined in over ninety national constitutions, with tangible results seen worldwide. Examples abound, from the strengthening of environmental legislation to groundbreaking court decisions, the remediation of pollution hotspots and the provision of safe drinking water. ³⁶

Comparative constitutional law demonstrates that environmental rights are increasingly recognized as fundamental in many jurisdictions outside the United States. For instance, Article 112 of the Constitution of Norway explicitly guarantees that every person has the right to an environment that is conducive to health and to a natural environment whose productivity and diversity are maintained. It further mandates that natural resources be managed on the basis of long-term considerations and that the state take measures to safeguard these rights for present and future generation. ³⁷ Similarly, Section 24 of the Constitution of the Republic of South Africa enshrines the right of everyone “to an environment that is not harmful to their health or well-being,” and obligates the state to take reasonable legislative and other measures to “prevent pollution and ecological degradation,” promote conservation, and secure sustainable development for the benefit of both present and future generations. ³⁸ These constitutional provisions serve as compelling models of enforceable environmental rights, linking ecological sustainability directly to human dignity and intergenerational justice.

However, comparative law and what the constitutions of other countries provide are of course not binding on US courts. Comparative constitutional law in the sense just mentioned hardly exists as a taught discipline in the United States; even good casebooks are rare. ³⁹ Therefore, while useful as coloring background or backdrop, or evidence of cultural or positive legal trends in some countries, comparative law is not in any way a solid basis for environmental rights in the US.

Part Three: Constitutional Grounds for Environmental Rights

Given the inadequacy of the legal grounds or bases for environmental rights and justice mentioned above, there is a need to look elsewhere for such grounds or bases. And the ideal place to look is the current text and content of the US Constitution, even if the interpretation and application that courts have so far given to them has not yet reflected their adequacy for this purpose.

Courts in the US have not, at present, recognized the existence of environmental rights in the US Constitutions. Moreover, changes to the current interpretation and content of certain fundamental rights may face resistance. There might be a natural tendency to wait for additional legislation, legal battles and ongoing debates. However, it is important to note that a plethora of referenda, legislative discussions, grassroots campaigns, comprehensive studies, scholarly writings and extensive litigation in both state and federal courts have significantly deepened our comprehension of environmental rights and environmental justice. It was more than 60 years ago that Rachel Carson was credited with the first written suggestion that there should be a human right to a healthy environment. ⁴⁰ Her work, however, served to push for constitutional amendments, instead of searching and enforcing environmental rights pursuant to the current content of the US Constitution. ⁴¹

As such, some have proposed constitutional amendments providing an express recognition of environmental rights: “The natural resources of the nation are the heritage of present and future generations. The right of each person to clean and healthful air and water and to the protection of the other natural resources of the nation, shall not be infringed upon by any person.” ⁴² But a constitutional amendment is very difficult to achieve —and in practice unnecessary. States may understandably oppose transferring powers to the Federal Government and Federal courts, or setting unclear limits on State's right to deal with balancing competing legal interests, such as economic development and a clean environment. Hence, States may oppose a federal constitutional amendment on the ground of defending their autonomy and ultimately federalism.

Further, some issues relating to the environment—and in particular climate change—have become highly politicized and part of so-called culture wars that produce social division, ⁴³ which may prevent reaching the broad consensus required to amend the Constitution. It is desirable, therefore, to look for grounds in the current text and implicit content of the US Constitution.

Why Constitutional Grounds Matter

The Constitution is the supreme law of the United States and is highly revered by courts and scholars alike, even if its content may be subject to wide-ranging interpretations. The Constitution is very important because it sets up a system of checks and balances that ensures that no branch of government and no State, has too much power; and it defines the scope and limit of government power and individual rights with supremacy. The Constitution, as explained above, cannot be easily amended, which provides stability and endurance to constitutionally protected rights. Nothing can be legally superior to the Constitution. ⁴⁴

Constitutional rights are fundamental. Enshrining environmental rights in the Constitution ensures that these rights are taken seriously and are less susceptible to being undermined or ignored by lawmakers and governments. If environmental rights are constitutionally protected, governments can be held accountable for their actions and policies related to the environment. Also, citizens can take legal action if such rights are infringed. Further, intergenerational equity could be achieved by ensuring that present generations have a responsibility to preserve the environment for future generations.

Often in cases involving environmental statutes and government actions, the Supreme Court starts the analysis assuming that environmental regulations place a burden on the freedom of the alleged polluter and that it is the government who must prove the constitutionality of the regulation or action taken under the statute. ⁴⁵ Some scholars tend to emphasize property rights and individual liberties, almost reduced to their minimum literal content and oppose the recognition of broad substantive rights, including environmental rights. ⁴⁶ While some environmental statutes include provisions aimed at protecting certain environmental values, these are often narrowly tailored to address specific issues. That is why environmental rights must be put on an equal level and in the same hierarchy of other constitutionally protected rights. Environmental rights should not be considered inferior to any other rights, because the former can profoundly affect large groups of people and future generations. Environmental rights should be recognized as fundamental rights under the current text and content of the US Constitution.

Defining Fundamental Rights

Fundamental rights are a category of rights recognized by the Supreme Court as warranting the highest level of protection against government interference. ⁴⁷ These rights are either explicitly outlined in the Constitution, particularly in the Bill of Rights, or have been inferred through legal interpretation, such as through the Due Process Clause of the Fifth and Fourteenth Amendments. They are considered ‘fundamental’ because they are deemed essential for safeguarding individual liberty and, as such, are preserved in the Constitution. Laws and government actions that infringe upon fundamental rights typically face strict scrutiny, a vigorous judicial standard, to determine their constitutionality.

The identification and protection of fundamental rights represent a cornerstone of the judicial duty in interpreting the Constitution. The Supreme Court has emphasized that this duty cannot be reduced to a simple formula but demands the exercise of reasoned judgment in recognizing individual interests so vital that the State must uphold them with the utmost respect. ⁴⁸ Courts must consider various factors, much like the analysis of other constitutional provisions that establish broad principles rather than detailed mandates. ⁴⁹

History and tradition play a significant role in guiding and shaping this inquiry, providing a valuable framework, but they should not confine its limits. This approach respects the lessons of history and draws wisdom from it, all while allowing the present to evolve independently, avoiding the undue constraint of past norms on contemporary circumstances. That means that substantive environmental rights can be recognized under the content of the US Constitution even if courts have previously failed to state as much. Such recognition would subsequently allow individuals and communities to fight for environmental justice.

Substantive Rights and Environmental Justice

The two Due Process Clauses of the US Constitution can serve as a strong legal ground for substantive environmental rights, as those clauses extend not only to procedural issues but also focus on the content and substance of constitutional protections. The Due Process Clauses of the Fifth and Fourteenth Amendments cannot be limited to requiring a hearing and listening or reading arguments before taking a decision on a particular issue. ⁵⁰

Substantive due process focuses on ensuring that government actions and omissions, including laws and regulations, are fundamentally fair, just and reasonable in their substance and impact on individual fundamental rights. Among those, substantive environmental rights, under the recognition proposed in this paper, can guarantee individuals the right to a clean and healthful environment, access to clean air and water, protection of ecosystems and the prevention of environmental harm. These rights establish a fundamental entitlement to environmental quality and health and well-being.

A clean environment involves something of substance, that is to say of essence and merit and not mere form. It requires truly considering and reasonably analyzing arguments on their merits. Substantive Due Process is not, in and of itself, a substantive right to a clean environment, but as will be explained below in Part Four, the latter can be inferred, or emanate, from the former.

The Constitution cannot be reduced to forms and procedures as goals in and of themselves. ⁵¹ State courts have recognized that State constitutions, and statutes like the Environmental Protection Act of Michigan, can create substantive rights which apply, among other things, to administrative condemnation proceedings and are the subject of judicial review of those proceedings. ⁵² Analogically, the same should apply to federal courts and federal statutes and, of course, to the US Constitution.

Environmental regulations that significantly restrict the use of property have been evaluated posing Due Process as a restriction. Issues related to land use, zoning and development often involve balancing the government's interests in regulating land use for environmental and public welfare against property owners’ rights under substantive due process. But the other side of the same coin is that substantive due process must be extended, particularly, to situations where government actions, omissions, or regulations impact individuals’ or communities’ access to a clean and healthful environment, or when those actions pose significant health and safety risks.

Individual rights and freedoms, while highly valued, must coexist within a framework of law, order and social responsibility to maintain a just and well-functioning society. Pollution and man-made climate change pose a fundamental threat to a well-functioning society implicit in or concept of ordered liberty. ⁵³ Theoretically, governments could, under their broad powers to regulate land use, solve some of the pollution and environmental justice problems. However, governments necessarily have to deal with competing interests, like economic development. Some competing interests can weaken the pursuit of environmental justice. And, notwithstanding the cost-barriers of litigation, no one is better placed than adversely affected individuals and communities to fight for environmental justice. Those individuals would be better equipped to undertake such fight if they are afforded the recognition of an underlying and fundamental right closely connected to environmental justice, i.e., the right to a clean environment.

Legal Effects of Fundamental Rights

Governments in the United States are restricted from violating the fundamental rights of citizens and residents. When fundamental rights are violated, individuals have the right to seek legal remedies. This may involve filing a lawsuit to challenge the government's actions or seeking redress in the form of damages or other appropriate relief. The US federal legal system allows for judicial review, where the judiciary can assess the constitutionality of laws, policies and government actions in light of fundamental rights. Courts can declare laws or actions unconstitutional if they violate these rights. ⁵⁴

If a law or government action is challenged on the basis that it affects a fundamental—constitutional—right, the government must prove that the law is necessary to further a compelling government interest and that it is narrowly tailored to achieve that interest. These rights must be proactively protected and respected by laws and by the government. Omissions can also be adjudged.

Fundamental rights act as a shield against government and other actions, or lack thereof, that infringe upon these rights. When government authorities or institutions violate an individual's fundamental rights, there can be legal consequences, including the nullification of the government action, compensation for damages, or the possibility of other legal or equitable remedies. Fundamental rights can be enforced in courts of law, which can issue judgments and orders to protect and uphold those rights.

Government officials or agencies responsible for violating an individual's fundamental rights can be held accountable and liable for their actions. This can include civil and criminal penalties for those responsible In some cases, legal consequences may lead to changes in legislation and government policies to ensure that fundamental rights are better protected. Courts may issue decisions that set legal precedents, influencing future policies and practices. The recognition and enforcement of fundamental rights can serve as a preventive measure, deterring government and non-governmental actors from violating these rights due to the potential legal consequences.

Part Four: Right to a Clean Environment and Justice

The US Constitution does not explicitly reference the right to a clean environment. ⁵⁵ Therefore, establishing a substantive home for this right requires either implicit constitutional interpretations, or demonstrating that such a right is deeply rooted in the nation's history and tradition as an essential component of “ordered liberty." ⁵⁶

The Fifth and Fourteenth Amendments contain Due Process Clauses, with similar language protecting “life, liberty and property,” but they differ in their applicability, scope and the incorporation of specific rights. The Fifth Amendment applies to the federal government and has been less involved in the process of incorporating the Bill of Rights. The Fourteenth Amendment, on the other hand, extends due process protections to state and local governments and has played a significant role in incorporating individual rights from the Bill of Rights to apply at the state level. However, the content of the Due Process Clauses of those two Amendments imply a fundamental right to a clean environment, which can in turn serve as substantive ground and starting premise to achieve environmental justice, by providing individuals and communities with effective private causes of action to fight environmental inequalities.

Some plaintiffs have argued in court that the government violated their constitutional rights, including a claimed right under the Fifth Amendment Due Process Clause to a climate system capable of sustaining human life, alleging climate-change related injuries to the plaintiffs caused by the federal government continuing to “permit, authorize and subsidize” fossil fuel. ⁵⁷ Unfortunately, the United States Court of Appeals for the Ninth Circuit held that that plaintiffs did not have standing to bring their claims as they failed to show that the relief they sought was substantially likely to redress their injuries and plaintiffs failed to establish that the specific relief they sought was within the power of a court. ⁵⁸ The Court, however, did not deny that the Due Process clause contains a right to a clean environment.

By understanding that environment rights are a part of the US history, tradition and ordered liberty, and penumbras of the Fifth and Fourteenth Amendments, those rights can serve as a strong foundational legal tool to fight for environmental justice.

History and Tradition of Environmental Rights

The right to a clean and healthy environment is contained within the nation's history and tradition and concept of ordered liberty. It is true that the Due Process Clauses and other US Constitutional articles, do not include express or explicit guarantees that a citizen shall be secure against lethal environmental poisons distributed either by private individuals or by public officials. However, that is likely because the drafters of the Fifth and Fourteenth Amendments, despite their considerable wisdom and foresight, could conceive of no such problem. ⁵⁹ That does not mean that the drafters did not consider environmental rights to be important; rather, they may have taken them for granted as implicit.

Many constitutional provisions were reactive in nature, meaning that they were drafted to address existing problems, such as slavery, obstruction of voting rights and abridgement of important liberties and freedoms. During the era when all US Constitutional provisions were originally drafted, society's understanding of the magnitude, pace and adverse consequences of environmental degradation was not sufficiently advanced to justify the inclusion of ecological concerns. However imperfect, the general cleanliness and health of the environment was not grave or particularly concerning when the Fifth and Fourteenth Amendments were enacted in the 18th and 19th centuries, respectively.

The United States enjoyed a fundamentally clean environment at those particular times. This was true even for urbanized areas where pollution was greater than in more rural settings. In the eighteenth century and in the early nineteenth century, there was primary focus on conserving natural resources for practical and economic reasons. The concept of conservation was rooted in the idea of responsible stewardship, such as sustainable forestry practices and the protection of game animals for hunting. The establishment of national parks and forest reserves in the late 19th and early 20th centuries marked a shift toward preserving natural landscapes for their aesthetic and recreational value, as well as for the sake of conservation.

Over time, the focus of environmental protection expanded to address issues such as endangered species conservation, biodiversity, habitat preservation, climate change and environmental justice. ⁶⁰ There has never been a time when degrading the environment has been seen as something desirable or positive in our nation; ⁶¹ at the most, damage to the environment may be viewed by some as a necessary evil, but an evil nonetheless. ⁶² Generally, environmental degradation is viewed negatively because it refers to the deterioration of the natural environment through various human activities. It has been historically clear that economic development and environmental conservation should be, as a minimum, balanced. ⁶³

Economic and commercial rights and freedoms, as main potential curtailers of a fundamental right to a clean environment, have never deemed to be absolute. They are subject to legal, regulatory and societal constraints in most countries, including the United States. While individuals and businesses have significant economic and commercial liberties, those freedoms are typically balanced with other important values and interests, such as public welfare, consumer protection and environmental conservation.

Principles and traditions demonstrate that environmental rights are fundamental under the Constitution. The United States has a history of environmental protection measures or a tradition of considering the environment as a vital component of its social and cultural heritage, which is evidence that environmental rights are deeply rooted in the nation's legal and cultural traditions. Also, the US is also signatory to international environmental agreements, which reflect the nation's acknowledgment of the importance of the environment.

There is simply no legal, social, or historical authority that ever tried to justify that adverse environmental impacts, including pollution, had to be taken as inevitable, much less as beneficial. The vast majority of people in the United States recognize that pollution and environmental degradation can have harmful consequences for human health, ecosystems and the planet as a whole. As a result, there is widespread historical support for environmental conservation and the reduction of adverse environmental impacts.

The main two historical events that have profoundly impacted the environment in a negative way were the Industrial Revolution (c. 1760 to c. 1840) and the Technological Revolution, also known as the Second Industrial Revolution (late nineteenth century into the early twentieth century). ⁶⁴ The environmental impacts of such events were not passively accepted, nor considered positive or desirable by anyone in the United States. ⁶⁵

As soon as such impacts were perceived with significance, important political and collective voices were raised, including for instance that of John Muir, who founded the Sierra Club in 1892. The establishment of the first national parks in the United States, such as Yellowstone in 1872, marked conservation initiatives. The Rivers and Harbors Act of 1899, ⁶⁶ aimed at preventing the pollution of navigable waters. In the nineteenth century and in response to the Technological Revolution, very important pieces of legislation were passed, including the Clean Air Act of 1963, ⁶⁷ as subsequently amended, to regulate air pollution and protect air quality and the Clean Water Act of 1977, ⁶⁸ which established the framework for regulating water pollution and maintaining water quality.

Private actors, including notably petroleum companies (traditionally considered as significant polluters), have historically been trying to develop cleaner technologies, at least as much as they have become economically practical or commercially justifiable. They may have not done the foregoing altruistically; it is undeniable that collective social pressures have historically been important in pushing private actors for a clean environment. But the existence of such historical social pressures, by itself, demonstrates that a clean environment is deeply rooted in the traditions of the United States.

Social pressure pushing for a clean and healthy environment has increased since an overwhelming scientific consensus was reached that Earth is warming as a direct result of human GHG emissions, primarily from the burning of fossil fuels. ⁶⁹ Concerted efforts to abate greenhouse gas (GHG) emissions materialized relatively early even in international law. ⁷⁰

Increase in atmospheric CO2 is 100 times faster than in natural CO2 fluctuations and cycles and it is happening in a very short timeframe that is unprecedented in the geologic record. It is now clear that the continuous rise in atmospheric CO2 has caused global, air temperatures to rise, as measured by meteorological stations. Total global temperature rise over the last 120 years is on average 2.2°F, or about l.2°C.

The response in the United States, both from a social and a legal standpoint, toward such climate change realities has been loud and almost unanimous. This further evidences that the environment continues to be an issue that is taken seriously nationwide.

Environmental Rights and Due Process

Environmental rights, as a premise necessary to achieve environmental justice, are, as a minimum, an integral part of broader entrenched constitutional rights. As explained in Griswold v. Connecticut, “specific guarantees from the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” ⁷¹ Environmental rights are extension or penumbras of the Due Process Clause of the Fifth and Fourteenth Amendments.

Penumbras are rights inferred from the text, structure, or principles of the Constitution and they are typically recognized and protected by courts and legal authorities. Emanations or penumbras of rights are often associated with the interpretation of rights and liberties in constitutional law. In Griswold, 381 U.S. 479, the Supreme Court held that a right to privacy could be found in the “penumbras” (shadows) of various constitutional provisions, including the Fifth Amendment. That case established the idea that certain rights, such as the right to privacy, are not explicitly mentioned in the Constitution but can be inferred from the Constitution's fundamental principles.

The concept of emanations of constitutional rights justifies the recognition of rights related to privacy, autonomy and personal liberty, even when these rights are not explicitly listed in the Constitution. It allows the Constitution to apply to changing societal structures and new factual realities, such as the increased pollution and environmental harms brought about by industrial revolutions.

The protection of life is expressly mentioned in both the Fifth and Fourteenth Amendments. A clean and healthy environment is essential for human life and well-being. Access to clean air, water and a pollution-free environment is critical for the preservation of life. Polluted environments can lead to a range of health problems, including respiratory diseases, waterborne illnesses and exposure to hazardous chemicals. Protecting the environment is, therefore, a fundamental aspect of safeguarding human life and health. Also, for instance, “the weight of Supreme Court precedent and the persuasive precedent of the Courts of Appeals reveal that the Fourteenth Amendment's right to bodily integrity is violated when the government induces unwitting citizens to consume lead-contaminated water without their consent.” ⁷² Bodily integrity is protected by substantive due process, and because such integrity is a condition for the possibility of life, it forms an expanding penumbra under the Fifth and Fourteenth Amendments.

Liberty is also expressly mentioned in both the Fifth and Fourteenth Amendments. Individual liberty and personal freedom are closely tied to the ability to make choices and live one's life without undue burdensome interference. A polluted or environmentally degraded environment can limit personal freedom and autonomy. For example, if the air is heavily polluted, individuals may be restricted in their outdoor activities and may need to take burdensome precautions to protect their health. Additionally, environmental contamination can limit choices, such as where one can live or work.

There has been extensive and credible expert testimony explaining that that climate change and the air pollution associated with it have negatively affected children, for instance in Montana, with a strong likelihood that those impacts worsen in the absence of aggressive actions to mitigate climate change. ⁷³ Also, that mitigating climate change now, will benefit humas now and for the rest of their lives. ⁷⁴ Those can directly affect human choices and liberties.

Property is also expressly mentioned in both the Fifth and Fourteenth Amendments. Property values are often closely tied to the quality of the surrounding environment. ⁷⁵ A clean and healthy environment can enhance property values, making a property an attractive investment for owners. Conversely, environmental degradation, pollution, or the proximity to hazardous sites can significantly diminish property values. Environmental rights may impact what individuals can do with their property. Conversely, zoning laws may unfairly permit industrial activities in residential areas, affecting the health and well-being of property owners.

A right to a clean and healthy environment is implicit in, or is as a minimum an emanation or a penumbra of, the rights to life, liberty and property. Substantive due process relating to a clean and healthy environment, as a legal concept that is part of the broader concept of due process of law, means that environmental rights are so fundamental that they must be protected from unfair or inequitable government interference (laws and executive actions or inactions), regardless of the procedures used in legal proceedings.

Environmental Justice as a Consequence of Substantive Rights

As explained above, the right to a clean environment is part of the US history, tradition and concept of ordered liberty. Further, the Due Process clauses of the Fifth and Fourteenth Amendments, in mentioning life, liberty and property implicitly recognize a substantive right to a clean environment. Therefore, disadvantaged and disproportionally affected communities (including poor people and racial minorities) have (or should consequently have) a constitutional cause of action to fight environmentally unjust or inequitable laws and government actions—and omissions—not necessarily based on equal protection grounds. Environmental justice is separate but closely connected to environmentalism. “Given the issues that have drawn minorities into the environmental movement (e.g., social justice and equity issues) and the indigenous black institutions that have initiated and sustained the movement, an integrated model is used to explain the emergence of environmentalism in black communities.” ⁷⁶

The Due Process Clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution have been invoked by individuals and communities seeking to challenge governmental actions—or failures to act—that result in disproportionate environmental harm. These clauses, which prohibit the government from depriving any person of life, liberty, or property without due process of law, provide a constitutional basis for asserting certain substantive environmental rights, particularly within the framework of environmental justice. A prominent example is the case of Juliana v. United States, ⁷⁷ in which a group of youth plaintiffs alleged that the federal government's affirmative promotion of fossil fuel extraction and use violated their constitutional rights under the Due Process Clause by contributing to climate change and thereby threatening their health, safety, and future. While the Ninth Circuit acknowledged the severity of the plaintiffs’ injuries and the government's role in contributing to those harms, it ultimately held that the claims were not redressable by the judiciary, dismissing the case for lack of standing. Importantly, however, the decision did not foreclose the possibility that due process might support environmental claims in future litigation; rather, the court declined to grant relief due to the institutional limits of the judiciary in crafting and supervising the broad remedies requested.

As the right a healthy environment in enshrined in the Due Process Clauses of the Fifth and Fifteenth Amendments, there is an implicit or consequent legal duty for the government to protect and enhance the environment in a way that benefits all citizens. Environmental justice aligns with this principle by emphasizing that all citizens of the United States, without distinction, have a right to live in a healthy environment. Constitutional environmental rights justify legal provisions that grant individual citizens access to justice, allowing them to challenge government actions and inactions, that harm the environment or infringe upon their rights. This access to justice is critical for marginalized communities seeking relief from environmental injustices.

Furthermore, constitutional environmental rights can promote community participation in decision-making processes related to the environment. Constitutional environmental rights can also advance Environmental Justice by empowering affected communities by ensuring they have a say in policies, regulations and projects that may impact their environment.

In fact, a positive example is that as a direct recognition of environmental rights, individual plaintiffs in Montana challenged a system under which the government permitted three types of fossil fuel-related activities: (1) extraction of fossil fuels; (2) processing and transportation of fossil fuels; and (3) consumption of fossil fuels by end users. ⁷⁸ The plaintiffs specifically contested a provision referred to as the “MEPA Limitation,” which prohibited Montana agencies from taking into account the effects of greenhouse gas (GHG) emissions or climate change in their environmental evaluations. ⁷⁹ Instead of conducting a comprehensive cost-benefit analysis that weighted the benefits of a coal mine against the detrimental impacts of its GHG emissions, regulators were restricted under the MEPA Limitation to only considering local public health and environmental effects as costs. The court intervened to nullify two state laws that obstructed courts and agencies from factoring in the climate impacts of proposed projects. ⁸⁰

For federal cases, however, plaintiffs fighting for environmental rights and environmental justice will need to argue and prove that they have (1) a concrete and particularized injury that (2) is caused by the challenged conduct and (3) is likely redressable by a favorable judicial decision. ⁸¹

Conclusion

The quest for environmental justice in the United States requires a firm and lasting legal foundation. Recognizing the right to a clean, healthy and sustainable environment as a fundamental right within the current text and content of US Constitution, specifically under the Due Process Clauses of the Fifth and Fourteenth Amendments, is a crucial step toward achieving this goal. Such recognition would empower individuals and communities to fight for environmental justice through private actions, and allow courts to subject any infringement of constitutionally recognized environmental rights to rigorous judicial review, ideally employing strict scrutiny. By solidifying the right to a clean environment in the constitutional framework, the way can be paved for a better and stronger environmental justice.