CRC Considers Environmental Rights Proposals
January 1, 1998
Lawrence Sellers- Tallahassee
Introduction.
The Florida Constitution Revision Commission recently has completed a series
of public hearings for the purpose of taking public testimony on possible
changes to Florida's Constitution. Several speakers have suggested that an
"environmental bill of rights" or "environmental rights amendment" be added to
the Florida Constitution.
This article describes two of these proposed amendments and identifies some of
the questions that are being debated as these proposals are considered by the
Constitution Revision Commission.
Florida's Current Constitutional Provision.
Florida's Constitution currently includes a provision establishing the state's
environmental policy:
Section 7. Natural Resources and Scenic Beauty.--
(a) It shall be the policy of the state to conserve and protect its natural
resources and scenic beauty. Adequate provision shall be made by law for the
abatement of air and water pollution and of excessive and unnecessary noise.
As can be seen, the first sentence establishes a policy statement or
aspirational goal. The second sentence directs that "adequate provision" shall
be made by law for the abatement of air and water pollution of excessive and
unnecessary noise. In accordance with this constitutional directive, the Florida
Legislature has enacted a number of laws designed to protect Florida's
environment and natural resources. These laws range from provisions designed to
address air pollution to measures dealing with wetlands. In addition, various
regulatory agencies within the executive branch have adopted a host of
implementing rules designed to protect the environment.
Other State Constitutions.
Several other states have provisions in their constitutions establishing a
"right to a healthful environment." These environmental provisions appear to
fall into three categories: some provisions are simply policy statements or
aspirational goals; some provisions are directive, meaning that the legislature
is required to take some specific action to protect the environment; and some
provisions are self-executing or enforceable through the courts.
Florida's current constitutional provision falls into the first two categories;
it includes a policy statement or aspirational goal, and it directs the
Legislature to take some specific action to protect the environment. The current
constitutional provision is not self-executing, and therefore does not fall into
the third category.
The Two Proposals.
The Florida Constitution Revision Commission is considering two formal
proposals. Proposal No. 38 would create an Environmental Bill of Rights.
Proposal No. 36 would add an Environmental Rights Amendment to Florida's
Constitution.
Proposal No. 38: An Environmental Bill of Rights. Florida Department of
Environmental Protection (DEP) Secretary Virginia Wetherell has recommended the
adoption of an "Environmental Bill of Rights." Commissioner Jon Mills has filed
this proposal, and it has been denominated as Proposal No. 38. It would add a
new Section 26 to Article I, Declaration of Rights:
Section 26. Environmental Bill of Rights.-- Every person has a right to live in
an environment that is free from the toxic pollution of manufactured chemicals;
to protect and preserve pristine natural communities as God made them; to ensure
the existence of the scarce and fragile plants and animal species that live in
the state; to outdoor recreation; and to sustain economic success within our
natural resources capacity.
Proposal No. 36: An Environmental Rights Amendment. Clay Henderson, one of the
members of the Commission and the president of the Florida Audubon Society, also
has suggested adding an "Environmental Rights Amendment" to the Florida
Constitution. This proposal has been denominated as Proposal No. 36, and it
would add a new Subsection 7(c) to Article II:
(c) The natural resources of the State of Florida 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 other natural resources of the state shall not be
infringed upon by any person.
This suggested Environmental Rights Amendment is virtually identical to a
proposed amendment to the U. S. Constitution that is being promoted in a number
of states. It also is very similar to a proposed amendment that was promoted in
Florida in 1984.
Questions Being Debated.
As of this writing, both of these proposals have been referred to a committee of
the Commission, and at least one public hearing has been held on Proposal No.
36. During this public hearing, a number of questions were raised. Some of these
questions are briefly described below.
Is It Appropriate? Amendments that are aspirational and that confer citizen
rights are rare in the Florida Constitution. For example, there is no right to
well-paying employment, or to adequate health care, or to safe and durable
housing.
Is It Clearly Wanted? Such aspirational, substantive rights amendments are
infrequent because they are reserved for those policies that are the result of a
broad and deep social consensus. Is there a well-formed nucleus of social
consensus on this subject?
Is It Necessary? Even if there is a meaningful public consensus for the desired
social policy, an amendment to the Constitution typically is reserved for those
instances in which there is strong reason to believe that the institutions of
government will fail to bring about the desired policy if left to their own
constitutional authorities. As noted, Florida's legislative and executive
branches already have enacted numerous comprehensive measures designed to
protect Florida's environment. In addition, Florida's Constitution already
includes a provision that establishes that it is "the policy of the state to
conserve or protect its natural resources and scenic beauty," and this existing
provision dictates that "adequate provisions shall be made by law for the
abatement of air and water pollution and of excessive and unnecessary noise."
Is It Self-Executing? Or does it require additional action by the legislative
branch? This is the issue that has drawn the most debate, with many of those
opposed to the proposal expressing concern that it would create an additional
cause of action. If it is self-executing, what are the standards for measuring
whether this right has been violated? For example, may a court determine that a
facility or activity that complies with all applicable laws and regulations
nonetheless must be halted because it violates a plaintiff's "right" to "clean
and healthful air and water?"
These and other questions likely will be addressed by the Constitution Revision
Commission as it determines what proposals will be placed on the November 1998
ballot.