January 1, 1998

CRC Considers Environmental Rights Proposals

Lawrence E. Sellers


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. 

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