The Environmental Law Program held the Ward Kershaw symposium followed by the 2015 Fedder lecture on November 20, 2015. Both focused on the inclusion of environmental provisions in constitutions. Students (Melissa Sager, Hannah Ernstberger, Robin Cleland and Bryan Smith) from Prof. Percival’s Global Environmental Law Class prepared a report at the request of Rabbi Nina Beth Cardin and the Central Maryland Ecumenical Council addressing whether Maryland should adopt an environmental amendment to its state constitution. Students Robin Cleland (2L) and Bryan Smith presented the report at the Ward Kershaw Symposium, a survey of all 50 states (22 have constitutional amendments that address the environment) and countries from around the world that have addressed the environment in their constitutions.
The students’ presentations noted the different forms of environmental amendments, categorizing them as those giving “substantive rights” to citizens and those that provide policy directives. Despite widespread adoption of such amendments, courts have been reluctant to apply either type of amendment to direct government policy or provide a private action with one notable and recent exception: the Pennsylvania Supreme Court case, Robinson Township v. State of Pennsylvania. In Robinson, the Court, relying on an environmental amendment in the Pennsylvania Constitution Declaration of Rights, §27 struck down a state law that stripped local governments of the right to limit hydraulic fracturing (fracking) for oil and gas in their communities. The Court found that the state law was unconstitutional in that it violated §27.
The student presentations concluded that adopting an environmental constitutional provision can be (but is not necessarily) helpful in directly protecting the environment, but can be helpful indirectly through supporting more protective interpretations of environmental regulations and statutes and providing an authoritative moral foundation for environmental protection efforts.
After the student presentations, James R. May, Distinguished Professor of Law at Widener University Delaware Law School and author of Global Environmental Constitutionalism gave the 2015 Fedder Lecture on “Constitutions and the Environment.” Prof. May agreed with the students’ findings, but asserted that inclusion of environmental amendments in constitutions has been a growing trend over the past 40 years and that trend supports environmental protection in many ways, including elevating the importance of environmental protection in societies which adopt these amendments. Prof. May also noted that, due to the slowly developing nature of constitutional jurisprudence, the effect of these recently adopted environmental amendments are slowly developing as well. Prof. May concluded that Pennsylvania’s recent Robinson Township case could be a harbinger of the growing importance of environmental constitutional amendments’ role in protecting the environment.