A constitutional amendment to protect the environment

Nicholas Caleb

By Nick Caleb of Eugene, Oregon. Nick describes himself as "a third year law student at the University of Oregon with a bachelor's degree in Molecular Biology from Concordia University in NE Portland. Last summer, I worked as a policy analyst for Dr. Vandana Shiva in Delhi, India."

Oregon is taking measures to lead the way on green energy policy. We are leaders in land use policy (excluding the measure 37 period) and in our general attitudes toward environmental protection. We also have two law schools ranked in the US News and World Report Top 10 in environmental law programs. In other words, Oregon is at the intellectual forefront in the movement to protect the environment.

Unfortunately, the federal effort to regulate environmental degradation is in shambles. The ground gained in the 60’s and 70’s with the creation of the world’s largest environmental regulating bureaucracy has been largely, if not totally, lost. This is due to our wise leaders in the executive branch (most notoriously Bush II) stacking federal agencies with representatives of the industries they are designed to regulate. These industry plants then engage in a procedural battle against regulation, claiming deference for nearly all decisions, to which federal courts have largely acquiesced. Plus, citizens and environmental advocacy groups are almost totally excluded from administrative process. Add in a willingness to edit science for political purposes and voila, our government actually functions to increase the speed at which environmental degradation occurs.

Certainly, if a Democrat is elected to the executive branch, he or she could temporarily fix the problem with some good agency appointments and a reinstitution of sound public policy directives. However, there is no guarantee that when the next Republican administration gains power the revolving door will not immediately return to the all too familiar state of spinning-out-of-control. Clearly, we need to think of a more permanent solution to the problem.

One possible solution is an amendment to the U.S. Constitution that somehow codifies a guarantee of environmental protection. Article V of the U.S. Constitution, reads, in relevant part:

"The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress[.]"

Oregon could lead the way on environmental protection and climate change policy by calling for a convention to propose amendments to the Constitution.

Success would be a longshot, but really, why the hell not? We may very well be entering into a period of grassroots activism and a return to populism. An Inconvenient Truth brought the environmental movement back in to the mainstream, while irresponsible corporatism has our economic system on the brink of total collapse. Even the Republican candidate for President has been forced to acknowledge environmental problems for fear of being considered ignorant. People might actually be in the mood for radical change.

What do the good people at BlueOregon think about the idea of a Constitutional Convention? What would the public relations effort look like? What kind of language would we use? I’m personally partial to some sort of federal and state “public trust” language; something guaranteeing that natural resources are property of the people of the United States held in trust for current and future generations.

This is my first attempt at a post on BlueOregon and I’m interested to see what sort of desire there is in Oregon for undertaking such a challenge. Discuss!

Comments

  • (Show?)

    A major problem with a constitutional convention is that apparently it can't be restricted to a single topic. So even if you got one, it might not pass your environmental amendment but might be say hijacked by nativists to deny citizenship to persons born here of non-citizen parents.

    I'm not sure how far the "public trust" language gets you, particularly if put in terms of "resources" -- would the egregious public lands law of 1872 really be affected by that? Also, it seems to me that inherent in what you're talking about is some sort of strengthening of eminent domain over private property, which as Measure 37 may suggest might be a tough row to hoe.

    One thing to consider might be simply to say that the Congress may make laws to protect the sustainability of the ecology in all territories of the United States, i.e. remove environmental regulation from dependence on the interstate commerce clause.

    Another thing that might have relevance would be to seek language redefining corporations as having responsibilities not only to shareholders but to communities in which they operate and to the sustainability of the economic ecology. Part of the idea would be to put trusteeship or stewardship into the definitions of corporations and private property. I am not sure it would even be possible to find sensible language for this, the idea is not well thought out. Once again it would also involve a fairly massive shift in the balance of federalism.

    A somewhat related idea, one that perhaps Vandana Shiva's work could bear on, would define the air, the water, the soil in its life-sustaining properties, the flora and fauna and conditions of their reproduction as common heritage and property, and empower the congress to make laws requiring corporations and other private parties that impose costs and damages on those commons to make them whole, or to recover such costs so that the government could do so. Again, federalism and property rights problems.

    Oh, and revise the sections on patent and copyright (already national) to restrict or eliminate private intellectual property in the processes and outcomes of genetic modification of any life forms.

    But that's all pie in the sky (or something nastier than pie, in the eyes of many, I suspect). I don't see a constitutional convention as either practical, nor particularly desirable, absent an organized progressive mass movement that we lack. A convention organized within current power structures likely would just entrench what already bothers you.

    (BTW, have a read of Private Power and American Democracy by Grant McConnell, 1966 I believe, for a historical perspective on captive agencies and also the problem of overweaning private power in local contexts.)

  • Winter (unverified)
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    Nick - Several states have implemented constitutional provisions regarding environmental protection including Montana and Michigan, which are two of the most well-known examples. You should look into those if you are interested in pursuing this idea. State provisions have run into several legal problems (e.g. are they "self-implementing" or do they require follow up legislation) but also hold great potential in reshaping the debate about clear air, water, and land as fundamental rights. A state constitutional provision could possibly get legs here in Oregon if framed with right way.

  • What? (unverified)
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    "Clearly, we need to think of a more permanent solution to the problem."

    What? Perhaps we need to discuss the topic with our grandparents to gain a sense of what has been accomplished with current laws. No more dusting each evening because of the soot from factories transported through homes. White clothes stay white. As RN's from years ago how black the bottom of the nurses gowns were each evening or end of shifts - and that was in hospitals. You can actually swim in most rivers and streams today, well except the stretch of Willamette through Portland. No more radioactive dust being spewed downwind of nuclear facilities in lethal concentrations. Central sewer that treated to levels that can be consumped by humans (Orange Co.) and no more outfalls of raw sewage into streams/ditches - well except for Portland, OR. Death due to disease and infenstation are at an all-history low. I could go on and on, but why - just ask some older and wiser people to give you there memory of poverty and environmental damage in their youth.

    All without a Constitutional Amendment.

    We and the Environment are much, much better than when our parents and grandparents were growing up and yet we act like the apocolypse is coming. History doesn't start when we first begin remembering.

    We've come a long way baby...let's keep some perspective here while we hear about Doom & Gloom peddlers we call "politicians."

  • Urban Planning Overlord (unverified)
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    I think instead of the Constitutional Convention route a standard 2/3 of Congress and 3/4 of the states is the way to go. That isn't easy.

    But the tide is turning. I just finished "Collapse" by Jared Diamond, a great book. It is becoming more and more easy to counter the arguments of the naysayers and elites who claim that that environmental concerns are a hoax.

    One additional factor regarding the proposed LNG terminal near Astoria - the 4th Circuit Court of Appeals last week ruled against an attempt by Baltimore to effectively prohibit an LNG terminal near the City, on the grounds that the Federal Natural Gas Act gave the federal government "exclusive" siting authority and preempted local government (and, I assume, state government) restrictions.

    The case is AES Sparrows Point v. Smith, decided May 19, 2008, and is available at the 4th Circuit Court of Appeals website if anyone is interested.

  • Douglas K. (unverified)
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    I'm leery of a constitutional convention. We The People really have no say as to how delegates are selected or what amendments would be proposed there, and I'd be concerned that it would be dominated by corporate interests -- which more likely than not would seek to weaken, not strengthen, environmental protection.

    I'm more interested in mining the Constitution for latent "public trust" or "environmental protection" or "right to a clean and healthy environment" principles buried within the current text. The preamble, for example, states that "We the People" created the Constitution in part to "establish justice" and "promote the general welfare" of "ourselves and our posterity." That's a basis right there to support a public trust duty in the management of the public lands and navigable waters of the United States, and perhaps to public commons such as the atmosphere.

    The Ninth Amendment has potentially sweeping application to protect rights that are not enumerated elsewhere in the Constitution. This could include any personal rights to a clean and healthy environment that have been widely acknowledged elsewhere by law or custom.

  • Randle McMurphy (unverified)
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    Chris,

    Why would any of your proposals require a constitutional amendment? The Commerce Clause endows Congress with broad powers (Lopez and Morrison notwithstanding), and and it would allow any of the regulations you propose.

    And, yes, I agree with your conclusions that an environmental constitutional amendment, particularly through the convention procedure, is neither necessary nor desirable.

  • (Show?)

    Another thing that might have relevance would be to seek language redefining corporations as having responsibilities not only to shareholders but to communities in which they operate and to the sustainability of the economic ecology.

    In light of Chris Lowe's argument in the first comment I'd say that if we have a constitutional convention you could protect the environment and a whole bunch of other stuff by the following two amendments:

    Money is not speech.

    Corporations are not persons.

    Hartmann has written volumes on both, and if these two fundamental flaws in our current system were addressed, a lot of the other issues would become instantly manageable under existing law.

  • Robert G. Gourley (unverified)
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    I think instead of the Constitutional Convention route a standard 2/3 of Congress and 3/4 of the states is the way to go.

    I too would be extremely leery of a constitutional convention, for any reason. In spite of Horace Mann's warning - It may be an easy thing to make a Republic; but it is a very laborious thing to make Republicans; and woe to the republic that rests upon no better foundations than ignorance, selfishness, and passion - citizenship seems to have declined since the original - mostly due to the fact that our public education system is geared more towards putting our better workers than better citizens. Better workers are obedient, better citizens are not.

  • Robert G. Gourley (unverified)
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    That word is out, not our. I frequently make that mistake without catching it.

  • Lou (unverified)
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    Although the idea of a Consitutional Convention strikes chords with the romantic in me, I agree with Robert that our citizenry lacks the sophistication and general altruism necessary to make one successful.

    If you get one opened up, though, I am all for any amendments that allow for the decriminalization of marijuana and open container laws, the right to ride horses downtown, the elimination of the designated hitter, and the right to physician assisted suicide including a proper burial straight into the mud on my own property without any government intrusion.

  • Robert G. Gourley (unverified)
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    If you get one opened up, though, I am all for any amendments that allow for the decriminalization of marijuana and open container laws, the right to ride horses downtown, the elimination of the designated hitter, and the right to physician assisted suicide including a proper burial straight into the mud on my own property without any government intrusion.

    Plus get government out of the marriage business for true separation of church and state!

  • (Show?)

    Randle, I'm not a lawyer, so I could be wrong, but it seems to me that much of what I'm talking about currently falls under the jurisdiction of the several states (actually under the 9th Amendment to some degree) but would be hard to change at the state level without falling afoul of the commerce clause running in the other direction -- being overturned by the Supreme Court on grounds of violating free commerce provision. But I could be wrong -- or maybe it would be possible to get part of the way there. Winter's comment is interesting. So is Douglas K.'s, though I have an impression that the Preamble is not considered to enumerate enforceable rights.

    Pat, you're right that those two changes would create a lot more room to move.

    Basically calling a constitutional convention is having a revolution without guns.

  • Douglas K. (unverified)
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    you could protect the environment and a whole bunch of other stuff by the following two amendments:

    Money is not speech.

    Corporations are not persons.

    You don't need a constitutional amendment to do those things. You need five judges on the Supreme Court who are willing to overturn some bad precedents.

    I have an impression that the Preamble is not considered to enumerate enforceable rights.

    You are correct, but it would act as an interpretive guideline for other powers exercised under the Constitution. In effect, the argument would be that the "and our posterity" language creates a duty to future generations that must be considered whenever the government acts under the Constitution. "We the People" chartered the United States government for their benefit as well as our own. "Posterity" should get a seat at the table, and the public trust is a time-honored way to make sure their interests are protected. (That principle could go well beyond environmental protection: how well are we looking out for "posterity" when we dump ten trillion dollars in debt on them with no provisions to pay it off?)

  • Douglas K. (unverified)
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    How do we shut off these italics?

  • Douglas K. (unverified)
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    Apparently, that's how.

  • Robert G. Gourley (unverified)
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    How do we shut off these italics?

    If I did that, I'm sorry - I don't know how I did that.

  • Joel S. Hirschhorn (unverified)
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    There is a lot misinformation about having the nation's first Article V convention to seek many needed amendments like getting rid of the Electoral College. Learn the truth at www.foavc.org and become a member. States have had hundreds of constitutional amendments with disaster. No Reason to fear a federal one.

  • Lee Ann (unverified)
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    Nick-

    Here's the Oregon law I told you about today.

    In 2007, the Oregon legislature passed House Bill 2826 (2007 Or. Laws Ch. 254 §1) that allows corporations to include in their articles of incorporation “[a] provision authorizing or directing the corporation to conduct the business of the corporation in a manner that is environmentally and socially responsible.”

    It's permissive only and not required.

  • Nick C. (unverified)
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    Thanks for all the comments. I really appreciate the great input.

    I'm coming at this from the angle that there is no way that the current Supreme Court is going to embrace any form of an implied public trust or any other affirmative duty on the government. I'm doing some research on the possibility of arguing that common resource property is inherent in the Constitution, due to historical theories of government - quotes from Justinian, English law about the commons, etc. It makes sense that originalists would pick up on these notions, but we all know better.

    Another way to swing the Constitutional argument is through something similar to the penumbra arguments made with the right to privacy, right to familial association, etc. The difference is that the bill of rights doesn't really have any language about trust or environmental protection. You could argue that a failure to regulate the environment is a 5th Amendment deprivation of life, assuming that a Court would buy the fact that global warming comes primarily from a failure to regulate. I don't think it is too persuasive.

    There are some federal common law arguments to be made that would resemble or come out of the Equal Footing Doctrine and the Federal Navigation Servitude. Again, I see these more as persuasive authorities that alone have no real impact.

    If one could a Constitutional mandate to protect the environment, it easily falls into step with the other protections, especially due process.

    In response to the comments from What?: my intent is not to say that the environmental movement has been a complete failure. In fact, the evolution in standard of living that you describe is amazing. I'm trying to point out that for all the good work people put into the last 40 years, mere strokes of administrative pens has largely destroyed progress and sent us moving backward when we can't afford to do so. But, if Congress supplemented enabling statutes for environmental agencies with language reinforcing the protective role of agencies and loosening standing requirements, it would help immeasurably in the short term.

    Chris Lowe: your comments are fabulous and very insightful. Thanks for that.

  • Randle McMurphy (unverified)
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    Chris,

    For what my off-the-cuff thoughts are worth (not much), I believe Congress has the power to enact all of the reforms you propose. That these reforms have not manifested reflects a lack consensus and political will, not a dearth of Congressional power. Indeed, it is difficult to overstate the reach of the Commerce Clause in the context of environmental regulation (somewhat reciprocally, I believe your reliance on the 9th Amendment is misplaced here). Alternatively, Congress can delegate authority to the states to enact or enforce environmental regulations (such as when Oregon threatens a claim against a pipeline under the Clean Water Act- the state legislature probably could not exert such influence on its own, though dormant Commerce Clause jurisprudence is tricky).

    Joel, I am going from memory here, but I believe that the U.S. had an Article V convention once before when we enacted the 21st Amendment repealing prohibition. Please correct me if I am wrong- I recall that there is frequent confusion regarding the specific procedure employed in that instance.

    Nick, I appreciate your thinking outside the box on behalf of the environment; however, I am reluctant to remove the fight from the legislature, the most responsive branch of government. Congress already has the powers to protect the environment, and it is far easier (and much preferable) to pressure Congress to pass responsible statutes (which will supersede regulations that change between administrations) than amending the U.S. Constitution.

  • JHL (unverified)
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    The last time we tried a Constitutional Amendment that was based on public policy (as opposed to the actual mechanics of government), it was an utter disaster and had to be undone.

    Pat Ryan makes an excellent point. If there is a reason why we think good public policy is being implemented where the rubber hits the road (i.e: Congress), we should address what we believe is the cause of that procedural deficiency (i.e: Questions of political financing)... not simply go over Congress' head to insert the current political trends into our nation's most sacred document.

  • What? (unverified)
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    Nick C.

    "mere strokes of administrative pens has largely destroyed progress". I don't know if that is quite the case. Nonetheless, I'd rather keep politicians on thier toes with the electorate than hide behind a Federal Agencies and the Courts. Our government was formed as a Representative Government for a reason and it would be nice to keep it that way rather than point the finger Agencies or the Courts. Speaking that - why is the Dem leadership leaning on the EPA to do the work of our legisltative body. Pass a law stating Carbon is a pollutant instead of fighting the issue in courts forcing judges to make decisions. It's called a representative government democracy - debate and pass legislation.

    Also, House Bill 2826 kind of make me queasy in the stomach. How does one define how a coporation act "in a manner that is environmentally and socially responsible.”? I have worked with many enviromentalist who would define these terms very differently Who defines this? The State? Special Interst groups? I have also seen CEO's tout and recieve Environmental Awards for doing little for the enviroment but a lot in terms of marketing and public strategic communications.

  • Bill Bodden (unverified)
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    One possible solution is an amendment to the U.S. Constitution ...

    What's the point of amending the U.S. Constitution when the Bush Administration, the majority of senators and representatives in Congress, and a majority of the people proved with the Iraq war they don't give a damn about the Constitution and are prepared to shred it if it interferes with their personal agendas?

    How many senators and representatives in Congress violated their Constitutional responsibilities voting for the war and were re-elected in 2002, 2004, 2006 and look like they will be re-elected in 2008? We have three candidates running for president, the highest office in the land, and two of them betrayed their oaths to uphold the Constitution. Despite this somewhere around two out of every three voters support them.

    Books have been written making substantial cases for the impeachment of Bush and Cheney. Despite this and the fact that the Constitution calls for impeachment, it is off the table in the House of Representatives with its Democratic (but not democratic) majority.

  • Bob Tiernan (unverified)
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    Nick Caleb:

    We are leaders in land use policy (excluding the measure 37 period)

    Bob T:

    Are you talking good leadership, or bad leadership? Do the ends justify the means? Did you love the Kelo decision? Thanks to a large segment of the population failing to protect property rights, Kelo was inevitable.

    By the way, on Halsey east of 181st there are five or eight acres being developed when only last year crops were growing there as they had for many years. So much for protecting farmland. If it's in the UGB, it must be developed. Meanwhile, you can jump for joy that this real food producing land is being paved so that we can protect crappy, rocky land elsewhere and land used for growing grass seed.

    Bob Tiernan

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