FUNDAMENTAL RIGHTS AND THE SUBSTANTIVE
OF NEPA:
THE LOGIC TO RECOGNITION OF
ENVIRONMENTAL CONSTITUTIONAL
David
Parker
134
RIGHT
VALUES
AN
"Fundamental
Substantive
The Logic To
Environmental
Rights And The
Values Of NEPA:
Recognition Of An
Constitutional Right
To: Professor S k i l l e m
For: Environmental Law
Datej Fall Semester 1977
By:
David Parker
135
CONTENTS
Page
1
Part I - Introduction and Overview
Part II - The Constitutional Framework
k
A.
The Constitutional Background
^
B.
An Environmental Constitutional Right The Logical Construct
7
1.
The Role of Judicial Review
7
2.
The Role of Substantive Values
8
3.
NEPA - Congress Implicitly Recognized
An Environmental Constitutional Right
10
Summary
12
k.
Part III - NEPA As The Framework For An Environmental
Constitutional Right
13
A.
Standing
13
B.
Standard For Judicial Review
14
C.
Burden Of Going Forward With The Evidence
16
D.
The Record For Constitutional Review
17
Part IV -- Summary and Conclusions
20
Footnotes and Comments
21
136
Part I - Introduction and Overview
The purpose of this paper is to develop the theory that sections 2
and 101 of the National Environmental Policy A c t x (hereafter NEPA) provide the logical nexus for recognition of an environmental constitutional right (hereafter ECR).
Several theories have been advanced for
2
the recognition of an ECR .
Each of the theories have merit and are
supportive of the theory this paper advances.
However, the focal
point of this paper will "be on NEPA and the key justifications it provides for a U.S. Supreme Court determination that an ECR exists.
First,
it is suggested that NEPA's section 101 and the "fundamental right doctrine" define an ECR which the Courts should enforce.
Second, it is
argued that Congress implicitly recognized an ECR in NEPA.
Finally,
it is asserted that an ECR provides the most flexible and effective
method of protecting the substantive values delineated in section 101
of NEPA.
To place in perspective the theory advanced in this paper, it is
important to briefly summarize certain environmental problems and their
ramifications in respect to our system of government.
First, protection of the environment presents unique and multi3
faced problems.'
A related problem often depicted is the inability to
accurately determine the ultimate effect of human degradation of the
environment.
Under such circumstances, common sense seems to require
a careful balancing process to reduce the chance of disaster.
The
critical issue seems to be how to plan and control human activities
whereby the proper balance of protecting the environment without un-
137
5
necessarily limiting human conduct is achieved.
Control of human conduct, to protect the environment, can be effectuated in several different ways.
First, there is legislative
action on both the Federal and State levels.
Legislative action can be
further fragmented into agency control by regulatory procedures and permit regulations, and direct sanctions against individual conduct by
fines or imprisonment.
Second, control exists through the legal process
One approach is enforcement by the common law doctrines of nuisance and
trespass.
Another approach is for the courts to recognize an envir-
onmental constitutional right.
In planning environmental protection and balancing interests, a
slightly different problem exists.
Neither the legislature nor the
courts have the capacity to make the detailed analysis required.
Operating on legislative guidelines, with varying degrees of detail,
much of the nuts and bolts planning and balancing of interests must
be done by agencies. 0
Another problem is that of certain institutional constraints
which limit the flexibility to develop solutions and effectively enforce those solutions developed.
First, the concept of federalism
may limit the ability to promptly induce State compliance with Federal
7
objectives.
Due to the irreversible nature of some environmental
problemss this may often be a critical factor.
A second problem is
dealing with the effects of giant industrial "special interest groups'".
Such groups have enormous funds to expend for lobbying and financing
litigation.
A third problem is the "bias" which exists among agencies
charged with a particular function which is not compatible with full
138
consideration of environmental factors.
A fourth problem is the
"concept of judicial review" which may induce a court to be reluctant
to exercise its power to control the effects of the above institutional constraints.
Also, Americans have strong belief systems concerning values such
as "freedom" and "capitalism" which are subject to exploration by
8
special Interest groups.
For example, mass transportation appears to
provide one viable method of dealing with some air pollution problems.
However, the American public has reacted strongly against restrictions on the use of their automobiles.
What is irrational about such
objections is not the refusal to accept automobile limitation plans per
se - instead, it is the refusal to objectively consider such plans and
the alternatives.
In conclusion, two critical issues must be recognized.
First,
there is the problem of determining how to balance environmental interests against other social factors.
Second, it must be determined
how to plan and control the environmental protection process in the
most effective and flexible manner.
In attempting to resolve both
issues, certain institutional constraints and American "values" must
be reconciled.
Specifically, this paper will analyze the viability
of the recognition of an ECR in relation to the above problems and
institutional constraints.
139
Part II - The Constitutional Framework
A.
The Constitutional Background
a
Beginning as early as I.880 , the U.S. Supreme Court has recognized.
certain privacy rights which transcend the specific enumerations of the
Constitution.
Further, other constitutionally protected interests, not
delineated in the Constitution, have evolved along side the right of
privacy.
For example, in Griswold v . Connecticut, 381 U.S. 48^ (1965),
Justice Douglas* majority opinion explained that the right to educate
a child in a school of the parents' choice"^, or the right to study the
11
German language in a private school"" , or the freedom to associate and
12
privacy in one's associations
- along with many other rights protected
by the Constitution are not specifically mentioned in the Constitution.
The rationale for protecting interests or rights which are not
delineated in the Constitution has varied with the times and the Justices.
Many words and phrases have been utilized in attempting to describe what
rights are protected by the Constitution, i.e. ..."Fundamental rights",
"Natural law rights", Rights which are protected against violation
by the "concept of ordered liberty", Rights which are violated in such
a manner to "shock the conscience", Rights which are in the "traditions and collective conscience of our people", and Rights which fall
into the "penumbras of specific guarantees in the Bill of Rights".
Griswold, supra, identifies some of the varied views concerning
protection of rights outside of the Constitution.
viewpoints seem to be relevant.
Basically, three
First, Justice Douglas states that all
rights which are "necessary in making the express (Constitutional)
140
8
guarantees fully meaningful" are to be given full Constitutional protection.
Therefore, Justice Douglas' penumbra theory seems to focus
on whether a right has been violated by the government which, if not
protected, will dilute the force of delineated Constitutional rights.
Second, Justice Harlan,in his concurring opinion, argues that the due
process clause should be construed to protect all rights which are
"fundamental" or "implicit in the concept of ordered liberty".
It
seems Justice Harlan's inquiry focuses on whether a right has bean
violated by government which, if not protected, would defeat heretofore
developed beliefs about the proper relationship between the individual
and government.
Finally, Justice Black in his dissenting opinion ar-
gues that only those provisions specifically enumerated in the Bill of
Rights should be deemed Constitutionally protected.
Accordingly,
Justice Black would recognize no right or interests of Constitutional
dimension unless they were embodied on the dusty pages of the Bill of
Rights.
13
Justices Goldberg, White and Stewart also wrote opinions in the
Griswold case.
However, it seems each of the justices' views are more
a difference in degree rather than substance.
Justice Goldberg found
a right of privacy in the Ninth Amendment.
However, such a right is
based on the "concept of ordered liberty".
Arguably, the only difference
between Justices Goldberg and Harlan is that Justice Goldberg would
require a separate finding as to whether a "fundamental right", once
found in the Ninth Amendment, would also be impressed on the states
through "selective incorporation" of the due process clause of the
Fourteenth Amendment.
Justice White's concurring opinion was simply a
141
9
statement of the proper teat to be applied in determining whether the
state law was valid (e.g. ... Strict Scrutiny or rational basis).
Justice Stewart's dissenting opinion placed emphasis on the fact that
the state law was invalid only if it violated the specific enumerated
provisions of the Constitution or procedural due process.
However, in
Roe v . Wade, 410 U.S. 113 a t 169, Justice Stewart seems to accept
Justice Harlan's theory
of substantive due process.
Two important points can be summarized.
First, through a long line
of cases beginning as early a3 1886, the Supreme Court has recognized
rights outside those specifically enumerated in the Constitution.
Second,
the test in determining whether a non-enumerated interest is subject to
Constitutional protection depends on whether Justice Douglas' or
Justice Harlan's test is applied.
Several writers have argued that
either concept is sufficiently broad to enforce some type of an en15
vironmental right.
However, in light of recent Supreme Court de-
cisions'^, it seems the Court may not be receptive to recognizing such
a right.
Justices Douglas and Harlan have presented an excellent van-
tage to understanding the penumbra and substantive due process theories;
however, other and more compelling justifications must be found.
Cer-
tainly, the Supreme Court will be reluctant in light of the Lockner
era, an already burdened Court docket, and the insecurity arising
from the struggle x*ith a new constitutional doctrine to rule favorably
on an environmental constitutional right unless the justifications are
persuasive.
However, the Supreme Court's potential reluctance to
recognize an ECR does not distract from the clear precedents that provide authority for the recognition of such a right.
7(
B.
An Environmental Constitutional Right - The Logical Construct
Most writers who have argued for an ECR end their assertions without analyzing NEPA or the substantive values implicit in proper judi1?
cial review.
It is suggested that the concept of "fundamental
rights", as identified in this paper and 'by other authors, provides
a
sufficient rationale for the recognition of an E C R .
However, it
is further suggested that NEPA and the substantive values implicit in
proper judicial review provide compelling justification for the recognition
of an E C R .
1.
The Role of Judicial Review
As has teen noted earlier, Constitutional rights have been found
and enforced which did not previously exist.
The fact that this
power exists in the U.S. Supreme Court is significant.
Supreme Court, in Marbury v . Madison
18
y
It was the
which exerted the power of
19
judicial review over Congressional acts.
In United States v . Nixon
,
the Court stated: "Many decisions of this Court, however, have unequivocally reaffirmed the holding of (Marbury v . Madison) that "it is
emphatically the province and duty of the judicial department to say what
the law is'".
The Court stated further;
"Our system of government 're-
quires that federal courts on occasion interpret the Constitution in a
manns x* 3*t variance with the construction given the document by another
branch*".
Obviously, the Supreme Court views its role as the ultimate
interpreter of the Constitution.
For the Supreme Court's role to be
\
11
consistent, its duty to declare unconstitutional those laws which are
in conflict with the Constitution must be reciprocal to a duty to recognize those rights which are protected by the Constitution.
"Fundamental
rights", "ordered liberty", and "selective incorporation" are theories
developed by the Supreme Court which provide the theoretical vehicle
to elevate selected societal interests to Constitutional dimension.
Therefore, the first block in the logical construct is that the Supreme
Court has, through its decisions, selected itself to be the ultimate
interpreter of the Constitution.
It is asserted that the role of the
ultimate interpreter of the Constitution requires the Court to recognize rights protected by the Constitution and protect those rights
from infringement by the States and other branches of the Federal government.
The second block in the logical construct is that the "concept
of fundamental rights", as developed by the Court, provides proof that
the Gourt has, at times, recognized this duty.
2.
The Role of Substantive Values
It is suggested that the Constitution must be interpreted in light
of societal needs and by the substantive values the Constitution represents.
Many have recognized the need to find a method to protect
rights which are affected by changes in society.
recognized the need as follows
Thomas Jefferson
20
s
Some men look at constitutions with sanctimonious reverence and deem them like the ark of the covenant, too
sacred to be touched. They ascribe to the men of the
preceding age a wisdom more than human, and suppose
what they did to be beyond amendment ... Laws and institutions must go hand in hand with the progress of
the human mind ... As new discoveries are made, new
truths disclosed, and manners and opinions change with
the change of circumstances, institutions must advance
also, and keep pace with the times ...
More specifically and in relation to the role of judicial review,
Justice Frankfurter recognized the need as follows:
21
It is of the very nature of a free society to advance in
its standards of what is deemed reasonable and right.
Representing as it does a living principle, due process
is not confined within a permanent catalogue of what may
at a given time be deemed the limits or the essentials
of fundamental rights. To rely on a tidy formula for the
easy determination of what is a fundamental right for
purposes of legal enforcement may satisfy a longing for
certainty but ignores the movements of a free society.
It belittles the scale of the conception of due process.
The real clue to the problem confronting the judiciary
in the application of the Due Process Clause is not to
ask where the line is once and for all to be drawn but
to recognize that it is for the Court to draw it by the
gradual and empiric process of "inclusion and exclusion."
Davidson v . New Orleans, 96 U.S. 97, 10*k
Even more specifically and in relation to recognition of an ECR,
the reasoning has been delineated as follows
22
:
...the failure of the founding fathers to provide in explicit constitutional language for guarantees against environmental spoilage is easily explained. Despite their
anxiety to enact a living constitution adapted to the
needs of succeeding generations, they could no more have
foreseen the given consequences of environmental contamination from their vantage point in an unpopulated simple
agrarian economy than they could have foreseen the development and constitutional implication of electronic eavesdropping devices, telephones or telephone booths.
In conclusion, an interest could hardly be more "fundamental"
than if the entire populace agrees that it is good or desirable.
is doubtful that anyone wants a dirty or deadly environment.
It
Disagree-
ment comes from the degree - not the basic desirability of a clean
environment.
Therefore, the third block in the logical construct is that the
environment is a substantive value which should be subject to constitutional protection.
Arguably, the only reason why the environment
145
is not subject to Constitutional protection is that it is not enough
of a "fundamental right".
what is fundamental.
The crucial problem is how to determine
The following discussion centers on NEPA and the
assistance it provides in determining whether the environment is a
"fundamental right".
3.
NEPA - Congress Implicitly Recognized An Environmental
Constitutional Right
It is suggested that the existence of an environmental right
which is "fundamental" can be extrapolated from NEPA more properly
than when the Court gropes with its own subjective standards of
"fundamental rights".
Naturally, not all Congressional enactments
are capable of arising to Constitutional stature.
Nor is a Congressional
enactment the sole criteria for determining what is Constitutionally
protected.
However, when societal values are in a state of flux due
to a rapidly changing society, it is neither uncommon nor improper for
the Court to consider new interests and the importance other branches
23
of the government place on such interests.
In addition, NEPA's sections 2 and 101 provide evidence of American dedication to environmental values.
Specifically, section 101(b)
(l - 6), by its own words, provides compelling evidence that the
value is long-lasting — not subject to the whims of succeeding generations.
An argument that the power to change the value by suc-
ceeding generations or Congressional bodies is inherent in such an
enactment, and the idea that it should not be elevated to Constitutional stature misses the point.
The concept of "fundamental right"
146
was designed for precisely the opposite reason.
That is, "fundamental
rights" should not be subject to the whims of the majority or succeeding
generations.
Further, the Senate version of NEPA explicitly recognized that
"each person has a fundamental and inalienable right to a healthful
24
environment"
.
The language is analagous to that used by the Supreme
Court when recognizing Constitutional rights, i.e. ..."fundamental and
inalienable".
It seems this is evidence that the Senate was opening
the door for Supreme Court recognition of an environmental constitutional
2S
<
right.
Due to pressure by the House, however, the language was changed,'
Care should, be taken in putting the change of language in proper perspective.
First, it is clear that the Senate conferees accepted the
change as a compromise.
Second, it is not known exactly what doubt
the House conferees had concerning the legal effect of the language.
Third., the Senate obviously was interested in providing, in clear language, that the right to a healthful environment was of constitutional
dimension.
The House may have disagreed, but this does not detract
from the Senate recognition.
Fourth, the Supreme Court has recognized
27
"fundamental rights" when both houses disagreed with the Court.
Therefore, the fact that the Senate has taken the first step is significant .
The final block in the logical construct is that Congress has defined the environment as a fundamental
right implicitly in sections
2 and 101, and explicitly in the Senate version of 101(c).
Once the
question is properly presented to the Supreme Court, it would seem that
the Court must either reject the findings of Congress or recognize
the environment as a "fundamental right".
147
Due to the substantive value
of the environment, it seems the latter approach is the most logically consistent.
In addition, Part III of this paper will argue that an ECR is
the more flexible and realistic method of dealing with the environmental problems and institutional constraints delineated at the first
of this paper.
k.
Summary
From the above discussion, several points should be reemphasized.
First, the Supreme Court has adequate precedent to find that an environmental right is within the penumbras of the due process clause
of the Fifth Amendment or the parameters of the Ninth Amendment, or
that it is a "fundamental right" implicit in the Fourteenth Amendment.
Second, the role of constitutional adjudication, chosen by the Supreme
Court, seems to imply that the Court is obligated to recognize those
rights which are rightfully subject to constitutional protection.
Third, in deciding whether an ECR exists, the Court must look to the
propriety of the substantive value to be protected.
Finally, Congress,
in NEPA's section 10l(b)(l-6), defines the cherished importance and
delineates the propriety of environmental values In such a precise
manner that the environment can not logically be deemed a "non-fundamental interest".
In addition, such a conclusion is supported by
Senate recognition that a "healthful environment is a fundamental and
inalienable right".
148
Part III - NEPA Au the Framework For an Environmental Constitutional
Right
Section 10l(b)(l-6) of NEPA provides flexible but relatively definite standards which could be used as the basis for an ECR,
The re-
sults, in several respects, would be similar to recognition of enforce28
1
able substantive rights in NEPA," "
How far the analogy would extend
depends, .in large part, on how far the Supreme Court will extend substantive review of section 10l(b)(l-6),
However, the following dis-
cussion will center on the issues involved in using NEPA as a guidepost for recognizing and defining an ECR, and the aforementioned environmental problems and institutional constraints that are involved.
A.
Standing
An environmental constitutional right would remove the standing
29
problem encountered in Sierra Club v. Morton
would be required to be shown by the litigant.
.
No injury-in-fact
Instead, the test
would be, "whether the party has alleged such a personal stake in the
outcome of the controversy as to ensure that the dispute sought to be ad
judicated will be presented in an adversary context and in a form historically viewed as capable of judicial r e s o l u t i o n . T h e
relaxed
standing requirement would serve to eliminate the rather asinine procedure of allowing environmental interests to hinge on whether the plain
tiff can identify some relatively trivial connection between the state
action and injury to the plaintiff. 31 The standard in Sierra Club v .
Morton serves little purpose other than erecting an artificial barrier
to full protection of important environmental interests.
149
32
Private
enforcement of governmental action, which harms the environment, is
difficult and expensive enough without the nebulous standing requirement.
Thus, in some instances, an ECR would serve to simplify and re-
duce the cost of litigation.
In addition, it would serve to remove a
needless procedural detail without harming the rights of governmental
defendants or adversely affecting the fair resolution of the controversy.
B.
Standard For Judicial Review
33
In Overton Park' , the Supreme Court held that the proper standard
of review for agency decisions was arbitrary, capricious, an abuse
of discretion
or otherwise
not inPark
accordance
with
In have
putting
meat
on the bones
of the Overton
decision,
manylaw.
courts
fol34
lowed the earlier Calvert Cliffs'
case m
phrasing the issue as
"whether the actual balance of costs and benefits that was struck
was arbitrary or clearly gave insufficient weight to environmental
values".
Courts have been almost unanimous in asserting that they are
not empowered, to substitute their judgment for that of the agency.
However, due to the unique, multi-faced, and difficult nature of accurately determining the ultimate effects of environmental degradation,
the arbitrary and capricious standard places environmental interests
at an undue disadvantage.
Further, agencies often find that their
role in carrying out a particular function is in conflict with full
consideration of environmental factors.
Environmental factors may limit
the ability of the agency to achieve their primary function.
Certain-
ly, this is not conducive to full consideration of environmental fac-
150
tors.
As a fact of life, agencies are biased.
A weasel in a hen house
need not act arbitrary or capricious before the overseer steps in.
35
The courts' "good faith objectivity t e s t " ' is not sufficient to protect against such bias, because it does not become operable until a
discernible bias is identified.
The problem is that environmental
values are often unquantifiable, and thus they leave room for abuses
of subjective judgmental factors which may not be readily identifiable
as arbitrary or lacking in good faith objectivity.
The courts have no
stake in the outcome, and therefore, they can be more objective.
Anti-
quated doctrines of judicial review and deference to agency judgment
should not be applied when the result
requires blind acceptance of
a standard which is illogical on its face.
An ECR would allow a court
to objectively consider the evidence in respect to the factors delineated
in section 10l(b)(l-6).
The court would still not be substituting
its judgment for that of the agency.
Instead, when conflicting data
or scientific opinion were presented., the court would determine whether
the agency decision is supported by the weight of the evidence.
A pre-
ponderance of the evidence standard would allow courts to more effectively
deal with agency bias.
Further, it would ensure that environmental fac-
tors were considered seriously and in accord with section 10l(b)(l-6).
Thus, the test a court could use in determining whether an ECR was violated would be to start with section 10l(b)(l) and ask whether the agency's responsibility as "trustee of the environment for succeeding
generations" was or will be fulfilled as shown by the weight of the
evidence. five.
Similarly, the court would analyze subsections two through
If the agency action failed on any of the six functions, then
an ECR would be violated.
151
G.
Burden of Going Forward with the Evidence
In Calvert Cliff's, the Court stated:
Accordingly, once a prima facie showing has been
made that the.federal agency has failed to adhere
to the requirements of NEPA, the burden must, as
a general rule, be laid upon this same agency which
has the labor and public resources to make the proper environmental assessment and support it by a preponderance of the evidence contained in the impact
statement.
However, other courts have placed the burden of proof on the
37
plaintiffs.
proach.
An ECR would not mandate the Calvert Cliffs ap-
However, such an approach would be compatible with stan-
dards developed in other areas of Constitutional law.
For example,
the courts use of "strict scrutiny" often has the effect of shiftOQ
ing the burden of going forward with the evidence to the state.'
It seems a corollary to "strict scrutiny" and the res ipsa loquitor
doctrine could be applied.
That is, once the plaintiffs show that
relevant and material information is held by the agency, or that the
state is in the best position to obtain the information, and the
plaintiff has no practical way of obtaining the information without
heavy expenses, the burden of proof should shift to the agency.
Such a doctrine is particularly relevant when the public good will
be served.
Otherwise, public access to challenging agency decisions
will be greatly limited and section 10l(b)(l-6) may never achieve
full vitality.
The Calvert Cliffs approach seems to be the most
realistic appraisal of the practicalities.
volved in environmental litigation.
Heavy expenses are in-
The deep pocket theory, as ap-
plied to the cost of procurring information, is particularly approp-
152
riate since the Supreme Court has annihilated the "private attorney
general concept".
^•
The Record for Constitutional Review
Section 102(2)(c) requires the EIS to discuss certain relevant
environmental data.
ning device.
Basically, 102(2)(c) is an environmental plan-
Among other things, alternative and unavoidable adverse
Impacts to the environment must be discussed.
The same requirements
in 102(2)(c) should be imposed on the agency when the court is reviewing the record for an ECR violation.
Otherwise, the court's task
of reviewing agency decisions to determine if they are in accord
with the substantive policies of an ECR would be greatly hampered.
Environmental data and scientific opinions are often complex, extensive and subject to varying interpretations — such data should
be submitted to the court in a manageable, consistent and uniform
manner.
Agency opinions and justifications should be detailed as
much as is realistically possible.
NEPA already requires this for
federal agencies engaging in major federal action.
The issue is
whether such a requirement should be imposed on the States when they
engage in major action significantly affecting the environment.
Much of the same reasoning which encouraged Congress to require
I02(2)(c) planning for federal agencies is equally applicable to
state agencies.^'"
First, 102(2)(c) provides a format for substantial
and consistent consideration of environmental factors in decisionmaking.
Second, 102(2)(c) necessitates consideration of environmental
factors which conflict with other objectives.
Finally, 102(2)(c)
provides the framework for developing procedures which will help to
ensure that section 101 policies are implemented.
Some might argue that the above approach conflicts with certain
basic principles of federalism, and that it is too great of an expansion of the scope of judicial review.
However, requiring states
to take affirmative action to protect constitutional rights has been
ko
firmly established.
Federal courts have imposed affirmative action
in the areas of busing and voting without Congressional support or
guidance.
Also, since environmental problems are national in scope,
a unified approach which imposes certain minimum requirements is
consistent with the theoretical foundations of our system of government.
A pertinent example is federal dominance over regulation of interstate
commerce.
Admitedly, the federal government's power to regulate inter-
state commerce is specifically delineated in the Constitution.
How-
ever, three key points seem to compel the conclusion that the environment is subject to similar Constitutional regulation.
mental problems transcend state boundaries.
First, environ-
The difficulties of one
state trying to protect against the transitory effects of pollution
and other adverse environmental effects resulting from another state
kl
has been demonstrated in several cases.
Where Congress has failed
to provide adequate regulation or relief, vigorous judicial enforcement of section 102(2)(c) in relation to the substantive policies of
section 101 would provide needed minimum standards.
Second, the lack
of reference to environmental protection in the Constitution is articulately explained in plaintiff's brief for Pinkney v . Ohio EPA
154
(aee page //<)). The Constitution should remain flexible and adaptable
to the changing needs of society.
Where a right and potential remedy
exist, there seems to be little reason for not protecting those interests which are threatened because of changes in the technological
nature of society.
Finally, adapting the Constitution to the needs
of society is reflected through judicial precedent.
Contrast the
differing interpretations, by the Supreme Court, of the interstate
^2
commerce clause, ~
It might be argued that the varying interpreta-
tions are more a result of different judicial philosophies than of
adapting the Constitution to the needs of society.
However, the needs
of society, as reflected by the pressures applied to the Court by
President Roosevelt during the 1930*s f seem to Imply more than a
simple difference in judicial philosophy.
Regardless, the fact remain
that the meaning of the Constitution is fluid, and, more importantly,
the concepts of federalism and judicial review provide no precedents
which would prevent the Court from requiring the states to follow
lo2(2)(c).
Part IV - Summary and Conclusions
It is asserted that the U.S. Supreme Court should recognize an
ECR.
Such would not be overstepping the normal boundaries of judicial
review.
More than ample precedents exist to support a finding that
an ECR is a 'fundamental right".
Further, the Court can justifiably
rely on specific policy proclamations in sections 2 and 101 of NEPA
to support the conclusion that "fundamental rights" do exist.
Through following the general framework of NEPA, the Court could
eliminate many of the problems normally associated with a new Constitutional doctrine.
Defining the scope and depth of an ECR would still
be difficult, but, at least, a general outline does exist.
Also, an ECR would allow the Court more flexibility in eliminating
bias from agency and legislative decisions.
"Special interest" bias
is a fact of life that the Court must consider.
Of all institutions
in our government, the Court is the least susceptible to bias and is,
therefore, the institution most capable of controlling said bias.
The Court can remain true to its role of guardian of the Constitution only if it is willing to accept the grave responsibilities such a
role demands.
Footnotes and Comments
4 2 U . S . C . I 4332
Three basic theories have been arguedt
a . The Ninth Amendment see Pettigrew, A Constitutional Right of
of Freedom from Ecocide, 2 Env. L . 1 (l97l)
'
b . Due Process see R . Klipsch, Aspects Of A Constitutional Right
To A Habitable Encironment; Towards An Environmental Due
Process, Ind. LJ 49: 203-37 Winter '74
c . Public Trust Doctrine see J . Sax, Defending The Environment
For Citizen Action.
F . Skillern, Environmental Law Materials, pg. 1
B . Commoner, The Closing Circle, Ch. 2 , excerpt from Environmental
Law Materials, supra note 3
One could argue enforcement of legislative acts is control by
the legal process. However, the purpose of the discussion is to
delineate controls by the source from which they originate.
This is demonstrated by the Clean Air Act. Congress enacted a
relatively detailed system for planning, and, standards for air
quality. Yet, the EPA, by necessity, was delegated a great
deal of discretion in working with the States to achieve the standards set forth by Congress.
The problem is not the power of Congress to force state compliance;
instead, it is the deference, inherent in the concept of federalism,
which Congress allows the States in developing programs consistent
with national objectives.
For excellent discussions of this problem and how "special interest
elites" achieve their objectives, see the following: G . Domhoff,
Who Rules America?, Prentice-Hall Inc. (1967) and R . Quinney,
Critique of Legal Older, Little, Brown and Co. ("1974).
Boyd v . United States, 116 U.S. 6l6 (1886) - protected against
government intrusion, "the sanctity of a man's home and the privacies of his life".
Pierce v . Society of Sisters, 268 U.S. 510
Meyer v. Nebraska, 262 U.S. 290
1 2
13
14
MAACP v. Alabama, 357 U.S. 449
It is assumed that few, if any, justices of the Supreme Court
would agree with Justice Black. The concept of "selective incorporation" of certain rights which are deemed "fundamental" is
inconsistent with Justice Black's theory. The Supreme Court has
shown no indication-of withdrawing from protecting certain fundamental rights from state discretion.
Justice Harlan's theory of substantive due process is explained in
detail in his dissenting opinion in Poe v . Ullman» 3^7 U.S. 497»
at 539-545.
W . Kirchich, The Continuing Search For A Constitutionally Protected
Environment „ E n v i r . Affairs 4: 515-58 Summer 1975.
R . Klipsch, supra n . 1 .
Kleppe v . Sierra Club, 96 S . Ct, 2718 (1976).
Aberdeen and Rockfish R. Co. v . SCRAP, 95 S . Ct, 2336 (1975).
17
S e e , R . Patt, Toward Constitutional Recognition of the Environment,
56 A.B.A.J. 1061 at IO63 where the original Senate version of 101(c)
Is mentioned. Also, see W . Kirchich infra N. 25. Both authors discuss
the Senate version of 101(c), but apparently assume that the Senate
version is directed at creating a "private right" similar to the
"private attorney general concept". If this was all the Senate
version was designed to accomplish, there was no need to use the
language "fundamental and inalienable". Instead, it is suggested
that the language clearly implies a Senate recognition of a
Constitutional right. Such is strengthened by Senator Gaylord
Nelson's proposed Constitutional Amendment (S.J. Res 169, 91st
Cong., 2nd Sess) - which was proposed after the Senate language was
changed. Senator Nelson was one of the main proponents of the
Senate version of section 101(c) of NEPA. It is suggested that
proponents of Supreme Court recognition of an ECR are overlooking
a very substantial argument. Justice Harlan (Poe v . Ullman. supra
N . 14) delineated the requisite requirements for finding a
"fundamental right". A Senate recognition of such a right provides substantial evidence of its existence.
1 8
Marbury v . Madison, 2 L . E d . 60 (1803).
1 9
United States v . Nixon. 94 S . Ct. 3090 (1974).
20
21
G . Seldes, The Great Quotations, Pocket Books, New York, N.Y. (1969).
Davidson v . New Orleans, 96 U.S. 97, at 104, as cited in W , Kirchich
supra n . 16.
158
22
2j>
oh
Plaintiffs-Appellants' Opening Brief, Pinkney v . Ohio EPA Case No.
74-13^3. at 3» as cited in W . Kirchich, supra n . 1 6 .
Katzenbach v . Morgan, 384 U.S. 651 (1966).
91st Cong. 1st Sess.
Senate Report # 91-296 Calendar #287,
At least one author has recognized this point in relation to the
"private attorney general concept". See W . Kirchich supra N . 16.
1969 U.S. Code Cong, and A d m . News. p . 2751 at p . 2?68.
"The compromise language was adopted because of doubt on the part of the
House conferees with respect to the legal scope of the original
Senate provision."
271
28
2 9
30
31
32
For example, Congress has strongly opposed the Court's use of
busing to achieve racial desegregation; or, Congressional attempts
to usurp Miranda in the Omnibus Crime Act of 1969.
For an excellent discussion of substantive review under NEPA, see,
J . Karp, Substantive Rights Under the National Environmental Policy
A c t , A m . Bus. L.J. 13: 289-314 Winter '76.
Sierra Club v . Morton. 405 U.S. 728 (1972).
Sierra Club v . Morton, supra,
S e e , Sierra Club v . Morton, supra, Justices' Blackmun and Douglas
dissents. Also see, the relatively trivial standing requirements
alleged in U.S. v . SCRAP. 4ll U.S. 669 (1973).
Specifically, see Sierra Club v,Morton, supra, Justice Douglas*
dissent.
Citizens to Preserve Overton Park v . Volpe, 401 U.S. 402 (1971).
3/4
Calvert Cliffs Coordinating Comm.. Inc. v . AEC. 449 F . 2d 1109 (1971).
35
q/T
For "good faith objectivity test" see, EDI'1 v . Corps of Eng'rs,
4070 F . 2d 289 (1972).
S e e , T . Hadzi-Antich, Environmental Law: Judicial Review of
Federal Agency Actions Under NEPA, Okla. T . R . 2 8 7 8 6 4 - 8 8 5 at
881 where a similar test is proposed for substantive review.
159
'7 FDF v. Corpa of Eng'rs, 492 F . 2d 1123 (1974).
no
Roe v . Wade, 410 U.S. 134 (1973).
10
" 9 1 s t Cong. 1st Sess. Senate Report #91-296 Calendar #287.
40
S e e , the long line of busing cases beginning with Swann v . Bd..
402 U.S. 1 (1972) and, the voting cases beginning with Reynolds
V . S i m s , 377 U . S . 5 3 3 (1964).
/fl
U.S. v . Bishop Processing Co.. 423 F . 2d 469 (1970).
42
For example, pre~Lockner E r a , Lockner, and Post Lockner Era
decisions.
1*38