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Federalism Swings Both Ways: A Strategy to Claim our Right to a Clean Environment

Federalism Swings Both Ways: A Strategy to Claim our Right to a Clean Environment

Julia Muench Rumburg

As citizens of the United States of America, our Constitution guarantees us certain rights. The Fifth and Fourteenth Amendments provide that no government, Federal or State, shall deprive any person of life without due process of law.[1] The requirements of life are straightforward: humans require water, air, food, sleep, and shelter. If we are denied access to these requirements for a period of time, we die; if we are denied access to reliable, clean sources of these requirements for an extended period of time, we become sick and ultimately die.

Each of these requirements are inextricably linked to the natural world. We require clean water for drinking and irrigation, which means we must protect our freshwater bodies and watersheds. We require clean air, which means we must maintain the integrity of our atmosphere. We require healthy food, which means we must sustainably manage our soils. We require sleep and shelter, which means we must arrange our living spaces and industries so that we can afford housing free of excessive light and noise.

Unfortunately, our legal system does not yet recognize that these necessities for life ought to be protected by our constitutional right to life.[2] However, past civil rights movements have overcome this hurdle. For example, the right-to-marry movement that culminated in the Obergefell v. Hodges decision took the issue to the states, slowly persuading state courts and legislatures until the momentum finally convinced the Supreme Court to acknowledge the right to marry whomever one chooses.[3] This Note argues that strategy can and should be adopted by the right-to-a-clean-environment movement in order to create the momentum and cultural shift necessary to persuade the Supreme Court to recognize this right as mandated by the Constitution’s due process right to life.

This Note begins with a discussion of the 2014 Elk River spill in West Virginia.[4] That catastrophe demonstrates how the modern environmental law regime fails to adequately protect the people of the United States. The following section will identify and analyze state jurisdictions that already have a right to clean environment to demonstrate the consequences of having such a right. This Note will then discuss the Obergefell decision and the strategy employed by the right-to-marry movement. In the next section, this Note applies the right-to-marry movement’s strategy to the currently unrecognized right to a clean environment. To do so, this Note will categorize the due process clause of each state’s constitution according to how it is applied by the state’s judicial system. Finally, this Note will compare the different categories and identify the states that would be most likely to recognize a right to clean environment. Once states have enshrined the right’s place in our Nation’s tradition,[5] the Supreme Court will have the impetus to recognize that a clean environment is a necessary condition of our right to life.

Questions and inquiries regarding this Note may be forwarded to the author at

[1] U.S. Const. amend. V, XIV.

[2] See Janelle P. Eurick, The Constitutional Right to a Healthy Environment: Enforcing Environmental Protection through State and Federal Constitutions, 11 Int’l Legal Persp. 185, 207 (Spring 2001) (citing Virginia v. Rives, 100 U.S. 313 (1879)).

[3] Obergefell v. Hodges, 135 S.Ct. 2584, 2604 (2015).

[4] See Peter Markham et al., After Action Review: Emergency Response to January 9, 2014 Freedom Industries Chemical Leak, at 2 (Jan. 9, 2015) [hereinafter Markham] After%20Action%20Review%20Final.pdf?utm_source=1-9-14+AAR+review&utm_campaign=1-9-15+AAR+ review&utm _medium=email (Governor-ordered survey on adequacy of government response to Elk River spill).

[5] See Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (describing federal requirements for recognizing fundamental rights).

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