Robinson Township, Washington County v. Commonwealth

83 A.3d 901 (Pa. 2013)

“The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.” Penn. Const. Art. I, § 27.

Unconstitutionality of government action related to positive rights

Can be framed as:

• a violation of a duty

• an infringement of rights

Penn. Env. Def. Found. v. Commonwealth

161 A.3d 911 (Pa. 2017)

“The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.” Penn. Const. Art. I, § 27.

Jeffersonian “dead hand” idea

No generation has the right to bind another. All constitutions, laws, and debts should die with the generation that created them (roughly every 19 years).

Held v. State

560 P.3d 1235 (Mont. 2024)

“(1) The state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations. (2) The legislature shall provide for the administration and enforcement of this duty. (3) The legislature shall provide adequate remedies for the protection of the environmental life support system from degradation and provide adequate remedies to prevent unreasonable depletion and degradation of natural resources.” Art. IX, § 1, Mont. Const.

Montana Environmental Policy Act states that, except for narrowly defined exceptions, “an environmental review conducted pursuant to this Act may not include an evaluation of greenhouse gas emissions and corresponding impacts to the climate in the state or beyond the state’s borders.”

Two questions

Does the Montana Constitution include a right to a stable climate system?

If so, is the Montana Environmental Policy Act unconstitutional?

Should a violation of a right alone confer standing?

Should it depend on the nature of the right?

In Re Hawai’i Electric Light Co.

526 P.3d 329 (Haw. 2023)

“Each person has the right to a clean and healthful environment, as defined by laws relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources.” Haw. Const. Art. XI, § 9.

Potential bases for decision:

Right to clean and healthful environment

Substantive due process

Public trust doctrine

Protect the Adirondacks! Inc. v. New York State Department of Environmental Conservation

170 N.E.3d 424 (N.Y. 2021)

“The lands of the state, now owned or hereafter acquired, constituting the forest preserve as now fixed by law, shall be forever kept as wild forest lands. They shall not be leased, sold or exchanged, or be taken by any corporation, public or private, nor shall the timber thereon be sold, removed or destroyed.” NY Const. Art. XIV § 1.

Adobe Whitewater Club of New Mexico v. New Mexico State Game Commission

519 P.3d 46 (N.M. 2022)

“[T]he unappropriated water of every natural stream, perennial or torrential, within the state of New Mexico, is hereby declared to belong to the public.” NM Const. Art. XCI, § 2.

Administrative Law

Two topics:

Nondelegation

Judicial deference

A.L.A. Schechter Poultry Corp. v. United States

295 U.S. 495 (1935)

Gundy v. United States

588 U.S. 128 (2019)

But see Federal Communications Commission v. Consumers’ Research 606 U.S. _ (2025).

Mcneill v. State

375 P.3d 1022 (Nev. 2016)

In Re Certified Questions From U.S. District Court

958 N.W.2d 1 (Mich. 2020)