Legal Terrain

Is the Massachusetts Constitution a Tool for Climate Change?

September 7, 2023


After Held v. Montana was decided, and I read Peter Vetere’s blog post, I’ve been thinking about the Massachusetts Constitution. Would Massachusetts’ youth have similar success arguing for a guaranteed safe, clean environment? With students back in school, are ambitious social studies teachers helping children explore constitutional claims to combat climate change? Alas, my reading of the world’s oldest functioning, written constitution suggests such meddling kids would not be successful.

Perhaps not surprising given the historical context, Massachusetts’ Constitution focuses on personal rights and granting powers to the government that ensure the protection of those rights. It lists the enjoyment of life, liberty, and property and seeking and obtaining safety and happiness as “unalienable” rights. Article 97, adopted in 1972, granted the right (not the “unalienable” right) to a clean environment and authorized the legislature to acquire land and easements to protect this right:

The people shall have the right to clean air and water, freedom from excessive and unnecessary noise, and the natural, scenic, historic, and esthetic qualities of their environment; and the protection of the people in their right to the conservation, development and utilization of the agricultural, mineral, forest, water, air and other natural resources is hereby declared to be a public purpose. (Article 97, first paragraph)

Article 97 was also intended to protect conservation land from conversion: two-thirds of each branch of the legislature must approve the use of protected land “for other purposes.” Another article in the Constitution allows taxation methods that “develop and conserve the forest resources, wildlife, and other natural resources” when “wild or forest lands [are] retained in a natural state for the preservation of wildlife and other natural resources.” (Article CX.) Other than Articles 97 and 110, the Constitution makes no promises with regard to the environment.

Also in 1972, Montana’s constitution was rewritten, but with much stronger environmental protections. A clean and healthful environment is an inalienable right (Article II, Part II, Section 3). “The state and each person shall maintain and improve” such an environment for present and future generations. (Article IX, Part IX, Section 1.) The legislature shall provide adequate remedies to prevent unreasonable depletion and degradation of natural resources. (Id.) These affirmative obligations in the Constitution of Montana led Judge Kathy Seeley to rule in the children’s favor in Held.

Another difference between Montana and Massachusetts is the polar opposite direction of each state’s laws. Montana prohibited state agencies from evaluating greenhouse gas emissions and climate impacts – either within the state or beyond. The Bay State’s 2008 Global Warming Solutions Act expressly required state agencies to consider “reasonably foreseeable climate change impacts, including additional greenhouse gas emissions.” In 2021’s Climate Roadmap Act, the Legislature mandated that developers needing state permits evaluate the effects of climate change on environmental justice (EJ) populations.

These differences between Massachusetts and Montana suggest no grounds for a lawsuit based on the constitutional rights of future generations of Bay Staters to a clean environment. Indeed, in 2000, the Massachusetts Supreme Judicial Court rejected plaintiffs’ claim that their right under Article 97 to clean air and clean water gave them standing to challenge a Massachusetts Environmental Policy Act decision allowing a proposed sewage treatment plant, even though the challengers owned property in the permittee’s town. (See Enos v. Secretary of Environmental Affairs, 432 Mass. 132, 142, n.7 (2000)). In 2019, the U.S. District Court in Massachusetts, after surveying Massachusetts’ law, declined to read a private right to sue for clean water into Article 97, noting that “the SJC has never held that there is a right of action to enforce the Massachusetts Declaration of Rights.” (See Hootstein v. Amherst-Pelham Reg’l Sch. Comm., 361 F. Supp. 3d 94, 115 (D. Mass. 2019).)

Constitutional challenges are perhaps more likely to come from plaintiffs frustrated with aggressive climate policy. Heating fuel suppliers, whom the Clean Heat Standard would force to demonstrate decreasing sales, may perceive violations of their constitutional property rights. Project proponents facing extra scrutiny and compliance hurdles in race-based EJ communities may plead constitutional (Massachusetts or Federal) violations now that race-based college admissions violate constitutional equal protection principles. When it comes to fundamental rights, there is no shortage of ideas about what direction our laws should take.

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