'Demystifying Environmental Constitutionalism' by Sam Bookman in (2024) 54 Environmental Law 1 comments
For many, statutes and regulations are not enough: states must entrench environmental concerns as supreme constitutional norms, binding the site of contestation in constitutional design, amendment, and interpretation. Explicit environmental rights—often phrased as the right to live in a “healthy” environment—are widespread. In addition to rights, courts and governments face a range of constitutional environmental questions, including those related to federalism, separation of powers, and representation.
The desire for action drives the constitutionalization of the environment. If the environment is a matter of supreme importance, should the supreme law not reflect as much? But beyond this general commitment to the importance of the environment—and the entrenchment of at least some environmental decisions beyond the reach of ordinary majorities—the mere act of constitutionalization tells us little about how states should govern, protect, and imagine the environment. Like other forms of “constitutionalism,” “environmental constitutionalism” is a conceptual frame capable of many different meanings, institutional forms, and justifications. This Article draws out three different paradigms: liberal-conservative, technocratic, and transformational. These differences matter. “constitutionalism” carry normative weight. Different versions compete with one another, vying to emerge as the dominant paradigm. What framers and judges understand when they are “doing” environmental constitutionalism influences how governments draft, and courts interpret, constitutional provisions. As long as the concept remains vague, environmental constitutionalism is potentially dangerous, calling for urgent and high-level action on environmental issues without revealing what sort of action is required. Before answering its call, we should demystify its meaning.
Environmental constitutionalism remains potentially dangerous for another reason as well. Environmental constitutionalism almost universally involves a turn to rights and courts as the vanguard of environmental protection, despite taking many forms. Such a turn comes at the expense of democratic participation. Yet it is precisely this high energy democracy that is necessary to truly transform the institutions which have brought us to the point of environmental crisis. Demystifying the plural meanings of environmental constitutionalism reveals what is missing—a program of constitutional environmental democracy. This Article thus reveals the stakes of competing claims to “environmental constitutionalism,” while simultaneously exposing environmental constitutionalism’s limits as a transformative program of legal and environmental change. In the Anthropocene, constitutions matter: but they matter beyond the world of rights and courts.
In Part II, I analyze the extraordinary global spread of constitutional environmental law and set out a framework for understanding its possible meanings. In Part III, I demystify environmental constitutionalism. Environmental constitutionalism is not a singular movement or program, but instead appears in at least three different strands, each with significant consequences for constitutional theory, design, and interpretation. Each strand answers the same fundamental question: Why environmental constitutionalism?
A first strand, the liberal-conservative strand, provides the following answer: because environmental matters fall within existing conceptions and traditions of mainstream constitutional theory. In other words, environmental constitutionalism can be accommodated within the existing conceptual toolbox. Because liberal ideas have historically dominated constitutional theory (especially in the Global North), this strand stresses the coherence of environmental rights with existing bases for constitutional rights generally, as well as existing theoretical frameworks, such as political process theory. These devices have been perhaps surprisingly productive in generating a broad range of normative constitutional arguments, many of which national courts have adopted.
The second paradigm is technocratic, providing the following answer: because environmental governance requires a high degree of expertise, which is beyond the capacity of electoral majorities. The technocratic strand values constitutions—as generally supreme and entrenched bodies of law—as tools that transcend ordinary politics, and instead locate decision-making power in expert institutions. Drawing on a discourse of “administrative rationalism,” the strand constructs the environment as a stock of resources that can be managed without reference to political value judgments. The logic of the technocratic strand is visible in court decisions which justify judicial intervention on the basis of the court’s own relative institutional capacity or where courts act to strengthen the institutional capacity of the bureaucracy.
A third paradigm claims to be transformative. In response to the question, “Why environmental constitutionalism?” the transformative paradigm provides the answer: because environmental crises require fundamental changes in interrelated social, political, and economic systems, and constitutions can embody the necessary legal and aspirational framework for such transformation. The philosophical sources of transformative environmental constitutionalism are eclectic, going beyond liberal political theory and drawing on environmental ethics, political economy, ecological sciences, and Indigenous knowledge systems.
In Part IV, I argue that these different paradigms matter. First, they reveal that environmental constitutionalism—much like constitutionalism more generally—can operate as a conceptual framework for many different projects and discourses. Different conceptions of environmental constitutionalism are sometimes mutually reinforcing, connected together in particular proposals for constitutional design or interpretation. Drafters and judges cobble together available conceptual tools, even if those tools originate in different paradigms. This bricolage of different ideas need not weaken proposals for constitutional environmental governance; indeed, it may sometimes strengthen them.
But at times, the three strands conflict with one other or produce different consequences in design and interpretation. As the concept of “environmental constitutionalism” gains normative, conduct-guiding salience, paying attention to these differences will be crucial. Drafters, judges, and scholars should be alert to the different options and conclusions provided within each discourse and consider the extent to which they may be appropriately applied in different circumstances.
The demystification of existing environmental constitutionalism also opens the way for reconstruction of the concept, revealing that existing notions of environmental constitutionalism retain a fundamental distrust in popular decision-making. In this sense, all three strands remain locked into many of the assumptions of existing constitutional practice, including a preoccupation with rights and courts. In Part V, I sketch out the possibility of a new mode of environmental constitutionalism: constitutional environmental democracy. This conception shifts attention away from courts and instead emphasizes the role of participatory institutions such as legislatures and citizens’ assemblies. Constitutional environmental democracy thus draws on a longstanding tradition of popular and political constitutionalism. I offer this sketch as something of an ideal theory, intended for societies where scope conditions allow for meaningful deliberation and rough conditions of equality. Such a society may simply not exist. Nevertheless, there is value in imagining the possibilities for constitutional law. While a more democratic form of environmental constitutional governance may not yet be operationalizable, its imagining may open up new ways of thinking and opportunities for experimentation. This Article starts to embark on such a project, though a fully worked through program demands an extensive future research agenda. The urgency of the moment requires nothing less.
