A "constant and difficult task": Making local land use decisions in states with a constitutional right to a healthful environment

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Abstract

This Article examines the role local governments play in four states that have constitutional rights to a healthful environment-Illinois, Pennsylvania, Montana, and Hawaii. Scholars such as John R. Nolon and Patricia E. Salkin have long noted that local governments work as quiet yet integral third partners with state and federal government by addressing environmental issues through land use regulation. For local governments in environmental rights states, environmental protection is not just an aspiration, but a constitutional mandate. Indeed, environmental rights cannot be fully protected without the strong engagement of local government. This Article describes the constitutional provisions of Illinois, Pennsylvania, Montana, and Hawaii, and summarizes how the environmental rights case law intersects with the land use law in each state. Here, the Article updates much earlier comparative scholarship on environmental rights, using a land use lens. It also builds on the observations of Barton "Buzz" Thompson and other environment rights scholars who have noted a gap between the constitutional right to a healthful environment and its regulatory implementation. It is local government that can fill much of this gap. Next, this Article combines the theoretical with the practical by presenting a checklist of topics that local governments can consider in designing regulations that protect environmental rights. Even in states lacking a constitutional right provision, local governments can benefit from the practical suggestions offered here. By stepping up to meet their constitutional obligation, local governments in environmental rights states are poised to become leaders in creating and implementing robust environmental land use provisions.

Original languageEnglish
Pages (from-to)1-62
Number of pages62
JournalEcology Law Quarterly
Volume38
Issue number1
StatePublished - 2011

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