Rebecca Bratspies
Volume 77, Issue 4, 771-820
How come I can’t breathe at home and y’all get to breathe at home?
The idea that some people may freely poison others is one of the most astonishing but least contested aspects of modern life.
Setting environmental standards involves judgment calls about what level of protection is “adequate,” what technical measures are “feasible” and even what level of pollution is consistent with “clean air, clean water and a healthful environment.” On his first day in office, Trump drove a truck through those judgment calls by repealing all the executive orders related to racial justice, environmental justice, and climate change that had been guiding agency exercises of discretion. Since then, his Administration has done its best to gut environmental protections—repealing long-standing regulations and abandoning customary decision practices. Overall, the Trump Administration has created a regulatory void, leaving environmental judgment calls standardless.
That makes state-level law and regulation critically important, particularly the emerging trend toward state-level constitutionally recognized environmental rights. Yet despite the sweeping constitutional language adopted in multiple states, constitutional environmental rights are surprisingly undertheorized. There is little consensus about their contours and content. There is not even agreement about who holds constitutional environmental rights, who bears the duties these rights create, and by what process those determinations might be made. In this moment when federal environmental standards are being obliterated, vulnerable communities and individuals are pressing states to resolve these questions.
This Article suggests that properly theorized environmental rights can begin to fill the void created by federal abdication. It offers a vision of the different kind of environmental decision-making that could (and should) flow from constitutional environmental rights. Focusing on the right to breathe clean air, the Article identifies how the right to breathe transforms every stage of environmental decision-making—how, where, and when public participation is sought, who has access to relevant information, how impacts and risks are defined, how risk assessments are conducted, what level of protection is requisite, and who has access to a judicial remedy to allege that their rights have been violated. It also provides a yardstick by which to assess whether the state is fulfilling these obligations.
Using New York as a model this article demonstrates how managing environmental decision-making through the lens of environmental rights could deliver better air quality to more people while simultaneously promoting environmental justice.