Our Right to Clean Air: Our other rights are obsolete if we can’t breathe

One of the principle ideas laid out in our constitution stated the inalienable rights of life, liberty and the pursuit of happiness. One may well argue that both the pursuit of happiness and life are greatly affected by the quality of the environment. The Montana State Supreme Court passed a law stating that individuals had a “right to clean air and clean water, just as they have rights to free speech and freedom of religion”. An obvious argument for me would involve the pursuit of happiness. I find joy in the environment, and nature’s beauty and health are both a large part of my enjoyment. I also believe that my life (specifically my physical health) is affected by the cleanliness of the environment. In this way, it could be argued that one has a right to a clean environment.
In “Having Their Yea in Court”, several points are brought up about the rulings of courts regarding rights and the laws affecting them. In giving a reason for the ruling, one of the arguments stated that the law “protects the state's resources from potential harm as well as from actual, proven damage”. This justification seems very much like an issue of prior restraint (except of course that this law does not pertain to printed material) Near v. Minnesota caused a ruling saying that Newspapers were not subject to prior restraint, but could only be penalized after certain material was published. The question to ask is, whether or not a law can be passed about the environment that protects potential harm that has not necessarily been proven. With prior restraint, the courts seemed to think that publications could not be penalized until they were actually published. Similarly, is it justifiable to punish persons who could potentially harm the environment before they have actually carried out an act?
Another argument pertained to, “how a court might measure a clean environment or establish some sort of enforceable standard for a healthful environment. Most concluded that while the constitution articulated a wonderful concept, it held no real meaning beyond what the legislature chose to give it by enacting environmental laws”. This brings up the issue of the actual enforcement of laws. Within a concept such as clean environment, courts of other bodies must develop a measurement system that can be used to test whether the law is being followed or not. This also can cause debate in the way that individuals are held responsible. Similar to prayer in schools: “many school districts have simply ignored the Supreme Court’s ban on school prayer and continue to allow prayers in their classrooms” (Edwards), if the ruling in the courts is poorly enforced, or ignored all together, the ruling of the court is meaningless. In this way, it seems that it would be prudent for courts and other law makers to actually address the concerns of those who will be carrying out the laws. In doing so, they could avoid creating laws that the bureaucracy feels no need to enforce. This may require less than idealistic thinking and would not allow for a law to simply improve environment, but rather laws would be specific and measurable actions that can be reasonably carried out.
Along the same lines of creating new laws, one point regarding the new right to a clean environment was, “legislative and executive branches of state government must carefully respect this right as they go about the business of fashioning and implementing new laws and policies”. Again, if a citizen is given a right that they are entitled to, those deciding that that right exists must consider if having such a right could conflict with current laws. When the Bill of rights was first established, it was decided in Barron v. Baltimore that this section of the Constitution would only apply to the national government. In a later ruling of Gitlow v. New York this was changed when the “freedoms of press and speech [were ruled] fundamental personal rights and the liberties protected by the due process clause of the Fourteenth Amendment” The incorporation doctrine must be considered any time that a right is given and a new law put into place. It must be decided who will be under the law, what the penalties are and, if the new law conflicts with older local or national law, which of the two will take precedent.
Specifically in Montana, several laws had been created that exempted mining companies from regulating their output of toxins into rivers. “In the wake of the court ruling, these laws -- passed by an overly zealous, pro-mining legislature -- will undoubtedly be held unconstitutional”. This is another example of an overlap of new and old laws. The older mining exemptions that were considered acceptable are now being taken away by newer constitutional laws. The actual ruling about an individual’s right to a clean environment was given as a result of a trial disputing the mining companies waste output. Any laws that have been passed and are considered outdated must come before court in order to change. In this regard it seems that it would not only be prudent to discuss new laws with those who will be enforcing them, but also to consider the legitimate extensiveness of time that a law will be in place. It was mentioned that the new law will create a need for any legislation that could have an effect upon the environment to be very specific and narrowly scoped in order to prevent a broad law that would promote large scale violation of the right to a clean environment. For example, instead of being able to pass a law about new zoning that allows power plants to be built near streams, a new law would be required to specify exact distances from the waterway, the exact amount of potential and actual damage caused, as well as many other minute details that allow for a tighter restriction.
Not only do laws overlap each other, but rights also can cause conflict. One argument was, “business interests, legislators, and government regulators have voiced serious concern with the court's decision. They wonder whether if it will drag down Montana's economy or lead to unprecedented judicial intervention in the state's affairs” The legitimate concern about the economy is one that many individuals have, and many also (especially conservatives) are concerned about the extent of the government’s intervention into their market. As Americans, even when our rights are being increased, we rarely like to have previous rights infringed upon. Because the economy is something that the majority of America believes in stabilizing, many Americans will support laws that aid it. The environment on the other hand is something that fewer people support, making laws passed about it often secondary to current laws. Again, the law is only as good as those who enforce it, and those enforcing it are less likely to do so if they meet considerable resistance in attempting to carryout the law.
One final point that was brought up applies to all states today, and is an interesting point made about law making: “because states are the great incubators of ideas in this country, I foresee a day when other states and perhaps even the national government will adopt a right to a clean and healthful environment”. This brings up the important issue of states as testing grounds for new law, and legislators creating laws that they know to be somewhat ridiculous simply to see the response. Similar to a trial balloon, politicians may create laws within states that can be tested there without affecting the nation as a whole. If the law is successful, then it can be considered for national implementation, but if it fails, law makers are glad they did not spread it. Colorado has had several of these correctional policies tested in our prisons and they have proved affective. This Montana state law however, has proven to be less so. Not necessarily because of the ideals behind it but because of the style of implementation.
Each new law and or right given to citizens must take into consideration who and to what extent it is protecting, the court’s power to establish and enforce, the impact upon other branches having to acknowledge the new policy, overlapping of old and new law, the legitimacy of government scope created by the law, and how the law is received by the citizens under it. It is easy to see when considering all of these angles why there is such a need for preciseness in creating law. The fewer interpretations left to question, the better the law.
From the article “Having Their Yea in Court” and other information from our text