A Constant and Difficult Task : Making Local Land Use Decisions in States with a Constitutional Right to a Healthful Environment

This article first examines the role local governments play in four states that have constitutional rights to a healthful environment -- Illinois, Pennsylvania, Montana, and Hawaii. The author notes that while local governments have long worked as quiet yet integral third partners with state and federal governments 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. Further, the author states, environmental rights cannot be fully protected in these states without the strong engagement of local government. The article also describes the constitutional provisions of these four states and summarizes how the environmental rights case law intersects with the land use law in each state. The article updates much earlier comparative scholarship on environmental rights, using a land use lens. In addition, it builds on the observations of other environmental rights scholars who have noted a gap between the constitutional right to a healthful environment and its regulatory implementation, much of which can be filled by local government. Finally, 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