How State Constitutions Can Enforce Conservation Protections
By: Natalie Kilker
Divides in the U.S. have scarcely been more apparent than now, especially in conflicting governmental priorities in natural resource conservation. The conflict is apparent in the creation, and subsequent, revocation of the designation of 1.35 million acres in Southeastern Utah as Bears Ears National Monument. In 2016, President Obama wielded his executive authority under the Antiquities Act to proclaim the national monument, citing its extraordinary archaeological and cultural record and its profound sacredness to various indigenous tribes. A mere 11 months later, President Trump revoked that designation, unwound the federal protections, and reduced Bears Ears by 85%. While the legal authority to revoke a national monument is far from settled, as lawsuits surrounding the proclamation are ongoing, the federal move presents another important question: when the federal government fails to take conservation efforts on public lands, what powers do states have to counter this? The answer to this question lies in theories and practices of environmental federalism, the effort by states to exert control over the public lands in their borders–but for conservation or exploitation, that is the question.
The state vs. federal conflict is nothing new. The effort towards balancing federal and state interests has been the hallmark of the United States since its founding, with its very Constitution the fruit of bitter struggle between unitary and confederate regimes. James Madison enforces this idea in the Federalist No. 39, “[t]he proposed Constitution, is…neither a national nor a federal Constitution, but a composition of both”. Ensuing federalism ensured the survival of the young nation but equally entrenched it in one of many bilateral divides. The tension inherent in this binary system of separation, and the express or implied responsibilities of the states and the federal government under such, often creates conflicting interests in governance. This tension is especially felt in natural resources management, and most apparently over public lands. Many states, primarily Western, have vast amounts of public lands managed by various federal agencies; in fact, over sixty percent of the land in the West is owned by the federal government. This resource coexisting within two governmental systems, controlled by federal agencies but undeniably influenced by state priorities, is frequently in contest.
This tension became widely apparent in the mid-to-late-1900’s, between state cattle ranchers and the federal land managers who leased them grazing rights, when interests in environmental protection and economic growth diverged. The management of public lands became highly controversial and a widespread movement, the Sagebrush Rebellion, emerged in force against the federal agencies. The Sagebrush Rebellion encompassed one fundamental idea: title to public lands in the West should be ceded from the federal government to the many state governments. Ideas about management of federal resources distinguishes conceptualizations of property and ownership that lead environmentalists to enquire into the proper roles of government in creating and enforcing conservation protections on public lands. Historically, the federal government has been an enforcer of environmental protection. One area of natural resource law in which the federal government retains broad authority is in the management of public lands. Famously – or as states would argue, infamously – the Supreme Court has found that the Constitution’s Property Clause gives Congress virtually limitless power to regulate public lands as it sees fit—to make needful rules which it determines to be necessary, and to override conflicting state law. It’s apparent, therefore, that federalist tensions over management of public lands is pulled taut between federal agencies and the states.
This tension initiated originally in the conservation movement of the late 19th-century. Public attitudes towards natural resources enforced a tradition of waste, in which the exhaustion of non-renewable resources was prevalent. Envisioning the destructive future ahead of the nation’s preeminent passivity towards conservation, early conservationists called for federal control and supervision of the nation’s resources, and their preservation for future generations. In establishing a public interest in conservation, value was acknowledged in setting aside land for future generations. In response, and as a product of this era, President Theodore Roosevelt became one of the most powerful voices in the conservation movement. With his authority, he established 150 national forests, 51 federal bird reserves, four national game preserves, five national parks and 18 national monuments on over 230 million acres of public land. President Roosevelt also signed the Antiquities Act, granting to presidents the authority to protect natural and cultural landmarks. Since the enumeration of this presidential authority, 15 presidents have used the Antiquities Act to create national monuments.
The federal government has often promulgated conservation interests on public lands, but the question stands, what happens when it doesn’t? President Trump’s Proclamation on Bears Ears National Monument constituted the largest reversal of national monument protection in U.S. history. As a result, the federal Bureau of Land Management released plans to open up the approximately 2 million acres of formally protected land in Utah for use by energy developers and ranchers. While many in Utah, citizens and private stakeholders alike, were pleased with valuation of commercial interests over those of conservation, the reversal sparked heated debate and legal actions across the country. The issue inherent in this effort is the legal tools states possess to counter federal efforts to diminish conservation protections on public lands. Furthermore, the issue apparent in environmental federalism lies beyond state vs. federal divides, apparent in the problems characteristic of a state-by-state approach to conservation.
There are various actions that states can take to fill the gaps created by policy whiplash from the federal government’s revolving door of conservation interests. One effort lies in state law. Legislative efforts have proven successes in state-led conservation efforts. Notably, California’s conservation efforts highlight the potential in effective deployment of state law and authority to protect natural resources. California has adopted a conservation role in interacting with the federal Coastal Zone Management Act (CZMA). While the CZMA provides federal agencies the authority to initiate myriad projects within the exclusive economic zones (EEZ’s) off state coasts, it also requires federal agencies to request a consistency determination from the state coastal agencies to confirm that the federal offshore action is consistent with state coastal policies. The California Coastal Commission, therefore, has utilized its authority to frustrate federal off-shore oil drilling, exploration, and fracking efforts. To do this, the state adopted clear coastal policies outlining strong state conservation interests in its coastal areas. This has enabled state courts to rule against the federal government in favor of the public interest in conservation when the agencies have foregone CZMA requirements. Additionally, California recently enacted Assembly Bill 342, a bill that will effectively frustrate federal oil and gas development on public lands in the state. The bill prohibits new oil and gas infrastructure on state lands near the federal public lands, setting up cost-prohibitive legislation to make oil and gas difficult to remove on federal lands. The state essentially granted itself the power to deny the federal government access to its abutting lands for the development of oil and gas infrastructure. While state-led solutions can be highly effective, the efficacy of the solution depends wholly on the pro-conservation political will of a state. This type of additional protection isn’t insulated from political whims and isn’t likely to be applied with equal force. Another tool states have to enforce conservation interests is their authority over conservation easements. A conservation easement is a voluntary, legal agreement between a private landowner and a state or land trust to permanently limit uses of the land to protect its conservation values. Conservation easements provide various benefits to both the state and the private landowner; while they protect property for the enjoyment of future generations, landowners still retain many private property rights and can accrue valuable tax benefits. Conservation easements are highly complex legal tools and the provisions of the statutes vary greatly among the states, with some incentivizing its use more than others. Overall, states have various pathways to improve conservation easement statutes to make them more attractive for private landowners to grant this type of property interest.
Another state effort, and the one I’ll focus on here, is the movement towards implementing environmental rights in state constitutions to enforce conservation as a state public policy interest. Implementing environmental constitutional provisions originates as far back as the Magna Carta, in which the right to enjoyment of fishing and access to the shore are first conceptualized. Certain provisions in state constitutions derive their impetus from the conservation movement. New York’s Constitution includes the “Forever Wild” Clause which directs public land in the Adirondacks and Catskills to be forever kept as wild forest lands. This landmark conservation measure was passed by the delegates of the 1894 constitutional convention in order to protect the watershed from ruthless logging efforts by transferring the lands to state control. This decision represented an effort to limit exploitation of one resource in furtherance of the protection of another and recognized value in natural resources apart from the basic market principles inherent in their disposition. Remarkably, constitutional delegates in the late 19th-century understood the need to depart from the long-standing American tradition of waste in the face of imminent economic upheaval from the exhaustion of a finite natural resource; thus, establishing a pecuniary interest in conservation. The Forever Wild Clause has withstood the muster of time; today, nearly 3 million acres of land managed by New York’s Department of Environmental Conservation are classified as Forest Preserve.
In addition to conservation-specific amendments, broader environmental rights amendments have been included, or proposed for inclusion, in many state constitutions. These encompass a state policy of conservation, generally, while including other protections and establishing other rights. The benefit of the forum is apparent. Unlike the federal constitution, state constitutions are easier to amend and can reflect changes in values more readily, remaining a viable pathway for evolving public interest in environmental protection. Furthermore, state constitutions are known to encompass positive rights in addition to negative rights, offering more protection than the federal equivalent. Positive rights go a step further than guaranteeing protection against certain government interference by providing citizens with a right to government action and benefits. Like with any constitutional provision, an environmental rights amendment would require precise language and framing in order to be effective. The New York State Bar has promulgated recommendations on what a state constitutional environmental right should include. Accordingly, the provision should: define the right to a healthy environment; clarify that public natural resources are held in trust by the state for the benefit of the people and future generations; assert the state’s duty to conserve and protect public natural resources; and provide for any person to enforce the right against the state and its subdivisions through appropriate legal proceedings.
Environmental rights provisions often suffer from enforceability problems, however. The availability and potency of enforcement determines how effective an environmental right will be. Sometimes directives to state legislatures to enact environmental legislation or take other action are found to lack justiciability. While a directive to the legislature is intended to impose an obligatory duty, the requirement has only moral force—while the legislature ought to act, the right intended to be conferred isn’t assured unless voluntarily enacted. Therefore, a court would find the provision non-justiciable as it’s unable to issue a mandate compelling legislative action. While various state constitutions have provisions for environmental rights, only a few states have enforceable rights. These states are Hawai’i, Montana, and Pennsylvania. In each of these states, the judiciary’s recognition of the environmental right derives from the provision’s self-executing nature. While a self-executing right would allow for increased judicial involvement, it could fill gaps in environmental disputes by providing opportunities for private parties to petition the courts in the face of environmental harm occurring independently of agency action.
Pennsylvania’s Environmental Rights Amendment was upheld by the state supreme court as articulating a right in the protection of the environment that’s “neither meaningless nor merely aspirational”, and offering protection against actions with immediate severe impact on public natural resources. Similarly, Article XI, Section 1 of the Hawai’i Constitution protects all public natural resources under the public trust doctrine and confers upon the state the duty to protect and conserve all natural resources, extending over public and private land. Other provisions of Article XI have been found to be self-executing, in particular, the Supreme Court of Hawai’i found the plain language of Article XI, Section 9 to suggest that the right of enforcement of the provision, that each person has the right to a clean and healthful environment including control of pollution and conservation of natural resources, is self-executing. Furthermore, the Supreme Court of Montana has interpreted Article II, Section 3 of Montana’s Constitution, guaranteeing all persons the right to a clean and healthful environment, as a fundamental right that may be infringed only by demonstrating a compelling state interest.. On this basis, the court found Article IX, Section 1, providing that the state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations, applicable to private action and private parties.
In these states, the judiciary has been left to determine the enforceability of the environmental rights provisions. While this can be successful, it doesn’t promote judicial consistency across the United States in interpretation of constitutional amendments. The implicated judicial discretion of environmental rights provisions in state constitutions has led to opposition to the creation of environmental rights. Opponents often cite concern over the transfer of decision-making power to the judiciary, creating uncertainty in environmental enforcement matters. The concern is valid; however, the record doesn’t support this apprehension. In the states where decision-making authority over environmental rights amendments were transferred to the judiciary, the provisions have been found to be justiciable, self-executing, and incredibly powerful for environmental protection.
Unlike state legislation or state statutes, state constitutional provisions that encompass self-executing environmental rights can encourage strong and consistent conservation protections. Provisions like environmental rights amendments gained their power by removing conservation from the often-fickle hands of the legislature and, instead, vesting its oversight within a more resolute judiciary. The amendment process, itself, might fall prey to state-level partisanship in its ratification process or referendum. But, once a right exists in the constitution, it becomes, in effect, isolated from partisan whiplash and leadership whims, insulating public opinion for the improvement of environmental rights and state-level conservation efforts from federal pressures or actions otherwise. Federal conservation efforts remain necessary and the federal government needs to play a role in protecting in conserving natural resources. But states have a variety of tools in their conservation tool belts that they can wield to protect natural resources on public lands in their borders. And while federal legal supremacy over states won’t change anytime soon, the federal government should allow states to retain greater control over their public lands to exert the protections they deem necessary to ensure cohesive management strategies and beneficial outcomes. Additionally, states should be empowered to utilize their state-level resources and inherent powers to bolster conservation efforts, absent federal involvement.
 Bruce Babbitt, Federalism and the Environment: An Intergovernmental Perspective of the Sagebrush Rebellion, 12 Env. L. 847 (1982).
 “Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States” U.S. Const., Art. IV, § 3, cl. 2.
 Kleppe v. New Mexico, 426 U.S. 529 (1976); See also United States v. San Francisco, 310 U.S. 16, 30 (1940) (holding that the Property Clause permits an exercise of the complete power which Congress has over particular public property entrusted to it).
 A. E. Dick Howard, State Constitutions and the Environment, 58 VA. L. R. 193, 197 (1972).
 “The lands of the state, now owned or hereafter acquired, constituting the forest preserve as now fixed by law, shall be forever kept as wild forest lands. They shall not be leased, sold or exchanged, or be taken by any corporation, public or private, nor shall the timber thereon be sold, removed or destroyed” N.Y. Const. art. XIV, § 1.
 Philip G. Terrie, Forever Wild Forever: The Forest Preserve Debate at the New York State Constitutional Convention of 1915, 70 N.Y. Hist. 251, 252 (1989).
 Robinson Tp., Washington County v. Commonwealth, 83 A.3d 901, 952 (Pa. Sup. Ct. 2013).
 Id. at 959.
 Hawai’i Constitution, Article XI, Section 1: The Conservation, Protection, and Use of Natural Resources, 19 U. Haw. L. R. 177, 206 (1997).
 County of Hawaii v. Ala Loop Homeowners, 235 P.3d 1103, 1125 (Haw. Sup. Ct. 2010).
 MEIC v. Dep’t of Envtl. Quality, 988 P.2d 1236, 1246 (Mont. Sup. Ct. 1999).
 Cape-France Enterprises v. Estate of Peed, 29 P.3d 1011, 1017 (Mont. Sup. Ct. 2001).
 It is important to note, however, that not all states have the same conservation interests and, in fact, legislate in favor of the economic uses of natural resources for enhancing state coffers (See Utah’s H.B. 148, the Transfer of Public Lands Act, demanding that the federal government extinguish title to certain public lands in federal control, an estimated total of 30 million acres of Utah land). State-enhanced conservation efforts may, therefore, lead to disjointed and unwieldy nation-wide conservation outcomes.