DC Cir: No Property Right In A Clean And Pure Environment Because No Right To Exclude Others

by Robert Thomas, InverseCondemnation, July 12, 2018

Remember that case from earlier this year where the Hawaii Supreme Court held that for purposes of Hawaii's Due Process Clause, the Sierra Club (any "person," actually) has a property right in a "clean and healthful environment?"

We asked if that were the case, then what does that "property" right look like? For example, how does the Sierra Club exclude others from this property? And if it is a property right shared by all, it it really a "property" right? 

In Delaware Riverkeeper Network v. FERC, No. 18-5084 (July 10, 2018), the U.S. Court of Appeals addressed that same question, but reached a different result. The court held that the Pennsylvania Constitution's Environmental Rights Amendment's guarantee of "clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic [sic] values of the environment" was not a liberty or property interest triggering the Fourteenth Amendment's due process protections. 

The case was a challenge by Riverkeeper to the Federal Energy Regulatory Commission's enabling statute, which requires FERC to recover its costs from the industries it regulates. Riverkeeper asserted this makes it more likely that FERC will approve pipelines. 

The court first concluded that Riverkeeper had standing. And it quickly dismissed its claim to possess a liberty interest because the ERA's rights are not "essential to the orderly pursuit of happiness by free men." Slip op. at 7. "[T]he right to a healthy environment can[not] itself fairly be described as a 'liberty' interest." Id.

The court subjected Riverkeeper's "property" claim to a bit more analysis. State law defines property, and Pennsylvania's ERA "guarantees" certain things, and even calls them "rights." The court concluded, however, that the ERA's rights are "vague and indeterminate." Slip op. at 8. And the rights it recognizes do not have "some acertainable monetary value." Id. (citing Roberts v. United States, 741  F.3d 152, 162 (D.C. Cir. 2014)).  

Most importantly, the question is whether the rights look like "any traditional conception of property." Slip op. at 8-9. The court held that because the ERA recognizes the rights as belonging to "the people," it failed this latter test:

Most importantly, the Environmental Rights Amendment creates no right to exclude—or anything like it. To the contrary, its first sentence vests the single “right” at issue collectively in “[t]he people,” its second sentence confirms that “Pennsylvania’s public natural resources are the common property of all the people,” and its third sentence requires the Commonwealth to conserve and maintain environmental resources “for the benefit of all the people.” Pa. Const. art. I, § 27 (emphases added). Moreover, although the Supreme Court of Pennsylvania has held that the Amendment is judicially enforceable by private individuals, it has also confirmed that the right the Amendment creates is shared equally by all Pennsylvanians. See Penn. Envtl. Def. Found. v. Pennsylvania, 161 A.3d 911, 931 (Pa. 2017); Robinson Twp. v. Pennsylvania, 83 A.3d 901, 951 & n.39 (Pa. 2013) (plurality opinion). In other words, no Pennsylvanian may exclude any other from the right to clean air, pure water, and a preserved environment. So, the Amendment protects not private property rights, but public goods. In that respect, it is like “the right that we all possess to use the public lands”—which for due-process purposes “is not the ‘property’ right of anyone.” Coll. Sav. Bank, 527 U.S. at 673.

Slip op. at 9.  

The court concluded that "[t]he amendment is unlike traditional or even new property in yet other respects. For one thing, the right to a preserved environment cannot be bought or sold—and thus has no 'ascertainable monetary value,' as the Supreme Court’s 'property-as-entitlement cases have implicitly required.'" Slip op. at 10.

We think this is the right analysis -- the one which the Hawaii Supreme Court should have applied -- even though we recognize that the Hawaii case was in state court under the Hawaii Constitution's due process clause and thus the Hawaii court could read it to provide more protection than its federal counterpart. But unaddressed by the Hawaii court's opinion was the "right to exclude" question -- an argument we think is solid, and was correctly applied by the Third Circuit. 

PDF: Delaware Riverkeeper Network v. FERC, No. 17-5084 (D.C. Cir. July 10, 2018)

December, 2017: Hawaii Supreme Court Rules Public has Property Right to a Clean Environment

March, 2018: Department Of Precrime: HAWSCT Considers Cultural "Property" on Mauna Kea