Monday, February 6, 2012

What Kind of Constitutional Design is Optimal for Environmental Governance?

The New York Times recently published an article (see "‘We the People’ Loses Appeal With People Around the World") highlighting a fascinating study of the U.S. Constitution's influence over constitutional design in other countries. The study, a piece of empirical legal scholarship titled "The Declining Influence of the U.S. Constitution" by David Law and Mila Versteeg, analyzes the provisions of 729 constitutions adopted by 188 countries from 1946-2006. In 1987, Time magazine detailed that over 160 out of 170 countries in the world maintained constitutions modeled either directly or indirectly on the U.S. Constitution. Even so, during the 1980's and 1990's democratic constitutions started becoming increasingly distinct from the U.S. Constitution, and "[t]he turn of the twenty-first century . . . saw the beginning of a steep plunge that continues through the most recent years for which we have data, to the point that the constitutions of the world’s democracies are, on average, less similar to the U.S. Constitution now than they were at the end of World War II." Even Supreme Court Justice Ginsberg recently stated that she would not look to the U.S. Constitution as a model if drafting a new constitution today.  

The article cites numerous reasons for the declining influence of the U.S. Constitution on constitutional design. One reason in particular stands out, and raises a question about what kind of constitutional design is most appropriate for environmental governance - the difficulty of amending a constitution. Sanford Levinson has argued that "the U.S. Constitution is the most difficult to amend of any constitution currently existing in the world today." On the other hand, some other nations "routinely trade in their constitutions wholesale, replacing them on average every 19 years."

The ability or inability to readily amend a country's constitution has important implications for environmental governance, particularly in federal systems where the constitution may allocate regulatory authority to different levels of government. In many countries, regulatory authority over environmental governance of all kinds is allocated to all levels of government in a dynamic manner - to both national and numerous subnational governments (from states/provinces on down to local governments). Yet in some federal systems, while much environmental governance may be described as dynamic in nature, a dualist structure remains in certain areas whereby environmental regulatory authority over particular resources or issue areas may be divided in an exclusive manner between national and subnational governments. Take Canada, for example, where the constitution contains explicit language granting exclusive regulatory authority over subnational forest policy to the provinces - read, no federal government input allowed. This is a significant state of affairs since the Canadian provinces actually own or otherwise control 84 percent of the nation's forests (see here for a more involved discussion of the below analysis). Interestingly, both Justice Ginsberg and the president of the Supreme Court of Israel, Aharon Barak, indicated that the Canadian Charter of Rights and Freedoms, adopted in 1982, serves as a superior model of constitutional design to the U.S. Constitution. Yet when it comes to the potential re-allocation of environmental regulatory authority between national and subnational governments, the Canadian model presents some serious problems. Canada is on pace to lose over eleven million acres of boreal forest over the next fifty years due to agricultural conversion and urbanization. While the provinces may very well take action to prevent this eventuality, in the absence of provincial action the federal government has little recourse to coordinate subnational forest policies via regulation - and indeed even voluntary cooperative efforts by the federal government have failed to affect subnational forest policy in Canada as the provinces vigorously guard their autonomy over forests.

So what if Canada wanted to re-allocate regulatory authority to allow greater national inputs into subnational forest policy? The Canadian Constitution, I would argue, may present a more intractable amendatory/"federal regulatory authority" state of affairs than even the U.S. Constitution. The Canadian Constitution has only been amended ten times since Canada officially received the power to amend its own constitution from the British in 1982. Though Canada has a formal amendment procedure, it was not unanimously agreed to by the provinces because Quebec voiced resistance to its legitimacy. In fact, some have described the rules governing constitutional amendment in Canada as a “failure.”  Not only is the legitimacy of the amending procedures called into question, but it is exceedingly difficult to pass an amendment that effectively binds the provinces. An amendment to reallocate authority over forest policy, for example, would require approval of two-thirds of the provinces, including at least fifty percent of the population. But once passed, provinces may opt out merely by passing a resolution opposing the amendment within one year. In addition, an amendment fails altogether if the amendment procedures are not finalized within three years of the beginning of the process, which may allow ever-shifting changes in political will, increasing opposition, and election-driven changes in the provinces’ political make-up to lead to amendment failures. Finally, since 1982 proposed constitutional amendments in Canada have nearly uniformly sought to grant more power to the provinces relative to the national government. As a result, it would be both politically difficult to persuade the provinces to divest their current explicit constitutional authority over forest policy on 84 percent of Canada’s forests and perhaps legally insufficient to do so if some provinces opted out. So while Canada might provide an attractive alternative in some aspects of constitutional design, it may not always be so in the context of particular mechanisms of environmental governance. Indeed, because of the more stringent brand of constitutional decentralization in Canada, at least with respect to environmental issues, the U.S. Constitution may sometimes be seen as superior in design. The Canadian national government does not contain any power similar in strength and flexibility to the U.S. Commerce Clause that allows, for example, a strong national-level endangered species act - a state of affairs that is often lamented by Canadian scholars. 

The difficulty of amending a constitution is really only a problem if issues arise regarding how authority over environmental subject matter is initially allocated - or in the case of the U.S. and the Commerce Clause, how the judiciary has developed its body of constitutional law over time (the U.S. judiciary granting greater environmental powers to the federal government under the Commerce Clause). Of course when the U.S. Constitution was drafted, our understanding of environmental issues was bleak, and the judiciary has indeed expanded interpretation of constitutional provisions to grant greater federal authority to the U.S. government - in stark contrast to the weak power of the Canadian federal government in some areas. Yet even in the U.S. the remnants of dual federalism remain. Though the U.S. has a robust federal endangered species law, private forest management, for example, remains a "land use" regulatory role still largely viewed as the constitutional purview of state and local governments, creating a similar potential restriction on the U.S. federal government over subnational forest policy as that seen in Canada (though far less concrete, as the Commerce Clause may be interpreted broadly and there are no explicit constitutional provisions related to forestry as there are in Canada). Ultimately, the difficulty in amending the U.S. Constitution may be a good thing in the context of endangered species (especially in the current political climate), as federal authority is already well solidified, but not such a good thing in the case of U.S. and Canadian subnational forest policy. And it seems clear, to me at least, that given the proper allocation of authority at the outset, a constitution being difficult to amend might in some cases provide more robust protections for the environment, especially in the developing world, since environmental protection provisions would not change on the whim of the government every 19 years, or whenever the economy dips, and so on.

As J.B. Ruhl has pointed out, it seems clear that explicit constitutional environmental rights and protections are not necessarily desirable, despite continued normative scholarly arguments to the contrary. As a result, the quality of constitutional design in the environmental governance context is often an issue of allocation of governance authority (in addition to, of course, the political will of a government to act on that authority - outside the scope of this discussion). Therefore, in the environmental governance context we should engage in nuanced assessment of all of the relevant variables when making claims about the relative values presented in the constitutional design of certain countries. Because when it comes to certain forms of environmental governance, like national-level protection of endangered species, the U.S. Constitution may not be so bad after all.

- Blake Hudson

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