Sam Bookmann (Harvard University, Law School) has posted Demystifying Environmental Constitutionalism (Forthcoming, Environmental Law, Vol. 54, No. 1, 2024) on SSRN. Here is the abstract:
In an age of pervasive environmental crisis, a vast majority of the world’s constitutions now include environmental provisions. But how does environmental constitutionalism improve environmental governance? Constitutionalization tells us little about how the environment should be managed. Instead, environmental constitutionalism is capable of many different meanings and legal forms. This article draws out three different paradigms: liberal-conservative, technocratic, and transformational. Each paradigm corresponds to a different set of legal institutions, constitutional provisions, and approaches to interpretation, making drastically different demands of constitutional drafters and judges. Environmental constitutionalism calls for urgent and high-level action, without revealing a clear agenda for environmental governance. Before answering its call, we should demystify its meaning.
And environmental constitutionalism remains potentially dangerous for another reason: it almost universally involves a turn to rights and courts. Like all forms of constitutional entrenchment, such a turn comes at the expense of democratic participation. But it is precisely this high energy democracy that is necessary to truly transform the institutions which have brought us to environmental crisis. This article argues for the reconstruction of environmental constitutionalism as constitutional environmental democracy. Drawing on traditions of popular and political constitutionalism, constitutional environmental democracy emphasizes the role of participatory institutions outside the judicial branch. This article sketches out a future research agenda centered on legislative mandates, deliberative assemblies, and constitutional experimentalism. In the Anthropocene, constitutions matter: but they matter beyond the world of rights and courts.
Highly recommended.
