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Environment
“We must acknowledge that uncertainty is inherent in managing natural resources, recognize [that] it is usually easier to prevent environmental damage than to repair it later, and shift the burden of proof away from those advocating protection toward those proposing an action that may be harmful,” warned Christine Todd Whitman in an October 2000 speech during her tenure as governor of New Jersey, before she was named to head the U.S.. Environmental Protection Agency under President George W. Bush (b. 1946).
The environment—the physical and cultural conditions under which humans live—is not limited to the air, land, and water necessary for our survival. It includes biodiversity, the wide range of plants and animals needed for a balanced and viable environment, recreational facilities, natural resources, and historic artifacts. Some of the earliest cases relating to the environment that came before the Supreme Court involved state game protection laws. In New York ex rel. Silz v. Hesterberg (1908), the Court upheld a ban on the possession of protected wildlife even in the case of a dealer of imported game who possessed “one dead body of an imported grouse … taken in Russia.” With respect to the preservation of historic landmarks, the Court in Penn Central Transportation Co. v. City of New York (1978) upheld New York City's landmarks ordinance, under which the owners of Grand Central Terminal were denied the right to build a fifty-three-story office building on top of the historic train station, thus losing millions of dollars in potential revenue.
Protecting the General Welfare
The environment was not a specific concern of the framers of the Constitution in 1787 except as encompassed in the phrase “general Welfare,” used in the preamble and in Article I, section 8. English law dealt with offenses against public health, including nuisances and noxious trades. In his Commentaries on the Laws of England (1765–70), William Blackstone (1723–80) refers to “those acts of omission which consist of allowing any premises to remain uncleansed, … or in permitting any pool, ditch, gutter, water-course, privy, urinal, cesspool, drain, or ashpit, to be so foul … as to be injurious to health.”
Today, however, the range of possible pollutants of the environment is far greater and the scope of their effects extends worldwide, as in the case of global warming. In addition to industrial waste, emissions from burning fossil fuels, extensive deforestation, overcultivation of farmland, and nuclear waste resulting from the ordinary lawful conduct of human activities, the earth's citizens confront threats of biological, chemical, and nuclear pollution of the environment from terrorist attacks, wars, accidents, and natural disasters. All of these potential environmental hazards make protection of the environment a major concern for all countries.
A number of national constitutions today include express language addressing the environment. “Everyone has the right to be informed about the status of the environment and its protection,” states Albania's constitution (1998). Thailand's constitution (1997) acknowledges the “right of a person to share with the State and communities in the preservation and exploitation of natural resources and biological diversity and in the protection, promotion and preservation of the quality of the environment….”
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