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Peter Triandafillou of Orono is a retired forester.
A right to a clean and healthy environment; what’s not to like? Everyone wants a clean environment. As a constitutional amendment, however, there is plenty not to like.
LD 489 — the Pine Tree Amendment to the Maine Constitution — if passed by the Legislature and voters, would give the people of Maine a constitutional right to a clean and healthy environment, including air, water, land and ecosystems. Notably, the state cannot infringe upon these rights.
The state currently protects public resources like air, water and the environment on behalf of the people of Maine. The Maine Legislature and agencies, along with the federal government, establish the laws, rules and permitting controls to protect those resources. We have a very open citizen legislature, and the public guides lawmaking through the ballot box, legislative hearings and communications.
We also have extensive state agency regulations and permitting processes, which allow everyone to participate in rules and decisions about specific activities and developments that affect the environment. Maine municipalities also have home rule authority to adopt ordinances to further control activities that impact the environment.
LD 489, even as amended, turns that relationship upside down, allowing any Maine person to sue the state or a municipality to overturn any law, rule, ordinance, permit, or other action that the person felt did not adequately protect the environment, and therefore infringed on their environmental rights.
It does not matter if proposed or existing activities meet all local, state and federal laws and regulations. All that matters is a person’s perspective of a clean and healthy environment. A Maine court judge must then decide what a clean and healthy environment means, and decide whether the state government infringed the person’s right.
The result would paradoxically reduce the role of the elected Legislature in favor of the courts and unelected judges. The will of the people as expressed through the elected government would be replaced by special interests pursuing their agenda in the courts.
Even if the state prevailed in court, the judicial process could drag on for years, driving investment away from Maine. The damage from the cessation of new and existing business activity could be catastrophic to Maine’s economy.
Here are some plausible scenarios that would be possible if these rights are created, and if a person or group argues that their right has been infringed. Commercial lobstering could be halted because of inadequate protection of ecosystems and whales. Converting land to agricultural uses could be stopped due to inadequate protection of ecosystems. Any new development permit could be challenged for inadequate protection of the environment. An existing facility could find its environmental permits nullified by the courts, resulting in closure and layoffs.
The Pine Tree Amendment sounds like motherhood and apple pie. In reality, it is a divisive and economically damaging proposal that will reduce, not enhance, the public’s role in environmental policy. Maine’s elected government and agencies like the Department of Environmental Protection, not the courts, should continue to formulate policies needed to protect the environment without the constant threat of legal action.