Abstract

his essay, part of a symposium celebrating the sixtieth anniversary of the Villanova Law Review, reflects on a 1971 article authored by Ferdinand Fernandez, who later would become a federal district court and then court of appeals judge. Fernandez’s article argued that the Due Process Clause of the Fourteenth Amendment creates a substantive individual right to state protection from pollution. Contrary to Fernandez’s prescriptions in 1971 at the advent of modern environmental law, legislation and regulation rather that constitutional litigation have come to dominate the environmental law landscape. In retrospect, this is not surprising. Legislatures and administrative agencies seem to be inherently better institutions than courts for making the complex policy decisions that balance the competing goals implicated by environmental issues. Moreover, when environmental issues are constitutionalized, they are more effectively addressed by mandating a legal and institutional structure conducive to protection of the individual from environmental harm, rather than attempting to guarantee the individual any particular level of environmental quality. The Pennsylvania Supreme Court’s decision in Robinson Township v. Commonwealth of Pennsylvania, 83 A.3d 901 (2013), represents a possible doctrinal pathway consistent with such a structural approach.

ISSN

0042-6229

Disciplines

Environmental Law | Law

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