The U.S. Constitution is the document upon which all of the laws governing this land are based. It is not perfect — it has been amended 27 times after much deliberation.
I want to raise the alarm on a dangerous and little-known campaign organized by a small, powerful group of wealthy special interests who seek to call an Article V convention to rewrite this foundational document.
Such a convention poses a grave danger to the rights and freedoms we all hold dear, but it also puts at grave risk the body of national environmental laws and the expert institutions that implement them. At a time when we need to be making progress to protect and preserve the environment, we cannot rewrite the Constitution with the goal to dismantle one of the most sophisticated environmental protection systems in the world that it has taken a half-century to build. But it could all go away in the blink of an eye if those pushing for this convention get their way.
There are no rules outlined in the Constitution for how the process of a convention would unfold. We must consider the agenda of those who are lobbying so hard for this convention and how they would seek to gain influence.
The American Legislative Exchange Council (ALEC) has been the driving force. Though ALEC does not disclose its funding sources, a study by the Center for Media and Democracy found that about 98% of its funding comes from corporations like ExxonMobil, corporate foundations like the Charles G. Koch Charitable Foundation, and trade associations like the American Petroleum Institute.
ALEC’s priorities include weakening air and water pollution standards, eviscerating the Endangered Species Act, expanding offshore drilling for oil and gas, giving states power to condemn federal lands containing fossil fuels, and opposing federal and state efforts to combat climate change and shift to cleaner sources of energy and transportation, despite the overwhelming scientific consensus that urgent action is needed to avoid the grave consequences for human health and safety that are on the horizon.
So, how might a constitutional convention convened at the behest of 34 states and prodded by ALEC set about to dismantle federal environmental laws and institutions? For starters, it might redraw the boundaries of the commerce clause to severely limit Congress’ power to enact environmental laws. Given that virtually every one of the nation’s bedrock environmental laws — clean air, clean water, hazardous waste regulation, contaminated site cleanup, strip-mine reclamation, endangered species conservation, and so on — rests upon the commerce clause, a constitutional amendment stripping Congress of authority would have devastating consequences for human and environmental health. Perhaps along the lines suggested by Justice Clarence Thomas in his concurring opinion in United States v. Lopez, where he asserted, without much historical support, that “At the time the original Constitution was ratified, ‘commerce’ consisted of selling, buying, and bartering, as well as transporting for these purposes.”
Or, consider how an unbridled convention, that, as the late Chief Justice Warren Berger noted, “could make its own rules and set its own agenda,” might decide to provide greater protection for private property under the Fifth Amendment takings provision. Requiring compensation anytime a regulation “reduces” fair market value, by any amount and regardless of the public harms and civic values motivating the regulation, would be a radical departure from takings jurisprudence.
Currently, regulatory takings law requires consideration of background principles of state law to determine what rights an owner possesses and a thoughtful balancing of costs to the landowner and the costs to society and to other landowners of activities that have negative spillover effects. This is complex stuff not easily reduced to a simple formula of the state (i.e., taxpayers) must pay property owners not to pollute or not to destroy important ecological resources (wetlands, for example). As Justice Holmes famously said in Pennsylvania v. Mahon: “Government hardly could go on if to some extent values incident to property could not be diminished.”
Or, to take one last example, suppose the convention decided to enshrine in the Constitution a strict benefit cost test for every new health and safety regulation, or every rule designed to conserve the rapidly growing list of endangered species — a test that required the benefits of rule must exceed the costs as determined by a monetary calculation? That would put lots of things with no market value — the endangered American burying beetle, for example — at a distinct disadvantage. Cost-benefit analyses require agencies to create artificial prices for unquantifiable benefits and exclude important fairness and morality considerations. According to the Center for Effective Government, they are expensive to perform, tend to politicize decisions, and should not be determinative.
Preserving and protecting our environment and our Constitution go hand in hand, and are our greatest challenges in the 21st century.
Patrick Parenteau is professor of law at Vermont Law School.