The Emergence of ‘Fixed Constitutional Commitments’ on the Environment: A Tool for Addressing Climate Change?

Beginning in the 1970s, a wave of modern reforms around the world has resulted in a variety of constitutionalized protections for the environment. But the vagueness of some of these provisions, as well as democratic contestation, may frustrate action to deal with the snowballing impacts of climate change. A fixed constitutional commitment might address such problems by specifying a precise quantum of state action required. If successfully enacted and enforced, they may demonstrate that democratic societies can remain responsive to emergencies at least as well as democracy’s competitors – writes Ron Levy

Introduction: a new constitutional tool for the environment

When the Australian state of Victoria constitutionally entrenched a ban on fracking in 2021, it joined a handful of jurisdictions around the world that have entrenched ‘fixed constitutional commitments’ on the environment. Such constitutional provisions protect the environment to a specific quantum. For instance, the constitutions of Kenya, Bhutan and New York State guarantee a minimum level of forest coverage (e.g., for Bhutan, at least 60% of land in the country).

Environmental constitutionalism itself is not new. Beginning in Portugal in 1976, a wave of modern constitutional reforms have adopted protections for the environment, with a majority of national constitutions now providing one or more protections. However, nearly all such protections set out aspirational goals, often in vague terms. For instance, South Africa’s Bill of Rights guarantees everyone the “right (a) to an environment that is not harmful to their health or well-being; and (b) to have the environment protected…” Elsewhere we see rights to a ‘healthy’ environment, or obligations to ‘protect and improve’ the environment.

A key problem with provisions such as these is that they continue to allow short-term economic interests – which often myopically appear contrary to environmental objectives – to be balanced against environmental objectives. Under-enforcement of environmental provisions is a perennial difficulty as a result. Fixed constitutional commitments, by contrast, seek to curtail vagueness and balancing – features that are unsuited to chronic emergencies like climate change. An adequate response to the climate emergency will likely require a resolute policy response over the extreme long term, despite changing governments and their wavering political commitments.

In this piece I lay out the key features of fixed constitutional commitments, focusing on their past uses in the environmental context. I then speculate about how such commitments might be adapted in future as responses to climate change, for instance by specifying and entrenching carbon reduction targets. However, I also consider an important objection to fixed constitutional commitments: that constitutionally settling policy would perhaps unduly curtail democratic deliberation. Finally, offering several possible answers in reply, I generally discount this objection.

Vagueness: the bane of environmental constitutional provisions

In the past half century, after Portugal led the way, approximately one-hundred other national constitutions followed suit by entrenching environmental protections of the environment. Yet, clearly this has not been enough. We are still on track toward catastrophic climate change, as a litany of recent reports makes clear. To close observers of constitutions, it should be no surprise that constitutional enactments do not necessarily lead to effective policy change on the ground. Often, there is simply too much room for other concerns to detract from the fulfilment of vague commitments.

Constitutional vagueness can be a deliberate strategy. Such vagueness may leave room for democratic choices. Given a constitution’s broad substantive and procedural framework, vagueness allows democratic choices to elaborate the constitution’s contents over time. Often, then, it is the people themselves, directly or through their representatives, who are meant to fill in the details of the constitution. Many constitutional scholars advocate versions of this ideal – including those who understand constitutions as developing through dialogues between courts and elected branches of government, and others who see constitutional development taking place via deliberations widely dispersed across a society. In either case, constitutions are not meant to be retrospective, that is, to lock up past policy decisions. Instead, they are prospective: they merely begin a policy conversation under the broad terms of the constitution.

On the issue of climate change, jurisdictions may need consistent policy over the extreme long term: policy that is not subject to the changes of direction that arrive with each change of government.

While these models of constitutional practice are suited to many policy questions, sometimes vagueness and democratic contestation may keep a society’s responses to pressing policy challenges mired at square one. On the issue of climate change, jurisdictions may need consistent policy over the extreme long term: policy that is not subject to the changes of direction that arrive with each change of government. In Australia, Canada, the United States and elsewhere, for instance, commitments to climate change mitigation have seen extreme swings on the pendulum of electoral politics.

Fixed constitutional commitments: three features

A fixed constitutional commitment might address such problems by specifying a requirement for a net-zero-carbon economy by a given year. To understand this possibility, let us examine past, as well as prospective, fixed constitutional commitments in more detail. Such commitments are defined by three principal features.

1. Substantive Fixity

A fixed constitutional commitment is generally more precise than other constitutional provisions. It especially aims to limit contestation around a constitutional standard’s magnitude. The provision stipulates a precise quantum of activity that is to be permitted or required of governments or other actors. In this way it is intended to resist the balancing that is a ubiquitous feature of most contemporary constitutional practice.

Article 5(3) of Bhutan’s Constitution, enacted in 2008, requires the government to ensure that 60% or more of the country remain forested in perpetuity. This figure provides a highly specific minimum target. Kenya’s 2010 Constitution, in article 69(1)(b), in a similar vein, requires minimum forest cover of at least 10%. In addition, in what may be the earliest example of a constitution that includes environmental protections, the New York State Constitution, in Article XIV § 1, provides for an absolute prohibition on the deforestation of state lands:

The lands of the state, now owned or hereafter acquired, constituting the forest preserve as now fixed by law, shall be forever kept as wild forest lands. They shall not be leased, sold or exchanged, or be taken by any corporation, public or private, nor shall the timber thereon be sold, removed or destroyed.

Absolute environmental standards are effectively quantitative: they stipulate a fixed magnitude of environmental protection, where the quantum of activity allowed is zero. Another example of an absolute prohibition – this one entrenched via amendment to the Constitution Act 1975 (Vic) of the State of Victoria – entered into force in 2021. Sections 98 and 99 entrench a ban on “hydraulic fracturing and coal seam gas exploration and mining.” Section 99(1) entrenches provisions that prohibit hydraulic fracturing in petroleum operations, including “exploration for, or mining of, coal seam gas on land.” The new constitutional provisions stipulate that the Victorian Parliament “may not by any Act, whether expressly or by implication,” change any of these provisions, except by a three-fifths vote in each House of Parliament (sections 18(1A), (2)).

The provisions above each seek to secure, over the long term, a given magnitude of environmental protection. However, still apparently missing from any domestic constitution is a fixed constitutional commitment that addresses climate change directly and comprehensively. Forestation, hydraulic fracturing and gas mining merely overlap with, or lie within, the larger issue of climate change.

The closest approximation to a comprehensive fixed constitutional commitment on climate change arises in international law: the Paris Agreement.

The closest approximation to a comprehensive fixed constitutional commitment on climate change arises in international law: the Paris Agreement obligates parties to submit Nationally Determined Contributions setting out targets to mitigate greenhouse gas emissions consistent with the aims of the Agreement. The Agreement is domestically binding in that subset of monist states where international law enjoys constitutional status. Nevertheless, while the procedures for establishing substantive commitments may be binding under the Paris Agreement, the Agreement itself does not set out specific binding standards. In this respect, fixed constitutional commitments to address climate change would represent an important further step.

2. Binding

Fixed constitutional commitments ideally are also binding. More specifically, they are enforceable if breached. Enforcement can be carried out either by courts or, depending on their mandates, independent fourth-branch institutions. The Bhutanese Constitution takes the judicial enforcement route. Articles 1(11) and 21(18), arguably, enlist the Supreme Court of Bhutan to interpret the forest cover provision and to issue judgments in case of breach. The Kenyan Constitution similarly contemplates judicial interpretation of its fixed constitutional commitment to 10% forest cover, under article 70.

Provided that courts (including environmental courts and tribunals) are largely trusted and trustworthy in a given jurisdiction, their authority may help to secure fixed commitment compliance. Yet, as an alternative to judicial enforcement, there may be purpose-designed fourth-branch bodies such as independent climate commissions or advisory panels. Commissions are common institutional devices for environmental decision-making; their creation in the area of climate change has even been judicially mandated. Like a court, a commission can exercise a monitoring role for financial and carbon budgets. And, like some courts, a commission may be more likely than elected governments to steer a consistent course, free of partisan influence. Yet unlike courts, well-resourced fourth-branch institutions can potentially draw on extensive internal research staff to keep up with developments in the science and engineering of climate change mitigation.

3. Entrenched

Fixed constitutional commitments are entrenched, either formally or informally. The rationale for entrenchment is clear: a legal rule that is hard to alter may in turn persist over the long term needed to address challenges such as climate change. There are evident risks when climate change policies are left unentrenched. For instance, in 2011 Australia passed the Clean Energy Act, which created a new federal carbon price, by a bare majority in Parliament. After a change of government soon after, and the ascension of a prime minister either unconvinced that climate change was real or that it needed to be addressed, the Act was repealed.

Of course, whether formal entrenchment is likely to occur remains uncertain. Political attitudes in some jurisdictions may generally support climate change mitigation. In those places, fixed commitments may solidify such attitudes while potentially guarding against wavering official policy in the future. But majority political support may be less forthcoming in other places, at least among legislators. Here the case for entrenchment may be stronger – but the likelihood of entrenchment weaker. Given the long duration of the climate emergency, however, the majority support needed to entrench a fixed commitment may at least transiently materialise sooner or later, for instance after tangible demonstrations that climate change is happening (e.g., extreme temperature events or floods). The only question may be whether majority agreement can materialise soon enough to pursue mitigation and adaption in a timely way.

To be sure, in some places entrenchment is not difficult to achieve. In the Australian states, constitutional entrenchment may be achieved via ordinary legislation under section 6 of the Australia Acts 1986. In other places, however, the act of entrenchment is not so simple. Yet even in those places, the procedures required may sometimes facilitate entrenchment, rather than prevent it. Direct or deliberative democratic procedures, in particular, may lend outsized influence to majorities of citizens, who generally favour mitigation, compared with legislators, who are often more reluctant to act. For example, in some jurisdictions (e.g., Croatia, Italy, New Zealand, Switzerland and several US states), formal or informal constitutional change can begin at the behest of citizens who initiate the process via a petition that triggers a referendum. This presents an important opening for fixed commitments to be enacted and entrenched despite the general opposition of legislators. Indeed, states in the US have recently seen a spate of ballot initiatives (i.e., referendums initiated by citizen petitions) intending to address climate change.

Another possibility is that an extraordinary democratic or deliberative process may informally entrench a fixed commitment. Before enacting the Clean Energy Act in 2011, the Australian government announced, but later abandoned, a policy of using a citizens’ assembly on climate change to determine the direction of climate policy. Under pressure from the Australian Greens party – which understood the science of climate change as largely settled, and a citizens’ assembly as therefore “a complete abrogation of responsibility” – the government discarded its citizens’ assembly plan and passed the law using its bare majority. Had the citizens’ assembly run, however, there is a possibility that the outsized legitimacy and public trust often ascribed to such a deliberative democratic consultation would have prevented the Act’s repeal later on.

Still another option is to run an informal entrenchment process outside of the auspices of governments. Such a process would not require the support of a reluctant or divided government. Yet, a prominent and carefully conducted non-governmental process, such as a privately-administered plebiscite or citizens’ assembly may, as my co-authors and I speculated in a recent book, consolidate and demonstrate public support for a mitigation policy.

Criticism and responses

In a longer paper in which I explore environmental fixed commitments, I also explore a key objection to them. In Victoria, one opposition legislator described the anti-fracking ban as “undemocratic.” This objection had some merit: fixed constitutional commitments appear to undermine the prospective constitutional model from which, as we saw, many commentators think constitutions derive their legitimacy. By entrenching past deliberations, do we deny a democracy room to function and flesh out policy?

There are at least three possible responses to this criticism (each explored at length in another piece).

1. Do existential emergencies justify fixed commitments?

The first, and least satisfactory, response is that an existential emergency may justify drastic measures, from curbing democracy to curbing fundamental rights. Some environmentalists would take this view. They might therefore assume that, given the dire nature of the environmental emergency, it is worth curbing democracy to avoid catastrophic destruction. The trouble with this response is that by adopting this strategy, might we in any event destroy what is distinctive and worth saving in our societies – particularly democracy and rights?

Two further answers to the democratic objection may be more suitable. Both question, in the first place, the premise that fixed constitutional commitments are necessarily detrimental to democracy.  

2. Correcting malrepresentation

Fixed climate commitments may be seen as shoring up democracy, that is, correcting democratic failures where democratic malrepresentation is the norm. In many countries, elected representatives do a strikingly poor job of representing citizen preferences on environmental issues. Despite overwhelming popular support for an adequate response to the climate emergency, many elected actors oppose such a response or omit to act. Legislative democracy is often poorly geared to addressing the climate, and in some contexts the issue is becoming increasingly partisan. As well, given the pressing need to cultivate political donors in many countries, many notional representatives understand their real constituents as the businesses and other interests that underwrite electoral campaigns. There is ample empirical evidence of this phenomenon in various jurisdictions.

In addition, legislatures are also focused on the short term. This can yield intergenerational malrepresentation: a failure to account for the interests of generations, presumably more numerous than our own, still to come – or of those already alive but who have yet to reach voting age. By securing a climate change response well into the future, fixed commitments may accommodate these generations’ interests.

If constitutional commitments correct representational mismatches, they should perhaps be seen not as anti-democratic, but rather as correcting certain recurring democratic faults. They may impose the decisions that representative democracy would have reached, had certain demonstrable faults of democracy not repeatedly prevented those decisions.

3. Enabling deliberation about policy specifics

A further reason for viewing fixed constitutional climate commitments as pro-democratic is that, before a community can deliberate about policy, it must settle its essential priorities. A democracy that cannot move beyond priority-setting stages may be unable to move on to deliberate over policy specifics, where often more numerous policy questions arise. For example, in the environmental field, broad policy objectives require implementation through trial-and-error: steps along a policy path, pauses to assess progress, and further trials. But a path that itself remains tentative may not be able to drive such policy development. In the EU, for example, the development of emissions trading never quite got off the ground until governments finally agreed to firm commitments.

The idea of taking certain key matters ‘off-line’ is longstanding in theories of law.

The idea of taking certain key matters ‘off-line’ is longstanding in theories of law. Law is thought to settle the ground rules that enable deliberation; law can move a range of disputes “out of the domain of the public and the political” and promote “determinacy [and] finality”, according to one line of thinking. Fixed constitutional commitments may similarly enable, in net, deliberation about policy specifics on implementation, which otherwise would not get off the ground.

Of course, fixed constitutional commitments should not be overused. Their use should be limited to cases where there is strong public support for a policy, but insufficient concrete political action – or where action has ground to a halt due to unending discussions, at the preliminary stages, of whether to take action at all.

Conclusion

In most democratic countries, there has been much discussion about whether democracies have become too sclerotic, too prone to division, and unable to take coherent action on long-term problems. In a speech given by Joe Biden shortly after taking office, he defended liberal democracies, but called on them to do better:

I believe we’re at an inflection point in world history – the moment where it falls to us to prove that democracies will not just endure, but they will excel as we rise to seize the enormous opportunities of a new age. We have to discredit those who believe that the age of democracy is over, as some of our fellow nations believe. We have to expose as false the narrative that decrees of dictators can match the speed and scale of the 21st [century] challenges.

Democracies face many dangerous and complex challenges, including climate change and the related problems of biodiversity collapse and mass human migration. These challenges are both existential and long-lasting: they will span multiple generations and governments. Their causes are complex, and based in a science of climate change that is often misrepresented and misunderstood in public debate. Democracy’s weaknesses are, in turn, evident in many countries’ floundering or still inchoate responses to the climate emergency.

Nevertheless, rather than concede democratic decline or seek alternatives to it, our efforts should focus on shoring up the quality of democratic governance. There is a need for new tools of long-term policy action capable of securing a stable response, and of avoiding the policymaking quagmires that have made some democratic societies unable even to begin addressing chronic emergencies in adequate ways. Fixed commitments can be viewed in this vein: as efforts at democratic repair work. If successfully enacted and enforced, they may demonstrate that democratic societies can remain responsive to emergencies at least as well as democracy’s competitors.

Associate Professor Ron Levy researches constitutional law and deliberative democracy at the Australian National University and directs the International Advisory Panel on Referendums. He tweets at @RonWLevy. This piece is derived from a larger work: Ron Levy, ‘Fixed Constitutional Commitments: Evaluating Environmental Constitutionalism’s “New Frontier”’ 46(1) Melbourne University Law Review 82 (2022).

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Suggested citation: Ron Levy, ‘The Emergence of ‘Fixed Constitutional Commitments’ on the Environment:  A Tool for Addressing Climate Change?’, ConstitutionNet, International IDEA, 31 October 2022, https://https://constitutionnet.org/news/emergence-fixed-constitutional-commitments-environment-tool-addressing-climate-change