DC Cir: No Property Right In A Clean And Pure Environment Because No Right To Exclude Others

Remember that case from earlier this year where the Hawaii Supreme Court held that for purposes of Hawaii's Due Process Clause, the Sierra Club (any "person," actually) has a property right in a "clean and healthful environment?" We asked if that were the case, then what does that "property" right look like? For example, how does the Sierra Club exclude others from this property? And if it is a property right shared by all, it it really a "property" right?  In Delaware Riverkeeper Network v. FERC, No. 18-5084 (July 10, 2018), the U.S. Court of Appeals addressed that same question, but reached a different result. The court held that the Pennsylvania Constitution's Environmental Rights Amendment's guarantee of "clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic [sic] values of the environment" was not a liberty or property interest triggering the Fourteenth…

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