This article is based on a paper entitled "Environmental Quality as a Political Question" that was delivered at the University of Tennessee's October 1987 Bicentennial Conference on The Constitution and the Environment.
Shortly after the environmental movement first got underway, alp:1.ost 20 years ago now, there appeared a little parade of articles urging a constitutional right to a clean environment. While a few of the articles campaigned for an amendment to this effect, most of them reasoned that an amendment was unnecessary. They argued that the right in question is already in the Constitution, however inconspicuously - in the Ninth Amendment, say, or in the concept of ordered liberty protected by the Due Process Clause, or in the so-called penumbra of the Bills of Rights. They asked the courts simply to acknowledge this reading, but the courts did not. The United States Supreme Court has not subscribed to any of the theories advanced by the articles, and neither have the lower federal courts nor the state courts, with a couple of inconsequential exceptions.
James E. Krier,
The Environment, the Constitution, and the Coupling of Fallacy,
Law Quadrangle (formerly Law Quad Notes)
Available at: https://repository.law.umich.edu/lqnotes/vol32/iss3/6