미국 헌법상 환경권론의 전개와 규범적 평가

• 영문명: The Unfolding of the debates of the right to a clean and healthful environment and Its normative assessment in the U.S. Constitutional Law and Cases
• 발행기관: 한국헌법학회
• 저자명: 석인선(Seok In-Sun)
• 간행물 정보: 『헌법학연구』憲法學硏究 第12卷 第3號, 363~404쪽, 전체 42쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2006.09.01

영문 초록

  While the U.S. Constitution does not contain any explicit environmental protection provision, several states within the United States have included the right to a decent and healthful environment in their own Constitutions. Recognizing the need for a uniform response to national environmental problems, Congress has developed an extensive statutory framework to regulate pollution control and to protect natural resources. To avoid the shortcomings of the piecemeal, statutory approach to environmental protection, there have been a number of creative attempts to read environmental rights in the federal Constitution.
  In contrast to the reluctance of the federal legislature and judiciary to expand their interpretation of fundamental rights, individual states have recently begun to increase their recognition of such rights and liberties. Environmental issues in particular have been at the forefront of state constitutional reform. State legislatures and judiciaries have been much more willing than their federal counterparts to create and enforce a constitutional right to a clean and healthful environment.
  This article examines efforts to create a constitutional right to a clean and healthful environment and discusses constitutional interpretations of the right both at federal and state level.
  Part Ⅰ provides the general background of arguments on environmental right in the U.S. constitution.
  Part Ⅱ discusses past and present attempts to create federal constitutional amendment recognizing the right to a healthful environment.
  Part Ⅱ also includes parallel efforts to enact analogous constitutional rights on the state level.
  Part Ⅲ analyzes federal judicial interpretation of the right to a healthful environment and state constitutional provisions recognizing the right and the cases involved with the assertion of rights under these provisions.
  Part Ⅳ comments arguments in the right to a decent and healthful environment under the U.S. Constitution and state constitutions.
  Finally, Part Ⅴ suggests that application of the right to a clean and healthful environment at the national level and at the state level in the United States illustrate that the right to a clean and healthful environment is a workable concept within those jurisdictions and that further, federal courts can use strong state precedent as a guide.

목차

Ⅰ. 미국 헌법상 환경권론의 대두배경
Ⅱ. 헌법상 환경권 규정화 논의
Ⅲ. 헌법상 환경권에 대한 사법적 해석
Ⅳ. 미국 헌법상 환경권론에 대한 비판과 전망
Ⅴ. 맺음말
참고문헌
[Abstract]

키워드

환경권 환경권론 자기집행력 환경권의 사법적 해석 헌법상 환경권 규정화 논의 the right to a clean and healthful environment the debate of the right to a clean and healthful environment self-execution judicial interpretation of environmental provision in the constitution constitutionalizing the environmental protection