Initiative #63

initiative #63:
right to a healthy environment

what does it mean?

what would it do?

what is the current law?

why did the proponents want to change the current system?

have initiatives like this been tried in Colorado before?

how would it have impacted Colorado's water community?

Initiative #63 is out for signature collection. It would amend the Colorado Constitution by adding a fundamental 'right to a healthy environment' to the Bill of Rights Article II.

The following FAQ's will provide insight into Initiative #63, how it works, and what impacts it might have on the water community.

Mandate state and local governments to assign the highest priority to protecting a healthy environment by giving all local governments the power to enact laws and regulations to protect a healthy environment.
Exempt local governments from preemption by state law if the local laws are more protective of the environment than the state laws.
Provide a right of action for any aggrieved person or government entity to sue for damages, or injunctive or declaratory relief, including punitive damages and attorney fees.

Initiative #63 does not explicitly impose a public trust or common property rights that would conflict with Constitutional protections for water rights and other property rights.

The Public Trust Doctrine provides in part that 'the state holds certain natural resources in trust for the benefit of its citizens.' As a common law, it prevents the diminishment of sovereign authority or the elimination of public access to navigable waters and submerged lands. In Colorado, the Public Trust Doctrine holds no legal authority, and the Colorado Supreme Court reinforced this in the recent case: Longmont v. Colorado Oil and Gas Association, CO 29 (2016).
Article XVI, Section 5 of the Colorado Constitution states that 'the water of every natural stream...within the state of Colorado, is hereby declared to be the property of the public...subject to appropriation.' Despite this provision, the public interest is not considered during water adjudication proceedings.

If enacted, Initiative #63 would help ensure the protection of the sustainable conditions of a healthy environment by encouraging more litigation, causing expense and delays that could derail projects regardless of whether a lawsuit has merit. It would also provide incentives for increased regulation of new development, at both the local and state levels.

Initiative #63's assertion of a Constitutional 'right to a healthy environment' without a companion Public Trust Doctrine is unusual, and may be unique.

The initiative's language describes a 'healthy environment' as 'including healthy air, water, land, and ecological systems.' This suggests that it is only a partial list. In addition, if the protection of a healthy environment must be the 'highest priority' of state and local governments and their agencies, then more stringent state and local environmental regulation for the protection of anything that could be considered a part of the 'environment' is likely. For the water community, this could mean increased water regulation and greater restriction of industrial development and water use.

initiative #63:​right to a healthy environment