As the growing land stewardship movement has joined with rising evangelical environmentalism, religious worship has intersected with ecological protection to spark the rise of a new variety of ecoworship. Given the U.S. Supreme Court’s recent willingness to expand constitu- tional protections for religious exercise and trim bulwarks against Establishment Clause challenges, religious claimants now have bolstered powers to assert exemptions from governmental mandates based on their free exercise of faith. The growing role of faith-based environmentalism and institutional religions in private environmental protection will likely lead to similar claims for religious exemptions for pro-environmental activism based on faith. Most legal scholarship so far has squarely focused on the general foundational question of how federal and state constitutional laws apply to protect religiously motivated actions both within and outside environmental law.
This Article takes a different tack. Federal environmental law is over- whelmingly statutory, and state environmental laws rely on a similar base. It is time to re-read these statutes through the newly expanded constitutional lens. This path yields two notable results. First, the increased accommodation for Free Exercise claims and revamped Establishment Clause parameters will inevitably shape the way that courts will interpret environmental statutes that impinge on religious activities. This interpretive tendency has a deep historical provenance in federal and state courts, although it is difficult to extract from the outsized historical shadow of Holy Trinity Church v. United States. Second, an altered interpretation of federal statutory terms through the new religious exercise lens could grant special status to proactive environmental initiatives impelled by religious beliefs, as essentially protected environmental worship. This reinterpreted statutory language could expand standing for certain claimants raising federal statutory claims, force the federal government to reassess the way it selects clean-up remedies or environmental permit limits in certain contexts, redefine the scope of environmental justice policies, and alter the degree of regulatory limitations on environmentally protective uses of land by religious actors.
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Copyright (c) 2023 Tracy Hester