Above photo: Lihn Do/Flickr.
A new wave of state legislators are pursuing the constitutional right to a safe environment.
Attorneys say could strengthen climate lawsuits and policy if interpreted correctly. But the effectiveness of those amendments hinges on their legal language and other details.
A new wave of state legislators are pursuing the constitutional right to a safe environment, which attorneys say could strengthen climate lawsuits and policy if interpreted correctly. But the effectiveness of those amendments hinges on their legal language and other details.
Nine states so far have proposed legislation that would let voters decide in November whether they want the right to a clean, safe environment spelled out in state constitutions.
Washington state, New Jersey, and Hawaii are the farthest along, with committee hearings either recently held or scheduled for the coming weeks.
Green amendments have been around in a couple of states since the 1970s, but they got a boost last year when a Montana judge ruled that state energy project permitting laws violated plaintiffs’ constitutional rights to a healthy environment. The decision marked a win for youth activists and galvanized residents in other states who were already pushing for explicitly stated climate rights.
“The level of interest surges and grows” every time we have a victory, said Maya K. van Rossum, who founded the nonprofit Green Amendments for the Generations and is credited with starting the country’s green amendment movement.
Right now, only Montana, Pennsylvania, and New York have green amendments as van Rossum defines them—to qualify as a true green amendment in her eyes, it must be enshrined in a state’s bill of rights. But environmental rights located farther down in other states’ constitutions still fuel cases, said Katrina Fischer Kuh, a law professor at Pace University.
Legal outcomes of cases invoking green amendment protections have been mixed, and lawsuits rarely cite the amendments as the sole cause of action, Kuh said.
Still, passing green amendments could prove valuable for states that want to address gaps in environmental statutes and regulations, Kuh said. Having a green amendment could also keep issues out of court in the first place by giving residents concrete text to point to when opposing projects.
“Even when a green amendment may not be doing all the legal work, the fact that it exists is very important,” Kuh said.
States Going Green
Van Rossum says she expects three to five new states to adopt green amendments in the next few years. As for how many will adopt in 2024, “you just really don’t know,” she said.
State legislators from California, New Jersey, Washington, New Mexico, Vermont, Hawaii, West Virginia, Kentucky, Iowa, and Texas are backing constitutional environmental protections this session.
Hawaii state Rep. Mahina Poepoe (D) says her proposed green amendment reinforces the tie between Hawaiian culture and the environment.
“This amendment would ensure that the natural resources we depend on for cultural continuity are secured,” she said in a statement. “Clean air, pure water, healthy oceans and ecosystems, and a stable climate are basic necessities for sustaining life on Earth. Why should this not be guaranteed?”
Since some state legislative sessions haven’t yet begun, that bill count could grow, while other states may see resident ballot initiative petitions start to circulate. Contenders for both include Michigan, Connecticut, Florida, and Oregon, van Rossum said.
Interest in green amendments was strong last year, but 2024 has seen several new states—and many multi-time candidates—fall into the mix, van Rossum said.
California is one of the newcomers. The legislation’s sponsor, Assemblymember Isaac Bryan (D), says he has until June to get the bill out of both chambers.
“It’ll have a ripple effect, I think, across the country,” Bryan said. “There’s precedent, even in contemporary times, to make these rights, to spell them out clearly and plainly in state constitutions.”
On the East Coast, New Jersey advocates are celebrating that green amendment legislation has been promised a hearing for the first time since 2018. The news is largely due to the legislature’s new leadership, which has been more receptive to putting green amendments up for debate than past leadership, said David Pringle, a consultant and New Jersey green amendment advocate.
“We like our chances” this year, he said.
Getting It Right
Since there’s a limited sample size of green amendment litigation, the extent of “their legal impact remains unclear,” but they’re definitely a supplementary tool, said Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia Law School.
Writing the amendments correctly can influence their success. Factors include legal language, placement in the constitution, and more, said van Rossum, who is also a licensed attorney.
Being specific about individual rights can decrease the amount of time spent arguing in court about how far these amendments go and what they cover. In Held v. Montana, for instance, ample time was spent debating whether state environment protections also applied to climate, van Rossum said.
Courts, afraid of overstepping, tend to interpret specific language robustly and broad language less robustly when it comes to green amendments, Kuh said. However, broader language could help cover residents as new environmental issues pop up.
Legislators should consider including provisions explicitly stating that the amendments are self-executing, which means the legal language is enforceable regardless of what statutes say, Gerrard said.
In some states, placing a green amendment in the Bill of Rights automatically makes it self-executing, while in other states that matter is up for debate, van Rossum said.
Early court decisions heavily influence state green amendments’ success with the precedent they set, Kuh said. Interpreting and implementing the new provisions will take time.
“You have to understand as a state bar and a judiciary that there will be a period of figuring it out on the ground,” Kuh said.