Environmental justice and equity issues have taken center stage as part of the national conversation on the environment, climate change and racial equality. As we have explained, environmental justice will be a central focus of the Biden administration, as reflected in a recent Executive Order that declares federal agencies:
shall make achieving environmental justice part of their missions by developing programs, policies, and activities to address the disproportionately high and adverse human health, environmental, climate-related and other cumulative impacts on disadvantaged communities, as well as the accompanying economic challenges of such impacts.
We expect significant developments on environmental justice at the federal level, including in the context of permitting, rulemaking, enforcement, funding, and other actions. There will also be developments via state legislation that follows New Jersey’s first-of-its-kind environmental justice legislation enacted last year. On March 26, for example, Massachusetts enacted comprehensive climate change legislation, Senate Bill 9, which also expands the Massachusetts Environmental Policy Act to require environmental impact reports for all projects that impact air quality within one mile of newly defined environmental justice neighborhoods. Another example is California, where new legislation has been proposed to similarly incorporate environmental justice into state decision-making. States are also taking administrative actions to further environmental justice objectives (e.g., California’s proposed update to CalEnviroScreen). We also expect to see updates to corporate policies, including incorporating environmental justice-related concepts within environmental, social and corporate governance (ESG) and human rights policies.
A distinct, but interrelated development, are efforts to amend state constitutions to include provisions that enshrine environmental protections as fundamental rights. This “Green Amendment” movement seeks to elevate the right to clean air, water and a healthy environment to the same level as other constitutional rights (e.g., free speech, equal protection). Proponents of Green Amendments believe the provisions would be a tool for combating environmental racism and rebalancing inequities in communities of color and low-income communities.
This post surveys existing environmental-focused state constitutional provisions, proposals to expand environment rights in New York and other states, and the practical questions raised by the Green Amendment movement.
Many states have provisions in their constitutions that touch on the environment and the role of state government to protect public health and natural resources. Fewer states have constitutional provisions that focus on environmental rights of its citizens. The table below identifies the states and the associated constitutional provisions that are most often cited in the context of the Green Amendment movement.
Environmental Constitutional Provision
The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.
Pa. Const. Art. I § 27.
The state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations. The legislature shall provide for the administration and enforcement of this duty. The legislature shall provide adequate remedies for the protection of the environmental life support system from degradation and provide adequate remedies to prevent unreasonable depletion and degradation of natural resources.
Mont. Const. Art. IX § 1.
Each person has the right to a healthful environment. Each person may enforce this right against any party, governmental or private, through appropriate legal proceedings subject to reasonable limitation and regulation as the General Assembly may provide by law.
ILL. Const. Art. XI, § 2.
The people shall have the right to clean air and water, freedom from excessive and unnecessary noise, and the natural, scenic, historic, and esthetic qualities of their environment; and the protection of the people in their right to the conservation, development and utilization of the agricultural, mineral, forest, water, air and other natural resources is hereby declared to be a public purpose. The general court shall have the power to enact legislation necessary or expedient to protect such rights.
Mass. Const., Part the First, Art. XCVII.
Each person has the right to a clean and healthful environment, as defined by laws relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources. Any person may enforce this right against any party, public or private, through appropriate legal proceedings, subject to reasonable limitations and regulation as provided by law.
Haw. Const. Art. XI § 9.
Most of these state constitutional provisions were enacted in the 1970s during the height of the original environmental movement. However, these provisions are being dusted off and used in new ways. The highest profile example is in Pennsylvania, where the Supreme Court struck down legislation focused on oil and gas operations that it found to violate the state’s environment-focused constitutional provision. Penn. Envtl. Def. Found. v. Commonwealth, 161 A.3d 911, 939 (Pa. 2017). In Hawai’i, the Supreme Court held its environment-focused constitutional provision allows for private enforcement of environmental laws, absent legislative or regulatory limitations. County of Hawaii v. Ala Loop Homeowners, 235 P.3d 1103, 1120-34 (Haw. 2010), abrogated on other grounds by Tax Found. of Hawai’i v. State, 439 P.3d 127, 141 (Haw. 2019). In Montana, the Supreme Court held that the right to a clean and healthful environment is a fundamental right and “any statute or rule which implicates that right must be strictly scrutinized,” Mont. Envtl. Info. Ctr. v. Dep’t of Envtl. Quality, 988 P.2d 1236, 1246 (Mont. 1999) (emphasis omitted), and later held the right applies to private actions. Cape-France Enters. v. Estate of Peed, 29 P.3d 1011, 1017 (Mont. 2001).
Examining the provisions in the table above, some would likely argue that one or more are not self-executing, or are subject to restrictions by state legislatures or administrative agencies, and therefore do not truly establish fundamental rights. The Green Amendment movement emphasizes establishing a broader fundamental right, which is reflected in recent developments in New York.
In November 2021, New York voters will decide whether to add a new section to the New York Constitution guaranteeing a level of “environmental rights.” Specifically, the action would amend the State Constitution’s Bill of Rights (Section 19 to Article I) to ensure that: “[e]ach person shall have a right to clean air and water, and a healthful environment.”
The legislature’s justification for this amendment is that “[r]ecent water contamination and ongoing concerns about air quality have highlighted the importance of clean drinking water and air as well as the need for additional protections.” As an additional justification, it is noted that “[s]everal other states including Pennsylvania, Hawaii, Massachusetts and Montana have constitutional protections in place to ensure access to clean air and water. This proposed constitutional amendment would follow those models and ensure that clean air and water are treated as fundamental rights for New Yorkers.”
New York may be going first in the next phase of establishing environmental rights, but it is not alone. In Washington, there is a proposal to amend the state constitution to recognize the “right to a clean and healthy environment, including pure water, clean air, healthy ecosystems, and a stable climate, and to the preservation of the natural, cultural, scenic and healthful qualities of the environment.” Washington’s Green Amendment was modeled after the Pennsylvania Constitution, but note the explicit reference to climate. Efforts are being made in other states, including New Jersey, New Mexico, Maryland, Oregon, and Vermont, among others, and the expectation is similar efforts will be made in the future.
Each state constitution—and Green Amendment—will be different, and so it is difficult to clearly identify all of the potential practical implications. However, using New York as a representative example, there are clear questions in terms of what the Green Amendment would mean in the real world for the state, municipalities, companies, and others in New York. Assuming the proposal passes in November, below are some of the questions and considerations associated with New York’s proposal:
The voters in New York will have their say in November. If passed, there will likely be uncertainty and unanswered questions, ultimately leading to state courts deciding how to operationalize this new fundamental right in the real world. Beyond New York, the Green Amendment movement is here to stay, with efforts being made to spur additional states to take action. The focus on adding environmental rights to state constitutions should be viewed as a part of the larger national conversation on environmental and climate justice.
