Fundamental Environmental Rights: State Constitutions as a Vehicle of Change
A 2019 United Nations (UN) report found that “it is imperative that environmental laws are widely understood, respected, and enforced and the benefits of environmental protection are enjoyed by people and the planet.” Globally, more and more governments are coming to this realization: that there are vital (and fragile) links between the environment and all aspects of modern society; from economic growth to public health, social cohesion, and national security. Further, many governments are making the connection between human rights and the environment: environmental rights. According to the UN, environmental rights means “any proclamation of a human right to environmental conditions of a specified quality.” Over 100 countries around the world have enshrined the human right to a healthy environment in their constitutions. The United States is not one of them.
Despite the lack of a federal proclamation, there is a growing movement to amend state constitutions to include language that permanently enshrines environmental protections as fundamental rights. The strategy of using state laws and constitutions to expand rights—even acting as an independent source of fundamental rights—is not new. Following the “legal revolution” of the 1960s, US Supreme Court Justice William Brennan penned an influential article expressing concern on an over-reliance on the federal constitution as a means of realizing constitutional human rights problems:
The legal revolution which has brought federal law to the fore must not be allowed to inhibit the independent protective force of state law—for without it, the full realization of our liberties cannot be guaranteed.
US State Constitutions and the Environment
Several states have provisions in their constitutions that mention the environment and (loosely) define the role of the state government in protecting the state’s natural resources and the health of its residents. One state is particularly unique in that it dedicates an entire article of its constitution to natural resources. Article VIII, section 2 of the Alaska State Constitution declares that “[t]he legislature shall provide for the utilization, development, and conservation of all natural resources belonging to the State, including land and waters, for the maximum benefit of its people.” As such, the state’s natural resources are held in trust by the government for the people.
The idea that governments should hold certain natural resources in trust for public use dates to ancient times. One early example comes from Byzantine Emperor Justinian, who recognized “public values in water” and ordered that the sea, the seashores, running water, and the air were common to everyone. Today, the notion that common resources should be held in trust for the public—dubbed the public trust doctrine—is most often applied to shorelines between low and high tides. Importantly, whether a certain resource falls under the protection of public trust involves a state-by-state analysis.
In the late 20th century, the public trust doctrine gave rise to a developing area of environmental law called “atmospheric trust litigation.” Championed by Professor Mary Christina Wood, this innovative legal theory attempts to force governments to control climate change-contributing greenhouse gas (GHG) emissions into the atmosphere. In perhaps the most famous example of atmospheric trust litigation, Juliana v. United States, a coalition of youth plaintiffs brought a lawsuit arguing that the US Constitution guarantees an unenumerated fundamental right to a “stable climate system.” The deciding court recognized the evidence regarding the plaintiffs’ injuries from climate change but “reluctantly concluded” that the requested remedies were best addressed by the political branches of government: the executive and legislative branches, not the judiciary.
Since the 1970s, political branches in five states—Pennsylvania, Montana, Illinois, Massachusetts, and Hawaii—have enacted constitutionally based environmental rights provisions, including the right to a “clean and healthful environment.” Pennsylvania was first in 1971, followed by Montana in 1972. The Rhode Island Constitution also includes specific environmental protections in its 1987 bill of rights; however, those protections only extend to fishery rights and shore privileges, and therefore the state is not generally regarded as having a green amendment.
Proposing Constitutional Amendments
There are four primary methods of passing proposing constitutional amendments for ratification. Many state constitutions allow for multiple methods. However, two have been successful means of proposing and passing green amendments:
- Through legislatively referred constitutional amendments;
- Through citizen-initiated constitutional amendments;
- Through constitutional conventions; and
- Through commission-referred constitutional amendment.
Furthermore, every state except Delaware requires voters to ratify proposed constitutional amendments.
The first method requires that state legislatures pass a proposed amendment before it appears on the statewide ballot for voter ratification. Across the 49 states where state constitutions can be changed via legislatively referred amendment, there are variations in rules and processes. In Pennsylvania, for example, the constitution requires a two-thirds majority vote in two successive sessions of the Pennsylvania General Assembly to refer a proposed amendment to the ballot. Pennsylvania’s green amendment (officially referred to as the Environmental Right Amendment) was originally introduced as House Bill 958 by Representative Franklin Kury. The bill unanimously passed during both the 1969-1970 and 1970-1971 sessions of the state legislature. After passing the second time, the bill became a resolution added to the state’s 1971 general ballot. The amendment was ratified by voters by a margin of four to one.
The second-most successful method for inserting environmental rights into state constitutions is via constitutional convention. 42 states have laws allowing for constitutional conventions, though they vary with respect to when such a convention may be called. Some states (e.g., Alaska, New Hampshire, and Hawaii) automatically place the question of a convention on the ballot every 10 years (or in some cases, 20 years, like Connecticut, New York, and Illinois). In others, such as Alabama, Arizona, and Oregon, state legislatures decide whether to put the question forth. In a few states, legislatures can call conventions without first asking for approval from voters. Montana’s green amendment was decided through a constitutional convention of 100 delegates in 1972.
Currently, efforts are being made in eleven different states to amend state constitutions to recognize environmental rights, including Washington, New Jersey, New Mexico, Maryland, Oregon, and Vermont. These environmental rights would be equal to all other constitutional rights, such as free speech and equal protection. One leading environmental rights nonprofit defines green amendments as “self-executing provisions added to the bill of rights section [of a state constitution] that recognize and protect the rights of all people, including future generations, to pure water, clean air, a stable climate, and a healthy environment.” In drafting the amendment, states may also choose to secure other environmental rights (e.g., cultural, esthetic, scenic values, or healthy biodiversity and habitats). Notably, this language would also generally give residents, and possibly organizations, standing in court to challenge activities with potential negative environmental impact before they occur.
Of these states, New York is furthest along in the process. On November 2, 2021, New Yorkers will have the chance to vote on their very own environmental rights amendment. The legislation—originally introduced in 2017—passed in the legislature in April 2019. If ratified by voters, New York Proposal 2 would establish the right of each person to “clean water, clean air, and a healthful environment” in Article I of the New York Constitution.
Opposition to Green Amendments
In New York, some have concerns over the simplicity and vague language of the proposed amendment. They cite questions of legal uncertainty and the amendment’s legal implications on private industry. In 2019, the city of Utica, New York went as far as to unequivocally oppose the amendment due to perceived increased threats of litigation in face of the “voluminous existing environmental laws and regulations that are presently in place to protect the rights of people and businesses.”
Thus, significant opposition to constitutionally guaranteed environmental rights will likely come from those who believe that increased judicial participation in contentious climate change disputes may unduly encroach on the legislature’s core role to make science and policy-based decisions. Opponents argue that constitutionally protected environmental rights may inappropriately empower courts to make decisions about appropriate levels of pollution and other forms of environmental/climate degradation.
If New Yorkers pass the amendment, courts will undoubtedly see more environmental and climate change-related litigation. It will take time for the state to determine how to best operationalize New Yorkers’ newfound fundamental right to a healthful environment. However, a task force assembled by the New York State Bar Association to study the legal implications of a green amendment in the state concluded that “states that recognize a robust, self-executing environmental right have not experienced a radical or undesirable shift of environmental policymaking authority to the judiciary.”
In conclusion, legally enforceable, constitutional environmental rights are possible. Governments around the world are increasingly recognizing such rights and elevating them next to other fundamental rights in their constitutions. Despite a lack of environmental rights protection at the federal level, several US states are leading the charge to ensure environmental rights through state constitutional amendments. In the face of recalcitrant courts and conservative modes of constitutional interpretation, self-executing environmental amendments are a new and promising path for ensuring fundamental environmental rights in the US.
Kirsten Williams, student at Vermont Law School, discusses the paths to enshrining environmental rights as fundamental rights in various states… A 2019 United Nations (UN) report found that “it is imperative that environmental laws are widely understood, respected, and enforced and the benefits of environmental protection are enjoyed by people and the planet.” Globally, more…