landscape and smokestacks

The Greening of State Constitutions

Courts play an increasingly important role in enforcing states’ environmental rights amendments.

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In June, a landmark civil trial about the damage from climate change will test the meaning of the Montana Constitution’s right to a “clean and healthful environment.” It’s America’s first such trial under a state constitution, and it likely won’t be the last.

The plaintiffs, 16 young Montanans, are challenging the state’s statutory ban on considering climate change in environmental impact assessments. They brought Held v. Montana in state court because federal courts have rejectedsimilar claims under the U.S. Constitution, which does not explicitly address the environment. Like Montana, though, a growing number of states are considering or have already adopted constitutional amendments that support a cause of action to address environmental rights.

The first environmental rights amendments were added to state constitutions in the 1970s, coinciding with the rise of the environmental movement. Illinois’s amendment provides that “each person has a right to a healthful environment,” enforceable against the government or private individuals as provided by the state’s general assembly.

Pennsylvania’s amendment expands on these environmental rights. It says, “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.”

Similarly, Montana’s amendment recognizes the interests of future generations in a “clean and healthful environment” while also indicating that environmental obligations extend to private individuals as well as the state. Hawaii’s amendment likewise provides 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.” Hawaii’s amendment was recently applied by the state supreme court as a basis for upholding a state agency’s decision denying regulatory approval to an application for a biomass power plant.

Some environmental amendments adopted during this time have not generated enforceable individual rights. For example, Massachusetts’s amendment includes freedom from “excessive and unnecessary noise,” rights to “clean air and water,” and more general environmental rights, but no court has yet recognized a private cause of action against the state under the amendment. Rhode Island’s 1986 amendment stresses shoreline access as well as more general environmental obligations of the state, but without the language of individual rights.

However, advocates and courts are gradually expanding justiciable environmental rights by specifically focusing on environmental amendments that are situated in state constitutions’ bill of rights — provisions known as “Green Amendments.” In Pennsylvania, for example, a series of state supreme court cases in 2013, 2017, and 2021 overturned narrow court interpretations of the state’s Green Amendment to impose robust requirements on government to honor the public trust and to confirm that individuals can sue directly under the amendment. The public trust doctrine holds that certain natural resources must be available to and preserved for the benefit of the public, rather than for private uses. As a result of these decisions, the proceeds of state leases allowing private companies to extract natural resources from public land must be allocated to restoring the environment rather than added to the state’s general fund.

Initial cases under Montana’s Green Amendment were also restrictive, but in 1999, the state’s supreme court permitted an environmental group to sue a private mining company for contaminating groundwater with arsenic. Not only did the court find that the environmental activists had standing, but it concluded that the standing could be based on the mere anticipation of harm. This set the stage for the upcoming trial in Held v. Montana. As one of the first environmental rights cases in the nation to go to trial, Held will provide an opportunity to fully explore the current and future impacts of climate change on youth. And because similar cases are pending around the United States and worldwide, the trial will also serve as a model for establishing government accountability for harmful climate policies.

Most recently, New York’s 2021 Green Amendment passed its first test in litigation in the state’s lower courts. In Fresh Air for the East Side v. New York, a community group relied on New York’s amendment to challenge the placement of a landfill emitting noxious gases. The court held that the private landfill operator could not be sued under the amendment, but it allowed the case to proceed against the state and opined that the court would have enforcement power should a violation be found.

A second case brought by the same community group was filed against the town of Perinton, New York, for issuing the permit for the landfill. Again, the court permitted the action to proceed and ruled that government action must not violate a person’s constitutional “right to clean air and water, and a healthful environment.” Both of these early New York cases are on appeal, with more Green Amendment cases pending before lower courts.

There is still much to be worked out as Green Amendments are considered by courts, including the meanings of basic terms like “clean” and “healthful.” Beyond looking to peer states, state courts may find guidance by looking internationally. The United Nations General Assembly recently endorsed the human right to a healthy environment, and international human rights bodies are in the process of resolving many of the same definitional challenges. Meanwhile, a nationwide movement of activists is working to increase the number of state constitutions that protect the environment through Green Amendments, with campaigns in New Mexico, Kentucky, Connecticut, and several other states.

The U.S. Constitution, however, will likely be of little assistance. While there is something to be said for stability, the difficulty of amending the federal Constitution and the current Supreme Court’s use of history to limit rights can leave it unable to speak to contemporary challenges like environmental crises. By expanding the justiciability of environmental rights, states’ Green Amendments are starting to fill that gap.

Martha F. Davis is a university distinguished professor at Northeastern University School of Law. 

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A project of the Brennan Center for Justice at NYU Law