Interview: The Movement Toward ‘Green Amendments’ in State Constitutions

Green Amendments For The Generations is a movement to promote state-by-state adoption of a “Green Amendment” in the Bill of Rights section of every state constitution — and eventually the U.S. Constitution — to gain enforceable environmental rights for all citizens. Maya van Rossum formed the group in 2013.

Currently three states have Green Amendments in their Bill of Rights, while some others have environmental provisions elsewhere in their constitutions. Montana recently drew national headlines after a judge ruled in August that a ban prohibiting state officials from considering climate change when issuing energy-related permits violated the environmental rights of 16 young plaintiffs under that state’s Green Amendment.

The first edition of van Rossum’s book, The Green Amendment, The People’s Fight for a Clean, Safe and Healthy Environment, came out in 2017; a second edition was published in 2022. Green Amendment For The Generations currently has a staff of four and a network of leaders and volunteers in various states. 

The following interview with van Rossum has been edited for length and clarity.

Rex Bossert: What was the impetus for forming Green Amendments For The Generations? 

Maya van Rossum: The Green Amendment movement was inspired by a 2013 legal victory by my organization, the Delaware Riverkeeper Network. Using a long-ignored environmental rights amendment in the Pennsylvania Constitution, we defeated an industry-written, pro-fracking law. While the legal victory did not end all fracking in the state, it prevented uncontrolled expansion of fracking and laid a foundation allowing for increasing environmental protections related to fracking, and beyond. 

Recognizing the transformative power of the victory — we defeated a law! — I identified all the elements that gave Pennsylvania’s language so much strength. In examining every state constitution across the nation, I found that only Montana had an amendment that gave similar strength and power to environmental rights. I decided that we needed similar environmental rights in every state, and ultimately at the federal level. So I wrote my book The Green Amendment and launched the Green Amendments For The Generations organization and movement.

Currently, Green Amendments exist in three states. Pennsylvania and Montana both adopted their amendments in the 1970s. New York voted to add a Green Amendment to its constitution in 2021 as a direct result of our movement. Green Amendment language has been proposed and/or grassroots activism is advancing in at least 15 additional states.

Bossert: What is the effect of enshrining environmental rights in state constitutions? 

van Rossum: With Green Amendments, we transform the existing U.S. environmental paradigm. Under the status quo, environmental laws legalize and legitimize environmental pollution, degradation, and inequity. With the passage of Green Amendments, we transform this system to one focused on equitable protection and prevention of harm.

Green Amendments create an enforceable constitutional right of all people, including future generations, to clean water and air, a safe climate, and healthy environments. These provisions often include language requiring government officials to protect the state’s natural resources. 

Green Amendments require our government to prioritize environmental rights and natural resources protection in all decision-making, and to focus first on prevention of pollution and environmental degradation. With Green Amendments in place, government officials must consider the ramifications of their decisions before taking action, and they must weigh cumulative impacts as well as applicable science. 

Bossert: Does the same language work more or less for all states or does it need to be tailored?

van Rossum: While I have model language to help guide development of a state’s Green Amendment, it is important that the language suits the unique qualities of its state. As long as the essential Green Amendment criteria are achieved, there is a lot of flexibility in how an amendment is written. I created a step-by-step guide, but my hope is that communities will reach out so I can work with them in the drafting process. The guide is available at the resources tab of our website. 

Bossert: How have lawsuits brought under state Green Amendments been faring? 

van Rossum: In addition to the Montana suit — the first climate-related constitutional lawsuit to go to trial — there have been many instances of reliance on Green Amendments by residents, municipal governments, government agencies, state legislatures, state attorneys general, and governors to put in place critical protections. 

For example, Marple Township Supervisors relied on the Pennsylvania Green Amendment to reject a development project that would have destroyed the town’s last remaining piece of green space that is home to an old growth beach tree forest. Also in Pennsylvania, the Delaware Riverkeeper Network relied on the Green Amendment to challenge the state Department of Environmental Protection’s failure to secure cleanup of a toxic site. As that case was proceeding through the courts and the plaintiffs were demonstrating the likelihood of legal success, the state relented and began the process to ensure the legally responsible corporations would clean up the site. 

Meanwhile, in Montana, there were two separate cases that involved industrial gold mining operations that would have impacted ecologically important rivers and wildlife areas. Concerned residents challenged the permits that allowed the damaging drilling to advance and successfully secured court decisions that voided the permits. Neither the state nor affected companies appealed and as a result the drilling operations have not advanced.

Every Green Amendment case is different. There is no typical case or typical outcome. But not a single one has been dismissed as frivolous based on the constitutional claims, regardless of whether or not the plaintiff won in the end.

Bossert: Are state courts forging their own interpretations or are they looking to other state rulings? 

van Rossum: The court decisions are remarkably consistent in how they are interpreting and applying Green Amendment rights. In large part, that consistency comes from the Bill of Rights placement of the amendments, which brings clear guidance on how environmental rights should be interpreted and applied. The strength and clarity of the decisions also come from the plain and clear language of the amendments themselves. And the Pennsylvania amendment creates a clear trustee obligation to protect natural resources for present and future generations, which brings into effect a well-developed body of law regarding the obligations of trustees and the rights of beneficiaries to a trust. 

Every time a precedent is established, it helps inform how these amendments are and will be interpreted in other Green Amendment states. And every case is adding to our understanding of what it means to have a constitutional right to a clean, safe, and healthy environment. 

Anyone interested in joining or supporting the movement can find more information at our website.

Rex Bossert, former editor in chief of the National Law Journal, is a freelance writer.