Advocates Nationwide Push for State-Level Green Constitutional Amendments
Efforts seek to enshrine the rights to clean air, clean water, and a healthy environment
March 28, 2024
Across the United States—from California to Florida, Hawai'i to Maine—efforts are underway to amend state constitutions so that they will guarantee the human right to a clean and healthy environment. Led by grassroots environmentalists and supported by allied state lawmakers, the concerted push aims to guarantee life-sustaining essentials like clean air and water as fundamental rights. Ambitious? Definitely. Pie in the sky? Not at all. A recently enacted right to a healthy environment amendment in New York and a court victory in Montana demonstrate that such big reforms are possible—and can have real teeth.
So-called green amendments establish a state-constitution recognition of the right to a clean and healthful environment, placing this right on par with other rights such as the right to free speech, due process, and freedom of religion. Green Amendments for the Generations, a movement founded by environmental advocate and attorney Maya van Rossum, defines these amendments as “provisions added to the bill of rights section of a 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.”
Six states have explicit environmental-rights provisions somewhere in their constitutions: Hawaii, Illinois, Massachusetts, Montana, Pennsylvania, and Rhode Island. Many of those environmental rights were enacted during the 1970s; more recently, New York adopted its version of a green amendment in 2021.
“This is not about politics. This is really about people,” van Rossum told Sierra. “The green amendment concept really does cross party lines.”
Van Rossum launched the national movement following a landmark 2013 legal victory that utilized Pennsylvania’s green amendment to defeat a pro-fracking law passed by the state legislature. Van Rossum decided to focus on advancing the concept at the state level first, with a goal of eventually working toward securing the right to a clean and healthy environment at the federal level. (The late US representative Donald McEachin had proposed an amendment to the US constitution “respecting the right to clean air and pure water,” but the effort failed to generate much traction.) “This state-by-state approach is actually also part of the federal amendment strategy,” she said.
Pursuing a constitutional environmental-rights amendment is a yearslong process that involves a huge amount of grassroots advocacy, outreach, and education. And independent legal observers caution that even if an amendment is adopted, it generally takes litigation to ensure it is implemented or enforced.
“Green amendments can fulfill their potential only if the courts find that they go beyond existing environmental laws and create new enforceable rights and obligations,” said Michael Gerrard, founder and faculty director of the Sabin Center for Climate Change Law at Columbia Law School.
The current system of environmental protection “fundamentally fails us”
The existing shortcomings of the environmental regulatory system are what make the green amendment endeavor so important, van Rossum argues. Rather than trying to prevent environmental harm, she said, the current regulatory system merely attempts to manage harm.
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“Our current system of environmental protection laws fundamentally fails us,” van Rossum told Sierra. “The law is written in favor of the industry and the regulators and politicians, and the people get sacrificed.”
Establishing the right to clean air, clean water, and a healthy environment through constitutional provisions challenges this conventional dynamic. It “really flips the script, because the constitution tells the government what it can and cannot do,” Kacy Manahan, a senior attorney with the Delaware Riverkeeper Network, explained during a webinar last fall on the topic of green amendments.
“Green amendments bring forth that transformational change to our systems of law and governance when it comes to environmental protection,” van Rossum said during the webinar.
This systemic shift, she told Sierra, is critical. “We need to reorient this system so it really is a system where it’s focused on prevention of harm.”
States with active green amendment initiatives or proposals include Arizona, California, Connecticut, Delaware, Florida, Hawai'i, Iowa, Maine, New Jersey, New Mexico, Texas, Vermont, Washington, and West Virginia. Van Rossum said there is active community engagement underway in Colorado and green amendment proposals anticipated in Oregon, Michigan, Wyoming, and Illinois. Last year, legislators in Nevada and Tennessee introduced green amendments, but they are not currently pending.
In most states, green amendment proposals are first proposed through the legislature; if approved by state lawmakers, they would then be put before the state’s voters as a ballot referendum. Florida is taking a different approach, with its version of a green amendment proposal proceeding through a citizen ballot initiative. Florida’s initiative, titled “Right to Clean and Healthy Waters,” limits the scope of environmental rights to the state’s waters, since Florida law requires that only a single subject can be put before the voters. The state’s citizen-led campaign fell short of the signatures needed to get the proposed amendment on the 2024 ballot. Organizers are now gearing up to try again in 2026.
In Hawai'i, a green amendment proposal passed the state Senate in 2021, but not the House. Senator Mike Gabbard reintroduced the legislation in this 2024 session. The bill has already passed the Senate Committee on Agriculture and Environment, and it goes next to the Senate Judiciary Committee. Hawai'i’s green amendment would recognize the “inherent and inalienable rights of the people, including present and future generations, to clean water and air, a healthful environment and climate, healthy native ecosystems and beaches.”
Maine’s version, called the “Pine Tree Amendment,” saw some momentum in 2022 as it garnered support from a majority of legislators in the House. State Representative Margaret O’Neil reproposed the legislation in 2023, which was referred to the Environment and Natural Resources Committee and carried over to the 2024 session. It is currently marked as “unfinished business,” and van Rossum said it will need to be reproposed next year. Maine state senator Richard Bennett, a Republican, is a cosponsor of the proposed amendment.
Meanwhile, in California, Assemblymember Isaac Bryan introduced a green amendment for the first time this session. The proposed constitutional amendment declares: “The people shall have a right to clean air and water and a healthy environment.” Bryan said he has nearly two dozen cosponsors already backing the proposal, either listed in writing or verbally committed. “There’s a great potential to get this out of the House by June and onto the November ballot,” he told Sierra. “We’re certainly going to try to do everything we can to make that happen.”
“There will be backlash”
Even as they inch forward, the efforts to secure state-level constitutional rights to a clean and healthy environment face significant challenges. Misinformation and scare tactics from critics abound. The oil and gas industry tends to be the most vocally opposed, van Rossum said, though polluting industries generally try to attack green amendment proposals through closed-door lobbying.
Aside from calculated disinformation and industry opposition, green amendment proponents also have to address genuine concerns from other stakeholders. “There’s more work to be done as well in convincing legislators and others that the recognition will make a difference,” said James May, a distinguished professor of law and founder of the Global Environmental Rights Institute at Widener University Delaware Law School.
Even if green amendments are successfully adopted, they can still face headwinds. “These provisions can only do so much,” May said. While they can be “terrific tools to advance environmental protections,” he noted that rights provisions broadly tend to be “really hard to enforce.” Furthermore, the recognition of new rights may trigger retaliation from opponents. “There will be backlash,” May said.
In Utah, for example, state lawmakers are pushing back against a grassroots environmentalists’ campaign seeking to legally recognize the dwindling Great Salt Lake as a rights-bearing entity; opponents of the idea are advancing legislation that would prohibit such recognition. In Florida, voters in Orange County in 2020 overwhelmingly voted in favor of a charter amendment establishing the rights of nature and the right to clean water in the jurisdiction. In 2022, a judge invalidated the Orange County charter amendment. Florida Rights of Nature Network, a citizen environmental advocacy group, is now taking up the citizens’ initiative to try to amend the state constitution.
“Awakenings” in New York and Montana
Despite such pushback, recent history has proved that securing environmental rights through state constitutional amendments can work. Look no further than New York. Following legislative approval, New York’s green amendment was put before the state’s voters in November 2021. More than 70 percent voted in favor, and the amendment officially took effect in January 2022.
The amendment, which declares that each person has the “right to clean air and water, and a healthful environment,” is already facing tests in the courts. The first court decisions addressing claims brought under the green amendment came in December 2022 in a pair of lawsuits challenging the operation of the High Acres Landfill located in western upstate New York. In these decisions, currently under appeal, the court allowed green amendment claims against the state and the New York Department of Environmental Conservation to proceed. “If they are upheld, they will show that this amendment is extremely consequential,” Gerrard told Sierra.
For van Rossum, New York’s adoption of its green amendment offered confirmation that her organization’s strategy can be successful.
“There’s been a real awakening in the last couple of years, and one of the reasons for that awakening was the passage of the New York green amendment,” she said. “When it was passed, people were able to see that this was something new, this was something different. This is a concept that can work in the modern era. People will come out in support of a constitutional amendment around environmental rights. And I think up until the New York passage, there was a lot of skepticism about it.”
Van Rossum pointed to a recent court decision in Montana—which also has a constitutional guarantee to a clean and healthful environment—as “another powerful awakening for people.” Last August, Montana District Court Judge Kathy Seeley issued a landmark ruling in favor of 16 young people who had sued their state government over its fossil fuel policies. The case, Held et al. v. State of Montana, was brought on constitutional grounds, alleging the state had violated plaintiffs’ right to a clean and healthful environment. It was the first youth climate lawsuit to go to trial in the United States. In her decision, Seeley determined the state’s fossil fuel and climate policy was unconstitutional, and she affirmed that the youth plaintiffs “have a fundamental constitutional right to a clean and healthful environment, which includes climate as part of the environmental life-support system.” The state is currently appealing the verdict.
“For those states where there’s already green amendment language that’s been advanced, [the Held decision] was really inspiring and exciting,” van Rossum said. It has also sparked new interest from other states and has helped bring more people into the green amendment movement.
Assembly member Bryan, who is spearheading California’s green amendment proposal, pointed to New York as leading by example and said he is hopeful that California can replicate that success. “If California were to do this it would mean that one in eight Americans has a constitutional right to clean air, clean water, and a healthy environment, and I think that would have a ripple effect across the country,” Bryan said.
“The fact that there’s so much momentum across the country is a reflection of how badly people want to ensure that the basic rights to clean air, clean water, and a healthy environment are enshrined in permanency in state constitutions,” he added. “Statutes can be rolled back with changes in leadership including at the federal government. But once you’ve made something part of your state constitution, there’s a guide point for all else to follow. I’m optimistic. I’m excited, and we’re going to do all the fighting we can.”