Blog by: Thomas Fricker
The United States Constitution and state constitutions both provide rights to individuals, regarding the rights to life, liberty, and the pursuit of happiness.[i] Recently, the 1971 movement encouraging state legislatures to adopt a new type of right—the right to a clean environment—has gained traction once more.[ii] So-called ‘Green Amendments’ are “self-executing provisions [that are] added to the bill of rights of a state constitution.”[iii] Self-executing means that no additional laws are required for the statute to take effect.[iv] The goal of Green Amendments is to create constitutional protections that recognize the protection, improvement, and preservation of a healthy environment.[v]
Montana, Pennsylvania, and New York are the only states in the United States to have established Green Amendments in their state constitutions.[vi] Montana and New York first enacted their Green Amendments in the 1970’s, while more recently Pennsylvania adopted a Green Amendment in 2021.[vii] Proponents of Green Amendments argue that codifying such language in their state constitutions can insulate the environment from industrial interests and future deregulation that can compromise an individual’s right to clean air and water.[viii]
For a Green Amendment to be truly “green,” the amendment must meet certain requirements, such as being placed in the state constitution’s bill of rights, to ensure they provide the highest level of protection, and they must also be self-executing.[ix] Other requirements mandate that the amendment must include language specifying that “the rights enumerated are reserved rights that are inherent and indefeasible and belong to the people.”[x] Wording in the provision should also include environmental values that must be protected, like water, air, habitats, and a stable climate.[xi] This language ensures that the right to a healthy environment is parallel to other fundamental rights found in a bill of rights.[xii]
States such as Hawaii, Rhode Island, Illinois, and Massachusetts have constitutional protections for the right to a healthy environment, however, the language used is not included in their bills of rights, which hinders the level of protection available to citizens.[xiii] Other states, like Florida, have introduced Green Amendments limited to only clean and healthy waters.[xiv] Delaware’s legislature introduced a Green Amendment, but it was tabled in 2022 when action on the bill was postponed indefinitely.[xv] Green Amendment legislation is currently happening in Arizona, California, Connecticut, Iowa, Kentucky, Maine, Maryland, Nevada, New Mexico, Tennessee, Texas, Vermont, Washington, and West Virginia.[xvi]
As the pressure to include these amendments have accelerated, so too has push back with their opponents. In New Jersey, an attempt has been made to establish a legal right for every person to have a clean environment, however, the New Jersey Business & Industry Association (“NJBIA”) has opposed such legislation.[xvii] The NJBIA argues that such an addition to the state’s constitution will lead to an increase in litigation and create uncertainty regarding financing for public infrastructure and private development projects.[xviii] The NJBIA further asserts that the Green Amendment would take policymaking powers away from the legislature and give them to the courts, by allowing plaintiffs to exercise their rights in private causes of action rather than engaging in the legislative process, which requires debate and compromise. For the NJBIA, this effectively circumvents the legislative process, and the executive branches.[xix]
Codifying the right to a healthy environment may need to be a necessity not only for the current generation, but for future ones as well. This type of protection will strengthen individual rights from state infringement of the nature around us. A Green Amendment will ensure equitable protection to all people while obligating the state governments to protect environmental rights and natural resources. The addition of a right to clean air, pure water and a well-protected environment should be proposed in every state legislature to ensure this right becomes and remains an inherent right for all citizens.
[i] Constitution of the United States, United States Senate, https://www.senate.gov/about/origins-foundations/senate-and-constitution/constitution.htm (last visited Nov. 9, 2024), [https://perma.cc/FQ99-4ULA].
[ii] NCEL Fact Sheet Green Amendment, NCEL, (2021) https://www.ncelenviro.org/app/uploads/2021/10/Green-Amendment-Fact-Sheet.pdf [https://perma.cc/L6J5-5RYW].
[iii] Id.
[iv] Scott Fein and Tyler Otterbein, New York’s New Constitutional Environmental Bill of Rights: Impact and Implications, Albany law (2021), https://www.albanylaw.edu/government-law-center/new-yorks-new-constitutional-environmental-bill-rights-impact-and#_ftn6 (last visited Jan 26, 2025). https://perma.cc/JCJ7-DEUK.
[v] Id.
[vi] "Green Amendments" and the Right to a Healthy Environment, Earth Law Center (Feb. 12, 2024),
https://www.earthlawcenter.org/blog-entries/2024/2/green-amendments-and-the-right-to-a-healthy-environment#:~:text=How%20Is%20the%20Right%20to,York%2C%20newly%20established%20in%202021. [https://perma.cc/74WN-75RB].
[vii] Id.
[viii] Elbein, supra note 4.
[ix] Dharna Noor, Green amendments’: advocates push for constitutional guarantees in face of climate crisis, The Guardian (July 3, 2023), https://www.theguardian.com/us-news/2023/jul/03/montana-climate-trial-green-amendments-state-constitutions [https://perma.cc/UAN5-V7X7].
[x] "Green Amendments" and the Right to a Healthy Environment, Earth Law Center (Feb. 12, 2024),
https://www.earthlawcenter.org/blog-entries/2024/2/green-amendments-and-the-right-to-a-healthy-environment#:~:text=How%20Is%20the%20Right%20to,York%2C%20newly%20established%20in%202021. [https://perma.cc/74WN-75RB].
[xi] Id.
[xii] Id.
[xiii] Id.
[xiv] Id.
[xv] "Green Amendments" and the Right to a Healthy Environment, Earth Law Center (Feb. 12, 2024),
https://www.earthlawcenter.org/blog-entries/2024/2/green-amendments-and-the-right-to-a-healthy-environment#:~:text=How%20Is%20the%20Right%20to,York%2C%20newly%20established%20in%202021. [https://perma.cc/74WN-75RB].
[xvi] Id.
[xvii] NJBIA Explains Opposition to ‘Green Amendment’, NJBIA (Mar. 7, 2024), https://njbia.org/njbia-explains-opposition-to-green-amendment/ [https://perma.cc/FV7C-MPYP].
[xviii] Id.
[xix] Id.