National push for ‘green amendments’ puts states at forefront of climate fight

Life, liberty — and a clean environment?

A national coalition of environmental activists is trying to amend state constitutions to establish a guaranteed right to a safe climate or a clean environment — analogous to the right to freedom of religion or freedom of speech.

They argue that such language, which the constitutions of Pennsylvania, New York and Montana already sport, would give the environment a solid legal grounding against industrial interests amid the climate fight — and enable states to maintain meaningful protections even in the face of deregulation by a future conservative federal government.

This week, legislators in New Jersey, New Mexico and Hawaii will hold committee hearings on so-called green amendments — with states such as California and Connecticut waiting in the wings.

Bills have also been introduced to propose such amendments in Republican-led states including Iowa, West Virginia, Florida, Tennessee and Texas.

In New Jersey, campaigner David Pringle argued that an amendment to the state constitution would create a level of baseline protection higher than what federal law allows.

Pointing to New Jersey’s high cancer and asthma rates, Pringle said that the state’s existing protections “are clearly not enough. We can always do better laws, but the vast majority of the laws are very pollution control-oriented — chemicals and toxics are presumed innocent until proven guilty.”

A green amendment, he said, offers “a total mind shift from trying to control and make up for problems after the fact to preventing them in the first place.”

Maya K. van Rossum, who has led the nationwide campaign since 2013, argued that such amendments could also protect states from a future federal rollback of environmental protections. “Where the state has stepped in with higher protections, those will be protected from undermining at federal level,” she said.

While an “anti-environment administration” could still preempt state law if state constitutions had green amendments, taking such action would mean an exhausting game of whack-a-mole, she added. “They’d have to [preempt local laws] in context after context after context.”

The campaign faces steep headwinds. Green amendments have failed to advance in all of the states in which they are up for hearings now, and one such measure stalled last week in the Washington state Legislature, where it failed to make it out of committee — in large part due to conservatives worried it would lead to more solar farms in rural areas.

“In a lot of legislatures it takes years to pass,” said Nicole Olonovich, a campaigner with the effort in New Mexico, a fossil-fuel producing state where a 2023 attempt stalled in the face of opposition by Democratic committee chairs. 

“You don’t always get it on the first, second, or third try,” Olonovich said. “Sometimes it takes 10 years, especially when fighting industry with deep pockets.”

But activists can also point to a long-fought victory in New York, where after repeated failures the campaign won its first new green amendment since the 1970s, when nearly two-thirds of New York voters chose to add language ensuring “a right to clean air and water, and a healthful environment” to the state constitution in 2021. 

The New York law is “self-executing” — meaning no additional laws are needed for it to take effect — and implicitly bars the state from new legislation that interferes with citizens’ rights to such an environment.

It also provides a stronger foundation for potential legal challenges against past developments or legislation that plaintiffs argue would compromise their right to clean air or water.

A green amendment can help form the “spine” of a new legislative approach, Washington state Rep. Debra Lekanoff (D) told The Hill, establishing a legal test that future laws and future development must pass.

“It’s a stronger way of asking: What are we doing with all these environmental bills?” Lekanoff asked. “Why do I need to pass an environmental bill? I don’t have a constitutional right to cool and clean water. And there’s nothing that tells the state of Washington that you have to have cool, clean water.”

An amendment, Lekanoff said, would create a framework to ensure that “every environmental policy that you build Washington state, every regulation, everything you build across the state, every fiscal note you invest in Washington state is adequately providing the healthy environment.”

The modern push for such amendments, as well as advocates’ hopes for what they might accomplish, dates back more than a decade.

In 2012, the Pennsylvania General Assembly passed a law that made it easier for oil and gas companies to frack across the state — as few as 300 feet from residents’ homes — and preempted local authority that could have otherwise prevented it.

In most states, such a law — whatever its impacts — might well have been uncontroversially legal. But Pennsylvania had a 1970s-era green amendment promising residents the right “to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment.”

This language had long fallen into obscurity, with decades of judicial precedent requiring justices to weigh environmental harms against economic benefits — a test the economic side tended to win, as justices treated the environmental language as aspirational.

That changed in 2013, when van Rossum, who discovered the law in her capacity as the Delaware riverkeeper, and the municipal government of Robinson Township successfully sued the state on the grounds that the new fracking law violated the 1971 amendment.

In this victory, van Rossum saw a path to make the states the linchpins of a new level of environmental enforcement that could also protect them against further federal deregulation.

“If you have a piece of legislation that is antithetical to environmental protections or justice, and it’s been passed by the legislature and signed by the governor, it’s a done deal — unless there is a higher authority to challenge them, which is the state constitutions,” van Rossum told The Hill.

And where pollution is happening legally, “a green amendment may let you bring a challenge you otherwise could not bring,” she said.

Pringle, of New Jersey, says the victory of the New York amendment after multiple attempts signals that the campaign is more marathon than sprint. 

And in addition to that amendment’s adoption, green amendment advocates can also point to recent progress on the legal front: Last year, the Montana Supreme Court determined that legislation banning the state from considering the impacts of its oil and gas industry on the global climate — and the future of its 16 young plaintiffs — violated Montana’s own 1972 Green Amendment. 

Opponents of the amendments see these developments as a threat. The many unsuccessful attempts to move green amendments in state legislatures have often failed before the argument that they would promote expensive legal challenges and unclear regulation. 

“I’m all for clean air and clean water. Who isn’t?” New York state Sen. Dan Stec (R) told a reporter, explaining his vote against the legislation creating the referendum for the New York amendment. 

“But in the face of ambiguity you will have distrust, you will have lawsuits, you will have costs, and I’m trying to avoid that.”

Amid the ongoing campaign in New Mexico — where a draft bill goes to committee on Wednesday — opponents have raised similar concerns.

“The legal uncertainty that could be created by the amendment, as written, might result in costly litigation that could impact the financial feasibility of certain energy projects,” the New Mexico Legislature’s Legislative Finance Committee found in a 2023 fiscal impact report. 

That argument was also echoed from a surprising corner: the Interwest Energy Alliance, a trade group for utility-scale renewables.

Sam Johnston of Interwest told The Washington Post last year that a green amendment to New Mexico’s state constitution would benefit opponents of wind and solar plants, giving “those opponents one more tool in their toolbox to try to thwart projects or delay projects.” The New Mexico bill’s sponsor, state Sen. Antoinette Sedillo Lopez (D), called this “absolutely false” at the time.

Lawsuits based on green amendments are in no sense guaranteed to succeed. Before its successful suit in Montana, the nonprofit Our Children’s Trust had repeatedly failed before courts in Pennsylvania — even though both states have similar amendments.

To explain those failures, advocates point to one major difference between the Montana challenge and the Pennsylvania ones: The suit in Montana had far more limited aims, seeking only to knock down a climate-harming law, while in Pennsylvania, Our Children’s Trust sought to establish a sweeping new test requiring the state to analyze the environmental impacts of any new energy law.

And in both Montana and Pennsylvania, a relatively conservative — and elected — judiciary has been cautious about creating new, comprehensive legal doctrines based on the amendments.

In part because of these roadblocks, those pushing for green amendments — both from within and outside state legislatures — repeatedly argued to The Hill that concerns about the measures leading to a surge of litigation were belied by the relatively small number of actual suits that have been brought.

The wave of “frivolous lawsuits” warned of by opponents is “just not happening” in states that have passed green amendments, New Jersey State Sen. Andrew Zwicker (D) told The Hill.

In New Jersey — where the bill to establish a green amendment referendum is supported by a bipartisan group of more than a third of the state Senate and more than half of the General Assembly — Zwicker said the goal now is a hearing, “so all this can go public and get momentum to get to governor’s desk.”

New Jersey advocate Pringle told The Hill that a green amendment could in fact head off legislation by helping move the state out of a paradigm in which the only way to sue over environmental damage is to make a compelling case that one’s property has been harmed.

“If the green amendment was there balancing property rights in those instances, you know, there would be property owners … making better decisions, environmental laws would be written in such a way to better balance that stuff,” Pringle said.