The Untapped Potential of State Green Amendments

While the U.S. Constitution gives us rights as Americans, including free speech and religion, it does not provide the right to a clean environment. Yes, there is the federal Environmental Protection Agency (EPA), and every state has an environmental agency. However, every state also has air pollution, contaminated water, and toxic Superfund sites.

According to the American Lung Association’s latest State of the Air report, almost 40 percent of Americans (131.2 million people) live in places with polluted air basins. There are 11.7 million more people breathing unhealthy air compared to last year’s report. A study by the U.S. Geological Survey estimated that at least 45 percent of the nation’s drinking water has one or more types of chemicals known as PFAS. Those chemicals cause serious health issues, including liver damage.

Superfund sites are some of the most contaminated lands in the U.S. There are over 1,300 unaddressed Superfund sites nationally. The EPA provides a website that lets you see the superfund sites where you live. I looked at the Superfund sites in Fresno County, California, and found two nearby me. Both sites are on the National Priorities List, meaning they are the worst of the worst. Until doing research for this article, I had no idea either site existed.

Codifying the Right to a Clean Environment

Enter green amendments, codifying environmental rights into a state’s bill of rights. Pennsylvania passed the first state Green Amendment in 1971 to the state’s constitution. Article 1, Section 27 of the Pennsylvania Constitution states that people “have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment.”

A year later, Montana became the second state to pass a green amendment. “The state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations,” declares Article IX, Section 1 of the Montana Constitution.

New York became the third state to pass a constitutional Green Amendment in 2021. Through a voter referendum, 70 percent of New Yorkers voted to include environmental rights in the New York State Constitution’s Bill of Rights. Article I Section 19 states, “Each person shall have a right to clean air, water, and a healthful environment.” It went into effect on January 1, 2022.

In 2021, Massachusetts passed a Green Amendment to its constitution. Article 97 of the Massachusetts Constitution establishes the right to a clean environment.

Court Cases as Tools for Enforcing Green Amendments

A gap exists between state green amendments and the actions of the states. In three states (Montana, Pennsylvania, and New York) with green amendments, lawsuits challenged the actions of the state that harm the environment.

Held v. State of Montana

Sixteen young people from Montana filed a lawsuit against the state of Montana and the Montana Department of Environmental Quality, which challenged the state’s fossil fuel-based energy system. They alleged that the system contributes to climate change and violates their constitutional rights under the state’s Green Amendment. The plaintiffs specifically challenged Montana’s State Energy Policy Act, which bans the state from considering the impacts of climate change and greenhouse gas emissions in their environmental reviews. A court order allows the state to assess proposed projects’ emissions and climate change impacts.

Save Carbon County v Commonwealth of Pennsylvania

A local environmental organization filed a lawsuit against Pennsylvania and Stronghold Digital Mining. This cryptocurrency company owns and operates a coal-fired power plant in Carbon County that supplies energy for cryptocurrency mining. The plaintiffs allege that Pennsylvania subsidized Stronghold “with millions of taxpayer dollars,” which violates Pennsylvanian’s rights under the state’s green amendment.

Fresh Air for the Eastside v. New York

Fresh Air for the Eastside v. New York is the first case brought under the state’s Green Amendment, currently on appeal in the New York Appellate Division Fourth Department. Neighbors claim harm from air pollution from the High Acres Landfill, owned and operated by Waste Management New York. The landfill causes emissions from greenhouse gas emissions and toxic substances. It also releases persistent, harmful odors in the neighboring areas.

Earthjustice and New York Lawyers for the Public Interest (NYLPI) filed an amicus brief on behalf of five organizations on February 23, 2024, in the case Fresh Air for the Eastside v. New York. The brief argues that the organizations “ have a strong interest” in ensuring that the Green Amendment is a “meaningful tool that provides access to the courts and an opportunity for New Yorkers to realize their right to clean air, clean water, and a healthful environment.”

The Right to Live In Clean Communities

Green amendments enshrine the right to live in a community without pollution. For far too long, Americans have lived with tainted air and water and near Superfund sites with toxic chemicals. We deserve to breathe clean air, drink untainted water, and have healthy soil devoid of toxins. A society is only as strong as its environment is clean.

Gina-Marie Cheeseman
Gina-Marie Cheeseman
Gina-Marie Cheeseman, freelance writer/journalist/copyeditor Twitter: @gmcheeseman

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