The US and state constitutions need a new amendment that protects environmental rights following the Supreme Court’s Sackett v. EPA decision, says Maya van Rossum of Green Amendments For the Generations.
The recent Supreme Court opinion in Sackett v. EPA was the latest in a string of decisions chipping away at critical environmental protections—stripping from federal agencies the ability to protect our water, air, climate, and wetlands.
In last year’s West Virginia v. EPA, the court undermined the ability of the EPA to proactively address the climate crisis by invalidating a regulation designed to shift electricity generation from coal to natural gas, to renewable energy sources.
Now, in Sackett, the court has severely curtailed the ability of federal agencies to protect critical wetlands under the Clean Water Act by narrowing the definition of protected wetlands to only those that that have a “continuous surface connection” with waterways that have relatively continuous, standing, or flowing waters, “making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”
The court based its reasoning in part on the importance of securing rights of property owners to fully use their property. Often in matters of environmental protection, property rights are given a level of respect, primacy, and protection above the inherent right of people to a clean and healthy environment. This is no surprise—the sanctity of property rights is deeply ingrained in our society. Property rights are so revered that they are embedded in the Bill of Rights of both our state and federal constitutions, ensuring their precedence when threatened by government overreach.
We saw a similar principle last year in New York State Rifle & Pistol Association v. Bruen where the Supreme Court struck down long-standing and commonsense gun regulations via Second Amendment language. By contrast, in Dobbs v. Jackson Women’s Health Organization, the lack of an explicit constitutional entitlement allowed abortion rights to be more easily struck down by the court. Together, Bruen and Dobbs confirm that human, civil, and/or political rights—no matter how fundamental or popular—aren’t secure without explicit constitutional protection.
There’s a lesson here for the environmental movement: if we are to ensure our inalienable human rights to clean water and air, a stable climate, and a healthy environment, we need to give them the highest constitutional standing so they can withstand ill-advised government action, adverse court decisions, or hostile political agendas. We need to enshrine them in our state and federal Bill of Rights.
We call this a “Green Amendment”—a simple, but powerful way to ensure our fundamental environmental rights are protected, regardless of race, ethnicity, wealth, geography, or gender, by putting them on the same constitutional footing as property rights, freedom of religion, and the right to free speech.
With placement in the Bill of Rights and appropriately crafted language, a Green Amendment ensures our environmental rights are prioritized in all government action, strengthening government decisions that are beneficial for environmental protection and provide a critical backstop and powerful tool of accountability for when the government overreaches.
Green Amendments date back to the environmental renaissance of the late 1960s and early 70s, when Montana and Pennsylvania amended their constitutions’ bill of rights to guarantee the right to pure water, clean air, and a healthy environment. These have taken on new urgency in today’s climate and environmental crises.
During this period, many states added environmental rights and protection language to their constitutions, but placement and framing of language failed to give the same constitutional standing and qualities that Pennsylvania and Montana’s Green Amendments provide.
In 2013, I helped lead my regional environmental organization, the Delaware Riverkeeper Network, in its successful challenge of a pro-fracking law under Pennsylvania’s then-dormant Green Amendment, breathing new life into this old tool. Our victory was only possible because the State Supreme Court recognized and reaffirmed that the Green Amendment offered explicit protection for the fundamental environmental rights of all Pennsylvanians.
The passage of a constitutional entitlement to a clean and healthy environment doesn’t displace existing environmental protections or throw them into disarray. It strengthens them, providing constitutional guidance for how officials can best carry forward their obligation to protect the rights of people and communities.
And when our laws fail to ensure equitable protection of environmental rights or address critical issues of environmental concern, Green Amendments provide a pathway for people, the courts, and good government officials to set things right.
The US has a system of state and federal laws that strive to address environmental regulation, without explicit constitutional protection. But our environmental rights are always contingent and at the mercy of a political process that seeks the lowest common denominator of agreement and works to minimize and legalize pollution rather than prevent it.
Our rights to clean water and air, a safe climate and healthy environment, are fundamental, inherent, and indefeasible—they are not rights given to us by our government, but are rights we have as people. Given today’s environmental and climate crises, our environmental rights demand a constitutional foundation, a backstop that guides government action and a mechanism for accountability that can check government overreach when needed.
That’s the goal of the Green Amendments For the Generations movement sweeping our nation—to ensure that all people have a clear, enforceable constitutional right to pure water, clean air, a stable climate, and healthy environment and, as a result, can experience all of the health, quality of life, education, joy, and economic prosperity that a clean, safe and healthy environment provides.
This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
Maya K. van Rossum is founder of the national Green Amendments For the Generations movement and organization.
