The New Mexico and Nevada legislatures recently considered constitutional amendments to guarantee the right to a clean environment, and while the bills didn't pass, they reflect a national trend as environmentalists seek legal leverage under state law to fight polluters.
So-called "green amendments" highlight a person's inherent rights to clean air, water and soil. New Mexico and Nevada are among at least a dozen states that have considered such amendments to their state constitutions so far this year.
“Green amendments are essentially an environmental justice tool,” said Kate Burgess of the National Caucus of Environmental Legislators. “They help solidify the obligation of the state to ensure that decisions impacting natural resources are vetted and also consider the cumulative impacts on communities for both present and future generations.”
State constitutions in Montana and Pennsylvania, written in the early 1970s, were the first to guarantee the right to a clean environment. In Montana, "the right to a clean and healthful environment" has provided a legal backstop in fighting the development of mines at the headwaters of the Blackfoot River and near Yellowstone National Park.
That language also currently underpins a landmark climate case weighing whether Montana's support of the fossil fuel industry with its State Energy Policy violates the rights of the plaintiffs — 16 kids who ranged in age from 2 to 18 — as granted by the “Climate Change Exception” in the Montana Environmental Policy Act. They argued that greenhouse gas emissions were triggering adverse consequences for the state and that they were disproportionately affected by these "life-long hardships." The group filed their complaint more than three years ago; in June, it will be the first youth-led climate case to go to trial.
Maya van Rossum has helped grow the movement in recent years through the group Green Amendments for the Generations.
“It's literally focused on recognizing that clean water, clean air, a stable climate and healthy environments are inalienable human rights that belong to the people,” she said.
New York became the latest to add a green amendment in 2021.
“The truth is there are lots of environmental rights amendments in state constitutions across our nation,” van Rossum said, “but they haven't meaningfully increased environmental protection because they haven't lifted up environmental rights to that highest constitutional standing and recognition.”
The proposed amendment New Mexico lawmakers considered said residents "shall be entitled to clean and healthy air, water, soil and environment; a stable climate; and self-sustaining ecosystems, for the benefit of public health, safety and general welfare." It was nixed after a fiscal impact report warned of “legal uncertainty" and the potential for "costly litigation that could impact the financial feasibility of certain energy projects.”
In Nevada, a similar proposal was defeated over concerns that it would, as the Nevada Independent reported, "lead to unending lawsuits and roadblocks to new development and renewable energy projects and that they include vague terms that would be left up to interpretation within the state’s courts."
Still, Burgess says the movement is building.
“Community or public support is still growing as grassroots organizations are educating the public about it,” she said. “But overwhelmingly, in the states where there's been momentum, the public has been on board.”
Other states that have introduced green amendment legislation include Iowa, Texas, Maine, Connecticut and Tennessee, according to the National Caucus of Environmental Legislators.
This story was produced by the Mountain West News Bureau, a collaboration between Wyoming Public Media, Nevada Public Radio, Boise State Public Radio in Idaho, KUNR in Nevada, the O'Connor Center for the Rocky Mountain West in Montana, KUNC in Colorado, KUNM in New Mexico, with support from affiliate stations across the region. Funding for the Mountain West News Bureau is provided in part by the Corporation for Public Broadcasting.
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