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“Green Amendment” Movement Demands Constitutional Right to Clean Environment

Two states have already passed “green amendments,” and proposals are being considered in at least 13 other states. 

Thousands march in Philadelphia, Pennsylvania, for action to prevent climate catastrophe on July 24, 2016. Pennsylvania and Montana have passed “green amendments,” and proposals are being considered in at least 13 different states.

By the end of the 1960s, according to former Pennsylvania state legislator Franklin Kury, Pennsylvania had already undergone decades of “brazen” environmental exploitation at the hands of the coal, steel and iron industries.

“Pennsylvania had about 2,700 miles of streams polluted by acid from mine drainage,” Kury told Truthout, pointing to just one of the major environmental problems the state was grappling with at the time. “And the people were waking up to it.”

The national backdrop was a wider public awakening, thanks in large part to the grim findings of Rachel Carson’s Silent Spring, which chronicled the environmental destruction at the hands of the pesticide DDT. This led to the first ever Earth Day in 1970, and landmark federal environmental laws like the National Environmental Policy Act (NEPA) were signed that same year.

But in Pennsylvania, the political momentum was building toward a revolutionary new idea championed by Kury: an Environmental Rights Amendment giving Pennsylvanians a right to “clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment,” on par with other rights enshrined in the constitution, like those of life, liberty, property and the pursuit of happiness.

“This was the time to strike while public opinion was in our favor,” Kury said. In May 1971, Pennsylvania’s voters passed the amendment. “There were five constitutional amendments on the ballot that day, and two of them were rejected,” Kury added. “Environmental rights passed four to one.”

However, the amendment didn’t sweep in and brush away the problems overnight. Rather, more than 40 years would pass before the state’s judicial system would begin to interpret the amendment in the way Kury had originally intended. But what it did was lay the foundations of a national “green amendment” movement which seeks to enshrine language into state constitutions that affords everyone in the U.S. a right to a clean environment.

“Yes, it is a high bar to get a constitutional amendment. It’s harder than getting a law passed,” admits Maya van Rossum, a lawyer involved in spearheading the national green amendment movement, as well as a “Delaware Riverkeeper” who’s part of a national network of water protectors. Such proposals are at various stages of development in at least 13 different states.

“On the other hand,” van Rossum added, “once you’re successful in getting a green amendment, it’s much harder to remove.”

“It Helps Fill All the Gaps That Are Left.”

The idea behind the movement is simple: the nation’s menu of environmental laws — from federal regulations like the Clean Air Act and the Safe Drinking Water Act to individual state rules — aren’t working.

“Even if enforced exactly as written, we would still have huge problems when it comes to the environment,” van Rossum said.

The reason for that, she says, is how these laws typically aren’t preventative, meaning they’re written with the idea that pollution is a “foregone conclusion” that needs to be managed once it has already impacted the environment and people’s health.

“There are many areas of pollution and degradation that are, to a very significant extent, if not completely in some areas, simply not regulated,” said van Rossum. This is where a constitutional amendment arrives on the scene, preemptively working as a regulatory barrier at the front gate.

“As I coin the term, a green amendment not only helps to strengthen the laws on the books,” said van Rossum, “it helps fill all the gaps that are left.”

There are only two U.S. states — Pennsylvania and Montana — that can boast a green amendment in the strict way in which van Rossum defines it. “All the other states that talk about the environment in their constitution suffer one of a few fatal flaws,” she said.

For one, Pennsylvania and Montana are the only states where strong language outlining the right to clean water, air and a healthy environment is written into the Bill of Rights section of the constitution, meaning it’s an “inalienable right to be protected in the same way we protect those other civil, human and political rights that we hold dear,” said van Rossum.

A green amendment should be generational, she says, “so they mandate protecting the environment for present and future generations.” And lastly, they should be self-executing, meaning they don’t require additional legislation to give them legal life.

“That, for the most part, happens simply by virtue of the fact they are included in the declaration of rights section of the constitution,” said van Rossum. Without these combined pillars supporting them, environmental constitutional language is mostly “just pretty,” she said.

Take Virginia’s constitution — by classifying the conservation of the state’s natural resources as a matter of “policy” that politicians “may” undertake, lawmakers there have made the constitutional language vague and “toothless,” said van Rossum.

Indeed, it should go without saying that language is very much at the heart of the success or failure of any constitutional amendment. Pennsylvania’s Environmental Rights Amendment was broadly written to give it needed flexibility. “And the reason for that is, it’s the only way these provisions can have viability into the future,” Kury said. “Make them specific, it eventually kills the bill.”

Nevertheless, however well-written a constitutional amendment, they’re still vulnerable to the whim of judicial interpretation. Two important court decisions in Pennsylvania stymied the proper legal enactment of the 1971 Environmental Rights Amendment for more than four decades — a result of the state’s abiding political tenor of conservatism at the time. “The provision was simply too revolutionary for most judges,” said Kury.

But in 2013, the state Supreme Court used the provision’s language to strike down parts of a major gas drilling law in a landmark ruling. “With that case, they put new life back into the amendment,” Kury said.

“It’s a Good Reason to Push Through Amendments Like This.”

“We’ve only had six years of starting to do the work of defining what it actually means to have a constitutional right to a healthy environment,” admits van Rossum, speaking about the 2013 decision. That said, it has already shaped subsequent landmark Supreme Court environmental cases in Pennsylvania.

What’s more, it inspired van Rossum to look beyond Pennsylvania, and help try to introduce similar provisions in other states; indeed, state legislators are already advancing green amendment proposals in New York, New Jersey, Maryland and West Virginia. At the same time, van Rossum is actively working with community groups in New Mexico, Delaware, Connecticut and Maine. “And we have growing interest in Washington, Oregon, Idaho, Florida and Arizona,” she added. “The list is growing.”

Filmmaker Steve Rogers is currently putting together a documentary for PBS on van Rossum’s green amendment efforts in his home state of New Jersey.

“It’s at an industrial crossroads,” Rogers said, about the most densely populated state in the U.S. “It’s known as the smelly state.

Another important impetus for the proposal is how the New Jersey coastline is uniquely vulnerable to climate change-related issues like rising sea levels and potent hurricanes — indeed, the state is still dealing with the after-effects from Hurricane Sandy, seven years after the fact.

“Climate change is a big punctuation on this,” he said.

Mike Neas, a retired construction worker in New Mexico, is helping to draft a green amendment onto the state’s Democratic Party platform and has high hopes of success. The current environmental constitutional language in New Mexico is enforceable only through statutes and regulations. If the legislature fails to enact sufficiently stringent laws, “then the people are screwed,” Neas said, pointing to major environmental issues plaguing the state, like methane emissions from oil and gas drilling, and dumped nuclear waste.

Fortunately, political resistance to individual state efforts to push through green amendments is fairly limited, according to van Rossum. “A lot of people don’t want to come out and publicly argue against it,” she said.

Van Rossum said she responds to claims that green amendments are “job-killers” by emphasizing how economies are dependent on a healthy environment. “And that has been proven time and time again,” she said. “It costs money to deal with pollution and flooding. There’s the health care costs. You lose days at work. In fact, a healthy environment helps generate jobs.”

But at the end of the day, the movement “just powerfully resonates with people when I point out to them they have a right to bear arms but they don’t have a right to clean water,” said van Rossum. One of those people is Kate Stauffer, who lives in East Whiteland, Pennsylvania, near a toxic site that formerly housed the Bishop Tube steel tubing plant.

Activities at the plant have caused widespread pollution, both at the site and in nearby waterways, from multiple chemicals including Trichloroethylene (TCE), a known carcinogen. Schools in the region routinely visited a local contaminated creek on nature trips, and after the plant closed in 1999, children began to play in the abandoned buildings. A spate of childhood cancers in the area, however, has led many to suspect the plant’s toxic history plays a contributing role. Stauffer’s daughter, now 29, has suffered three brain tumors in succession, the first when she was 16.

“It’s frustrating as a citizen not to have any power,” Stauffer says about living so close to a toxic site. But about four years ago, she learned of Pennsylvania’s Environmental Rights Amendment. Now, Stauffer is one of a number of local citizens pushing back against plans to build hundreds of new houses at the former Bishops Tube plant, and she’s hoping the state’s constitutional laws will add legal luster to their arguments.

“When I put my anger towards something, it has to mean something,” Stauffer said. “The constitution is the law.”

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