An Introduction to U.S. State Environmental Rights Amendments

By Johanna Adashek

Environmental rights declare the right of people to a certain level of environmental protection, just as civil rights cement the people’s rights to due process or freedom of speech. Environmental rights can be in the form of a law, constitutional amendment, or most recently, within a UN Declaration. This post will focus mainly on environmental rights amendments (ERAs), or those enumerated within a constitution. Further, while dozens of countries have ERAs within their constitutions, this post will focus on ERAs within U.S. state constitutions. This post will review the states with ERAs and different approaches to ERA protections, discuss the utility of ERAs, and describe recent developments involving ERAs.

In the 1970s, six states enacted ERAs within their constitutions. Each has slightly different language but at their core they confer a substantive right to a level of environmental protection that can be superficially described as clean, healthy, or healthful. For example, compare the language in the following texts:

 – Pa. Const. art I, § 27: The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment… 

 – Haw. Const. art XI, § 9: Each person has the right to a clean and healthful environment…

 – Ill. Const. art XI, § 2: Each person has the right to a healthful environment…

 – Mass. Const. art XLIX: The people shall have the right to clean air and water, freedom from excessive and unnecessary noise, and the natural, scenic, historic, and esthetic qualities of their environment…

 – Mont. Const. art II, § 3: All persons are born free and have certain inalienable rights. They include the right to a clean and healthful environment and the rights of pursuing life’s basic necessities, enjoying and defending their lives and liberties, acquiring, possessing and protecting property, and seeking their safety, health and happiness in all lawful ways…

 – R.I. Const. art I, § 17: The people shall continue to enjoy and freely exercise all the rights of fishery, and the privileges of the shore, to which they have been heretofore entitled under the charter and usages of this state…

What follows an initial declaration of environmental protection varies with each state but can include trusteeship provisions, tasking the state to conserve and maintain the environment, or an imposition on the state legislature to provide for the protection of the environment. ERAs can be differentiated from the policy declarations that can be found in approximately 20 state constitutions as those do not provide a substantive right. Compared to policy directives that can be used to request the government to implement policy or appropriate funds, substantive ERAs provide additional tools for environmental protection.

ERAs can be powerful and versatile when utilized properly. ERAs intuitively promote the enactment of environmental laws. In Illinois, the legislature, under the directive of its ERA, passed Illinois’s Environmental Protection Act. Illinois’s Environmental Protection Act in turn created Illinois’s Environmental Protection Agency and the Pollution Control Board. More directly, Rhode Island’s ERA prescribes for the creation of legislation: “it shall be the duty of the general assembly to provide for the conservation of the air, land, water, plant, animal, mineral and other natural resources of the state, and to adopt all means necessary and proper by law to protect the natural environment of the people of the state.”R.I. Const. art I, § 17. 

When interpreted improperly, ERAs prove less useful. The prime example is how many believed that Pennsylvania’s ERA was not self-executing and thus, on its own, ineffective or “lacking teeth,” for 40 years. In 1973, the Pennsylvania Supreme Court held that the ERA was not self-executing and needed implementing legislation to be enforced. Later that year, the Pennsylvania Supreme Court created a three-part test to determine if an action violated the amendment. The third part required the environmental harm to clearly outweigh the derived benefit, a difficult standard to meet. This was the standard for 40 years until Robinson Township in 2013, where a plurality of the Pennsylvania Supreme Court rejected the three-part test from Payne v. Kassab and argued that the ERA was self-executing and a tool in its own right. In Pennsylvania Environmental Defense Fund v. Commonwealth in 2016, a majority of the court cemented what the plurality in Robinson Township argued, validating the Pennsylvania ERA as a powerful future tool for combating environmental degradation.

Additionally, when ERAs are placed within a bill of rights, the ERA can then be considered a fundamental right and require application of strict scrutiny. Strict scrutiny provides stronger protections for the right as strict scrutiny requires that any law contrary to the environmental right show: (1) a compelling governmental interest, and (2) that the means to achieve the law’s objectives are narrowly tailored. Rights that are not considered fundamental only need to meet rational basis review, which requires (1) a legitimate governmental purpose and (2) means that are rationally related to such purpose. These simple differences often decide the fate of a contrary law and throughout history; laws that burden rights that are fundamental are unconstitutional while those that burden non-fundamental rights are upheld. 

Environmental rights reflect what at the time was important, enough to be raised to a constitutional level of protection, for that state. For most, it is a broad level of environmental protection that allows the state the flexibility to meet that level of protection in a way it sees fit and to a level within its bounds at that time. This broad scope, which is often misinterpreted as vagueness, is one of the most important and useful aspects of a constitutional amendment as compared to a statute or regulation. This is because constitutional amendments are meant to stand the test of time and persist through various governmental regimes regardless of political views. The six states with environmental amendments described above have endured more than fifty years through various political agendas and complex environmental dilemmas that they have been able to meet with the flexibility of a constitutional amendment. For example, in Hawai’i, the people were given a larger voice in the purchase of electric power; in Illinois, the ERA helped citizens overcome restrictive environmental standing barriers; and in Pennsylvania, residents had a tool to combat excessive fracking. 

Recently, Montana’s ERA is being used as a tool in the youth climate litigation and played a role in allowing the youth plaintiffs’ case to proceed to trial. Held v. Montana is just one of the many climate trials in progress and an outgrowth of the Juliana federal youth climate litigation. The Juliana plaintiffs endured years litigating the issue of standing, which is the basis for judiciability and determines the ability for the plaintiffs to have their case heard. In Juliana, the youth plaintiffs argued that the U.S. government violated their rights under the U.S. Constitution to life, liberty, and property. The U.S. Circuit Court of Appeals for the Ninth Circuit held that the plaintiffs lacked Article III standing despite their “compelling case that action is needed” and that “the government has had a role in causing” climate change. Juliana v. United States, 947 F.3d 1159, 1175 (2020). 

So how have the youth plaintiffs in Held v. Montana been able to overcome standing while the youth Plaintiffs in Julianawere unable? The forum plays an important role. The Juliana plaintiffs based their cause of action in part on the U.S. Constitution, whereas the Held plaintiffs can rely on Montana Constitution’s ERA to support their standing argument and as part of their causes of action. The Held case is likely the first of many state cases that will attempt to use an ERA to leverage environmental protections. The second will follow shortly in Hawai’i, where the Constitution contains an ERA and the state court has been historically kind to cases utilizing their ERA.

Meanwhile, states with ERAs are also on the rise. Many states have proposed environmental rights amendments in recent legislative sessions. This includes New Mexico, Maine, Maryland, Oregon, and Washington. In 2021, New York succeeded in enacting an ERA. The NY Amendment is located within the NY Constitution’s bill of rights and simply states: “[e]ach person shall have a right to clean air and water, and a healthful environment.” While many of the cases are still pending appeal or waiting for their day in court, citizens expect that the ERA will be a powerful tool for environmental justice and environmental protections.

Additional Sources:

• Barry E. Hill, Time for a New Age of Enlightenment for U.S. Environmental Law and Policy: Where do we go from Here?, 49 Env’t. L. Rep. (Env’t. L. Inst.) 10362 (2019).
• Johanna Adashek, Do it for the Kids: Using an Environmental Rights Amendment to Protect Future Generations from Climate Change Impacts and Future Pandemics, 45 Pub. Land & Resources L. Rev. 113 (2022).
• Held v. State, Climate Case Chart, http://climatecasechart.com/case/11091/ (last updated July 7, 2023).
• Maiyo Saji, Celebrating the 1-Year Anniversary of the New York Environmental Rights Amendment, EarthJustice (Feb. 7, 2023), https://earthjustice.org/experts/maiyo-saji/celebrating-the-1-year-anniversary-of-the-new-york-environmental-rights-amendment.
• Navahine F. v. Hawai‘i Department of Transportation, Climate Case Chart, http://climatecasechart.com/case/navahine-f-v-hawaii-department-of-transportation/ (last visited July 25, 2023).
• Scott Stern, Did Montana violate its residents’ right to a clean environment?, Wash Post. (June 12, 2023), https://www.washingtonpost.com/made-by-history/2023/06/12/did-montana-violate-its-residents-right-clean-environment/. 

Referenced Cases:

• Citizens Opposing Pollution v. ExxonMobil Coal USA, 962 N.E.2d 956 (Ill. 2012).
• Commonwealth v. Nat’l Gettysburg Battlefield Tower, 311 A.2d 588 (Pa. 1973).
• Held v. Montana, No. CDV-2020-307 (Mont. D. Ct. 2020).
• In re Gas Co., LLC, 465 P.3d 633 (Haw. 2020).
• In re Hawai’i Elec. Light Co., 445 P.3d 673 (Haw. 2019).
• In re Maui Elec. Co., 249 P.3d 1 (Haw. 2017).
• Juliana v. United States, 947 F.3d 1159 (2020).
• Montana Env’t Info. Center v. Dep’t of Env’t Quality, 988 P.2d 1236 (Mont. 1999).
• Pa. Envtl. Def. Found. v. Commonwealth, 161 A.3d 911 (Pa. 2017).
• Payne v. Kassab, 361 A.2d 263 (Pa. 1976).
• Robinson Township v. Commonwealth, 83 A.3d 901 (Pa. 2013).