(April 22, 2021) - In an Earth Day Q&A interview with Thomson Reuters, environmental attorney and advocate Maya K. van Rossum says several states are considering new constitutional amendments that would strengthen protections for human health and the environment.

Van Rossum is the author of "The Green Amendment: Securing Our Right to a Healthy Environment" and was a lead petitioner in a landmark 2013 Pennsylvania case that revitalized the state constitution's environmental rights amendment.

Thomson Reuters: What is environmental constitutionalism?

Maya K. van Rossum: Environmental constitutionalism is focused on using the strongest aspects of constitutional protection and law, and utilizing them to recognize and protect the inalienable, indefeasible and inherent rights of all people to a clean and healthy environment. People are often quite shocked when I point out to them that while they have an enforceable constitutional right to free speech, to bear arms, to practice their religion, and more, they do not have an individual and enforceable right to the basics of a clean and healthy environment essential to supporting their health, safety and lives.

Through the passage of what I call "Green Amendments," environmental constitutionalism is about transforming our system of environmental protection so it is grounded in, and guided by, an enforceable constitutional right to all aspects of a clean and healthy environment including water, air, climate, flora, fauna, and ecosystems, as well as the natural, cultural and human health values of healthy environments.

Thomson Reuters: What are Green Amendments?

Maya K. van Rossum: Green Amendments recognize and protect the inalienable rights of all people to pure water, clean air, a stable climate, and healthy environments in the declaration of rights section of a constitution. As a result of proper placement and language, Green Amendments constitutionally and legally put environmental rights on par with other civil, human and political rights — like free speech, due process and property rights.

Green Amendments reorient government decision-making so it is focused on prevention of environmental degradation as opposed to simply acceptance and management; ensure environmental rights are included in the fair balancing of fundamental rights including ensuring that property rights can no longer be used to sacrifice the environmental health and safety of those around; provide constitutional strength to environmental justice protection by mandating equitable protection for all communities regardless of race, ethnicity or socioeconomic status; and secure an obligation to ensure government decision-making considers science, cumulative impacts, and generational protections.

TR: You open your book with a story about how your organization successfully invoked Pennsylvania's environmental rights amendment in court to defeat a state law that could have expanded shale gas fracking and drilling. What makes Pennsylvania's constitutional amendment unique?

MKVR: The Pennsylvania environmental rights amendment, Penn. Const., art. 1, §27, is unique among state constitutions and is the original standard bearer for what I have defined to be a constitutional Green Amendment. Article 1, Section 27 is a self-executing environmental rights amendment placed in the declaration of rights section of the constitution, which by its language, placement and terms raises up environmental rights so they are constitutionally on par with other fundamental human, civil, political and inalienable rights such as speech, property, civil, and gun rights.

In addition, its language is explicitly generational; it recognizes the individual environmental rights of all people regardless of race, ethnicity or socioeconomic status; and recognizes the duty of all state government officials to protect the state's natural resources as a trustee for the benefit of all the state's people. The placement and language provide many clear values, benefits and protections that do not exist under a strictly legislative approach to the environment or that is found in constitutional language in other states.

The power and strength of this constitutional approach to environmental protection was demonstrated to me by a 2013 legal victory in which I and my organization, the Delaware Riverkeeper Network, joined by seven municipalities, used the amendment to defeat a devastatingly pro-industry piece of legislation that would have exponentially increased the devastating consequences of fracking already taking place in the state.

In February 2012, the Pennsylvania Legislature passed Act 13 amending the Pennsylvania Oil and Gas Act. The amendments were a drastic change to existing law and included a one-size-fits-all zoning scheme for oil and gas operations across the entire commonwealth of Pennsylvania. Among other things, Act 13 required all municipalities to allow oil and gas wells in every zoning district, including residential districts and near schools, playgrounds and hospitals. By virtue of the new law, wastewater impoundments and well pads could be located less than a football field's distance from someone's home.

The law blocked local governments from applying to oil and gas operations stormwater management, grading, and other typical local requirements for industrial operations. In addition, the law limited notification requirements regarding contamination of private drinking water wells; provided a medical gag rule to shield information-sharing regarding industry chemicals, including between physicians and their patients; and provided automatic waivers for the shale gas industry from minimal environmental protection standards. A primary legal argument I and my organization advanced in Robinson Township et al. v. Commonwealth of Pennsylvania et al., 623 Pa. 564 (Pa. 2013), amongst other arguments, was that Act 13 violated Article I, Section 27 of the Pennsylvania Constitution.

On Dec. 19, 2013, the Pennsylvania Supreme Court rendered a decision in which a plurality of justices, for the first time ever, struck down a state law for violating the state constitution's environmental rights amendment. In the rendering of the decision, the author of the plurality opinion — Chief Justice Ronald Castille — emphasized that the environmental rights amendment is first and foremost a limitation on government authority thereby protecting environmental rights from government infringement, just like other fundamental rights protections in Article I of the Pennsylvania Constitution.

In an opinion filled with eloquence about the importance of a healthy environment, and a heavy emphasis on the proper constitutional interpretation of constitutional language, Justice Castille highlighted that "the constitutional provision directs the 'preservation' of broadly defined values of the environment, a construct that necessarily emphasizes the importance of each value separately, but also implicates a holistic analytical approach to ensure both the protection from harm or damage and to ensure the maintenance and perpetuation of an environment of quality for the benefit of future generations."

In the final analysis, the court determined that provisions of Act 13 we were challenging would result in a violation of the Pennsylvania environmental rights amendment and were therefore unconstitutional. As Pennsylvania Supreme Court Justice Max Baer wrote, the 2013 opinion "rejuvenated Section 27 and dispelled the oft-held view that the provision was merely an aspirational statement."

TR: What is the difference between a self-executing green amendment and a constitutional provision that declares it is state policy to protect the environment?

MKVR: As I explain when speaking with audiences, self-executing constitutional language is enforceable against environmentally harmful government action; state policy is good advice that can be ignored without serious legal consequence. Given the devastating consequences of environmental pollution and degradation to the health, safety and quality lives of people, it is essential that they have an enforceable right that can be used to hold government accountable for serious and meaningful environmental justice and protection.

The self-executing nature of a Green Amendment is irreplaceably important — it ensures that the amendment defines and guides the interpretation and application of state environmental protection laws, as opposed to the constitutional right being defined through legislation, regulation or policy which is the result of a political process and all too often is seriously deficient. Given that state environmental laws and regulations have helped to perpetuate and support unacceptable levels of environmental degradation as well as environmental racism, ensuring that the Green Amendment helps to define state environmental protection laws as opposed to being defined by them is essential.

Self-executing, declaration of rights placement ensures that the legislature does not need to pass laws in order to activate the environmental rights recognized; they become defensible and actionable by virtue of the fact that they are in constitution — this means that when the laws are too weak to provide critical protections, there are gaps in the laws failing to address serious environmental threats, or improper interpretation or implementation allows communities to suffer unacceptable consequences of environmental degradation, the constitutional language itself can be used by the people to seek and secure their inalienable rights to a clean and healthy environment.

Ensuring environmental rights are constitutionally and legally self-executing is important to guarantee that aggrieved communities are entitled to a fair hearing and determination before the courts when they believe their rights are being violated due to government action or inaction, and that aggrieved communities are not limited to the next election and securing better political representation in order to address environmental rights violations.

For example, while New Mexico does not currently have a Bill of Rights protection for environmental rights, Article XX, Section 21 of the state constitution does include a government obligation to protect natural resources and the environment, but expressly delegates that duty to the state legislature.

When faced with a challenge to the state's exercise of its environmental protection obligations in Sanders-Reed ex rel. Sanders-Reed v. Martinez, 350 P.3d 1221 (N.M. Ct. App. 2015), after asserting that the challenged statutory scheme enacted by the legislature was adequate, the court affirmatively asserted that if the public does not like how the legislature is carrying out its environmental protection obligations as articulated in Article XX, Section 21, they as "voters have the opportunity to exercise their desire for political change regarding complex environmental issues at the ballot box during each election cycle." By expressly limiting the constitutional obligation to the legislature or existing laws, and removing it from the realm of self-executing constitutional interpretation, the court ensured that the constitutional authority lay with the legislature and not the people.

TR: How many states have self-executing green amendments? How many states are considering amendments?

MKVR: Currently there are only two states that recognize fundamental environmental rights such as clean water and air, and a healthy environment in their state declaration of rights, that is Pennsylvania and Montana. There are over 40 other states that talk about the environment in their constitutions, but they do not meet my basic definition of a Green Amendment. That being said, as of Earth Day 2021, I am proud to say that my work and book have inspired proposals in 12 states: New York, New Jersey, New Mexico, Maine, Maryland, West Virginia, Vermont, Kentucky, Hawaii, Oregon, Washington and Delaware.

TR: The first Earth Day helped trigger a wave of environmental protection laws, why are Green Amendments needed over 50 years later?

MKVR: We can just look at what is happening in our communities and nation to see that our current system of environmental laws and government decision-making are fundamentally failing us — environmental degradation is devastating the health and safety of communities across our nation, environmental racism continues to run rampant, and a growing climate crisis is threatening the health and safety of future generations. This is in large part because our current system of laws focus more on permitting and managing pollution and environmental degradation at the end of the decision-making process rather than preventing harm in the first place; there are many gaps in the law with few means for people or government officials to address the problem in the absence of law or regulation; and even good laws on the books are easily undermined by weak interpretation or implementation because of anti-environment political administrations, lack of funding and/or lack of essential staffing and resources.

A stronger legal path for environmental protection is essential if we want to truly honor the inalienable human rights of all people to clean water and air, and all the irreplaceable and essential benefits healthy environments provide including the health, safety, quality of life, economic, education, recreation, psychological, religious and moral benefits. The overarching guidance provided by a strong, clear and enduring declaration of rights provision laying out the expectations, guidance and demands of the people is what is missing and what is needed.

TR: Do Green Amendments benefit underserved communities?

MKVR: As with so many other aspects of our society, environmental racism is systemic. The targeting of communities of color, indigenous communities, low-income and immigrant communities is a stark and recognized reality supported by the ways our environmental laws are written and implemented. Systemic failures require systemic reforms throughout the government structure to address all areas of racial inequity. Green Amendments are a powerful tool for ending environmental racism and advancing true environmental justice by providing the constitutional basis essential for advancing true systemic reform.

Green Amendments ensure a duty of equitable treatment owed to all communities by officials at all levels of government. Green Amendments constitutionally mandate that all communities have the same rights to clean water and air, and healthy environments, regardless of race, ethnicity, or socioeconomic status. With a state Green Amendment, all government officials, from the local town council to the legislature and the Governor's office, become constitutionally duty bound to equitably protect the environmental rights of all people and communities. No longer can there be environmental sacrifice zones where communities of color are unjustly and repeatedly targeted for pollution and environmental degradation that harms every aspect of their lives.

Green Amendments require that government officials engage in truly informed decision-making and understand the impacts of their actions before allowing a proposal (whether legislation, regulation, permitting, etc.) to move forward. This means an analysis and consideration of relevant science, existing local conditions, potential impacts and cumulative impacts as part of decision-making. For example, is the community already being impacted by uranium contamination or industrial air pollution that will be compounded to a constitutional level by the proposed government action or decision at issue? Constitutionally it will not be enough to be aware of this information. The information will necessarily have to impact government action in order to fulfill the constitutional duties of informed decision-making, equitable treatment, and prioritizing environmental rights protection in order to prevent government infringement absent a compelling state interest and a demonstrated effort to minimize the incursion.

While adding the right of all people to clean water and air, and a healthy environment will not be an instant panacea, it will ensure environmental justice is a constitutional priority, that government will need to focus on prevention of pollution and harm rather than simply permitting and managing it, that communities have access to the courts when they believe their constitutional environmental rights have been violated, and it will ensure the strongest legal tool we have — our constitutions — can be used to restore environmental protection, equity and justice when government fails us.