"Green Amendments" and the Right to a Healthy Environment
The right to breathe clean air, drink clean water, eat safe and healthy foods, and live in an environment that is clean, sustainable, and free from harmful pollution and chemical exposure already has legal and constitutional protection in the United States . . . right?
You may be surprised to learn that federally, and within the majority of states, the human right to a clean, healthy, and sustainable environment is not an essential right afforded to the people. What can be done to change that?
In this article, we’re going to explore:
● foundational elements of the right to a healthy environment
● the basics of a “Green Amendment”
● the current landscape of the right to a healthy environment in the U.S.
● step-by-step instructions on how to create a Green Amendment
● why you should utilize Earth Law Center’s free templates and models to encourage your local or state government to protect this essential right
What Is the Right to a Healthy Environment?
While there is no universal definition of the right to a healthy environment, there are widely acknowledged substantive and procedural elements of this right. The substantive elements include the right to clean air, a safe and stable climate, access to safe water and adequate sanitation, healthy and sustainably produced food, non-toxic environments in which to live, work, study, and play, and healthy biodiversity and ecosystems.[1] The procedural elements include access to information, public participation, and justice and effective remedies.[2]
In October 2021, United Nations (UN) Human Rights Council resolution 48/13 recognized “the right to a clean, healthy and sustainable environment as a human right that is important for the enjoyment of human rights.”[3] Following, in July 2022, the UN reaffirmed the recognition by the General Assembly that a clean, healthy, and sustainable environment is a human right.[4]
These UN-level resolutions represent a landmark achievement in uplifting the human right to a healthy environment. That said, they are not legally binding, and so it is up to governments at various levels to legislate and implement the right to a healthy environment for their peoples. In the U.S. context, the state-level passage of “Green Amendments” is perhaps the most promising avenue toward both substantive and procedural protection of the right to a healthy environment.
What Is a Green Amendment?
Green Amendments are self-executing provisions, added to the bill of rights section of a constitution, that recognize and protect the rights of all people, including future generations, to pure water, clean air, a stable climate, and a healthy environment.[5] Green Amendments establish a constitutional mandate recognizing a healthy environment as an inherent, indefeasible, generational legal right of all citizens.[6]
Green Amendments put the right to a healthy environment on par with other rights protected in bills of rights, including free speech, religious liberty, trial by jury, and equal protection under the law.[7] Thus, the placement of the language in the bill of rights ensures the people have an inalienable right to a healthy environment.
As noted by the National Caucus of Environmental Legislators, “Green Amendments provide a backstop that can be used by community, public, government and even business interests to provide a check on government authority that overreaches and fails to protect environmental rights.”
How Is the Right to a Healthy Environment Protected in the U.S.?
As of February 2024, only three states have enacted Green Amendments. These are Pennsylvania, whose Green Amendment was established in 1971; Montana, established in 1972; and New York, newly established in 2021. Federally, this protection does not yet exist.
There are four other states—Hawaii, Rhode Island, Illinois, and Massachusetts—that have constitutional protection for the right to a healthy environment, but such language does not exist in their bills of rights, thus limiting the level of protection available to the people.
Then we have some states that include “protection” via their state environmental offices, the names of which vary, with Department of Environmental Quality (DEQ) being perhaps the most common. However, the protection falling under the DEQ does not, in any stringent way, protect the people's essential right to a healthy environment; rather, it simply encourages the maintenance of a healthy environment within the state.
Currently, there is proposed Green Amendment legislation happening in a number of states, including Arizona, California, Connecticut, Hawaii, Iowa, Kentucky, Maine, Maryland, Nevada, New Jersey, New Mexico, Tennessee, Texas, Vermont, Washington, and West Virginia. In Florida, while there is a Green Amendment on the table, it is limited to “the right to clean and healthy waters.” In Delaware, proposed Green Amendment legislation was tabled in October 2022.
Essential Criteria for a Green Amendment
The following step-by-step guide was generously provided by Maya van Rossum.
✔ ️ The provision must be placed in the Declaration of Rights/Bill of Rights section of the constitution and make clear that the rights enumerated are reserved rights that are inherent and indefeasible and belong to the people. This placement and language ensures your environmental rights are entitled to the same highest constitutional and legal protections afforded other fundamental rights.
✔ ️ The provision should clearly be grounded in response to environmental degradation that has occurred in the state. Clear legislative history about the origins of the amendment will help guide future legislative efforts and judicial interpretation.
✔ ️ The provision should mention specific environmental values to be protected such as pure water, clean air, ecologically healthy habitats, stable climate, healthy environment, etc.
✔ ️ The provision should include a broad holistic perspective on the values of protecting a healthy environment.
✔ ️ The provision must be self-executing so it does not require passage of laws in order for it to take effect and for the environmental rights of the people to be vindicated.
✔ ️ The provision should identify environmental rights as being rights of every individual, not just collective rights of the state as a whole. This helps to ensure that all people, regardless of race, ethnicity, or income, have the same rights that must be protected equitably.
✔ ️ The provision should be generational in focus. The language should explicitly acknowledge that the environmental rights enumerated and natural resources of the state belong to both present and future generations.
✔ The provision should recognize the government’s public trust duties, broadly defining the body of the trust to include natural resources and environmental values and not simply publicly-owned land, navigational waters, and/or tideland resources.
✔ The provision should ensure equitable protection of all people regardless of race, ethnicity, socioeconomics, or generation. Declaration of Rights/Bill of Rights placement, trustee language, and, ideally, a specific statement of the obligation to equitably protect environmental rights and natural resources help ensure this critical environmental justice value of the provision.
✔ The language should specifically use the word “trustee” to solidify the relationship between the government and the citizenry—the government is not the proprietor of the environment, but is the trustee with an obligation to protect the environment and natural resources for the benefit of the people, who are the beneficiaries of the trust. Using trustee language implicates well-understood trustee duties such as loyalty, prudence, impartiality, and providing the necessity for an accounting of the trust. Trust language is also important for ensuring environmental justice and generational protection.
✔ The responsibilities to protect the environmental rights, values, and natural resources, including trustee obligations, should clearly apply to all branches and all levels of government.
✔ The provision should serve as a limitation on government action or inaction that would otherwise infringe on these rights.
✔ The provision should include both affirmative duties to protect the environment and prohibitory duties (i.e., governmental actors have an obligation to refrain from legislative enactments, executive action, permitting or otherwise encouraging the degradation, diminution, or depletion of public natural resources that would occur through direct government action or indirectly, because of the government’s failure to restrain the actions of others or its authorization of damaging activities that rise to a constitutional level).
✔ ️ The provision should be drafted so that it is on equal footing with other political rights such as property rights and freedom of speech. Placing environmental rights protections in the Declaration of Rights/Bill of Rights section of a Constitution helps achieve this goal.
✔ The provision should necessitate a pre-action analysis to ensure actions taken and decisions made do not infringe upon environmental rights.
✔ The provision should be written in such a way that the court can use the plain language of the provision for its interpretation and application—this means clear language that can be easily interpreted and applied without reference to other rules of statutory construction.
What Can You Do to Support Your Right to a Healthy Environment?
While it may feel overwhelming to learn that the right to clean water, air, and a healthy environment is not an essential right afforded to the majority of U.S. citizens, it’s important to know there are things you can do in your home state to build momentum toward enacting a Green Amendment. Eventually, we hope this momentum will lead to the affording of federal protection of the right to a healthy environment to all U.S. citizens.
To start, look to your local government to enact change. Whether it’s your township or county, contact the representatives that stand for environmental justice and pollution-free communities and share with them pre-written legal models to easily propose strong protections for a healthy environment.
Next, support your state efforts in pushing to have a Green Amendment passed. Find local organizations fighting for your right to a healthy environment, and share with your state representatives how important it is to have this essential right protected.
Head over to the Earth Law Portal to find a comprehensive, step-by-step blueprint to creating a Green Amendment, as well as model Green Amendment language, both generously provided by Maya van Rossum of Green Amendments For The Generations.
[1] United Nations General Assembly (UNGA), Right to a healthy environment: good practices (2019) A/HRC/43/53
[2] Ibid.
[3] UNGA Resolution, The human right to a clean, healthy and sustainable environment (2021) A/HRC/RES/48/13
[4] UNGA, The human right to a clean, healthy and sustainable environment (2022) A/76/L.75
[5] Green Amendments for The Generations, Resources: https://forthegenerations.org/resources/
[6] National Caucus of Environmental Legislators, Green Amendment https://www.ncelenviro.org/issue/green-amendment/
[7] Bombard, Genevieve et al. The Precedents and Potential of State Green Amendments, July 2021. https://rockinst.org/wp-content/uploads/2021/07/CLPS-green-amendments-report.pdf
