States Tackle Environmental Matters

The United States Constitution is silent on the environment. There is no federal environmental rights amendment to the constitution in the US.

Abraham Lincoln is considered to be the first "green president" because of his actions to protect the environment and support the study of science by signing the Yosemite Grant Act, which protected Yosemite Valley and Mariposa Grove as California state-owned wilderness for public enjoyment in 1864.

President Richard Nixon's administration is credited with initiating many of the most important, and enduring, environmental policies in American history, when the Environmental Protection Agency (EPA) was established in 1970 to protect the environment and public health ,which was followed by the passage of several environmental laws, including: 

• The Clean Air Act of 1970 
• The Clean Water Act of 1972 
• The Endangered Species Act of 1973 

With the enactment of EPA, in early 1970’s several U.S. states adopted green amendments to their constitutions, aiming to secure these environmental rights as legally enforceable.  The state of Pennsylvania was the first to pass an actual environmental/green rights amendment as part of their state's bill of rights in 1971. Montana added environmental/green rights in 1972.

President Joe Biden's historic Climate Agenda tackled climate change, created jobs, and restored scientific integrity (Jan. 27, 2021) via the Inflation Reduction Act – the most significant climate crisis investment in U.S. history – and the Bipartisan Infrastructure Law.

With Biden’s Climate Agenda in 2022, New York State added an environmental/green rights amendment to their bill of rights. Article I section 19 of the New York Constitution provides, "Each person shall have a right to clean air and water, and a healthful environment."

State Level Green Amendment Movement

Green Amendments For The Generations is a movement founded by environmental advocate and attorney Maya van Rossum to promote state-by-state adoption of a “Green Amendment” in the Bill of Rights section of every state constitution — and eventually the U.S. Constitution —to advance Green Amendment movement to secure a constitutional right to pure water, clean air, a stable climate & healthy environments, for all people, including future generations, regardless of race, ethnicity, or socioeconomics. Van Rossum launched the national movement following a landmark 2013 legal victory that utilized Pennsylvania’s green amendment to defeat a pro-fracking law passed by the state legislature.

Six state constitutions have explicit environmental-rights provisions: Hawaii, Illinois, Massachusetts, Montana, Pennsylvania, and Rhode Island.  Twenty-one states including Arizona^[1], California^[2], Connecticut^[3], Delaware^[4], Florida^[5], Hawaii^[6], Iowa^[7], Kentucky^[8], Maine^[9], Maryland^[10], Michigan^[11], New Jersey^[12], New Mexico^[13], Nevada^[14], Oregon^[15], Tennessee^[16], Texas^[17], Vermont^[18], Washington^[19], and West Virginia^[20], Wisconsin^[21] are drafting green legislation to add environmental rights/ green amendments to their state constitutions. 

Green Amendments are constitutional provisions that ensure environmental rights environment as a basic civil liberty —like clean air, pure water, and a stable climate. These rights can require government officials to prioritize environmental protections in energy policy, with courts playing an important role in enforcing environmental rights.

These rights are recognized and protected at a fundamental level, setting a legal foundation for environmental protection, often allowing citizens to sue for environmental harm and hold the government accountable for preserving natural resources. Green Amendments to State Constitutions can lead to stronger environmental policies and actions by providing a legal framework for environmental protection that surpasses regular legislation. They embed environmental rights directly into the state constitution, reflecting a high priority on sustainability and public health threats, which have reached record levels, according to the 2024 Lancet Countdown report.

What are the State Level Green Amendment Developments for 2024?

As 2024 draws to an end, it is noteworthy that thirty-one states made clean energy progress, led by organizations in the Conservation Voters Movement. Fifteen states passed laws to accelerate the power grid's transition to renewable energy, 34 states took action to promote equitable access to the outdoors, and six states signed bills to reduce plastic pollution.  And the last two weeks of the year proved that securing environmental rights through state constitutional green amendments can make a positive difference.

Montana

On December 18, 2024 Montana’s Supreme Court upheld the landmark climate ruling Held v. State of Montana  that said the state was violating residents’ constitutional right to a clean environment by permitting oil, gas and coal projects without regard for global warming while revoking two Montana statutes.    

The youth-led constitutional climate lawsuit is the first in the US to go to trial and triumph (August 2023) when 16 youth plaintiffs sued Montana for failing to consider climate change impacts in its decision-making and promoting fossil fuel extraction. 

The court ruled that: 

• Montana has a duty to act to reduce climate emissions; 
• Montana's constitution guarantees the public's right to a clean and healthful environment;
• Montana's laws that limited the ability of regulators to consider climate effects were unconstitutional;
• Montana's promotion of fossil fuel extraction violated the plaintiffs' constitutional rights.

New York

New York is widely considered to have the strongest environmental laws in the US.  It has been a signatory to the largest estuary in the United StatesChesapeake Bay Watershed Agreement since June of 2014. The state enacted a constitutional green amendment  in 2022 with New York State's Climate Agenda requiring New York to reduce economy-wide greenhouse gas emissions 40 percent by 2030 and no less than 85 percent by 2050 from 1990 levels and directs a minimum of 35 percent of the benefits to disadvantaged communities^[22]. 

In an effort to protect the state’s environment and recover $2.2 billion in climate-related damages caused by fossil fuel emissions in 2023 alone, New York Governor Kathy Hochul on December 26^th signed into law the landmark Climate Change Superfund Act  which targets fossil fuel companies by charging any polluter that emitted over a billion tons of greenhouse gas from 2000 to 2018, based on their historical share of total emissions.

“With nearly every record rainfall, heatwave, and coastal storm, New Yorkers are increasingly burdened with billions of dollars in health, safety, and environmental consequences due to polluters that have historically harmed our environment,” 

Governor Kathy Hochul explained.

“Establishing the Climate Superfund is the latest example of my administration taking action to hold polluters responsible for the damage done to our environment and requiring major investments in infrastructure and other projects critical to protecting our communities and economy.”

New York has been advancing a suite of efforts to achieve an emissions-free economy by 2050, including in the energy, buildings, transportation, and waste sectors and became the second state in the nation to set up this type of Superfund; Vermont passed a similar bill earlier this year.

“The Climate Change Superfund Act is now law, and New York has fired a shot that will be heard round the world: the companies most responsible for the climate crisis will be held accountable. Too often over the last decade, courts have dismissed lawsuits against the oil and gas industry by saying that the issue of climate culpability should be decided by legislatures.

Well, the Legislature of the State of New York – the 10th largest economy in the world – has accepted the invitation, and I hope we have made ourselves very clear: the planet’s largest climate polluters bear a unique responsibility for creating the climate crisis, and they must pay their fair share to help regular New Yorkers deal with the consequences. And there’s no question that those consequences are here, and they are serious.

Repairing from and preparing for extreme weather caused by climate change will cost more than half a trillion dollars statewide by 2050. That's over $65,000 per household, and that’s on top of the disruption, injury, and death that the climate crisis is causing in every corner of our state. The Climate Change Superfund Act is a critical piece of affordability legislation that will deliver billions of dollars every year to ease the burden on regular New Yorkers”

explained State Senator Liz Krueger. 

Around 35 oil companies—including ExxonMobil, Saudi Aramco and BP—must contribute, pay into a new fund for things like stormwater system improvement, coastal infrastructure, energy-efficient cooling systems, restoring wetlands, and protection from hurricanes and floods.

The law, S2129B/A3351B, will require oil companies to pay $75 billion over the next 25 years to help support projects that increase the state’s resiliency to the effects of climate change, such as flooding and extreme heat. It sets up rules for calculating payments into the Climate Change Adaptation Cost Recovery Program to shift the cost of climate adaptation from everyday New Yorkers to the fossil fuel companies most responsible for the pollution based on having emitted over one billion tons of greenhouse gases.

Companies will have to use specific formulas based on the type of fuel that will require these companies to pay a portion of the $3 billion annual penalties related to their prior emissions. The fines assessed under the new law will  be based on a company’s historic greenhouse gas emissions with “no finding of wrongdoing requirement.”

“These punitive measures against past polluters dovetail perfectly with the governor’s bold vision for a ‘Cap and Invest’ program that will help curb future greenhouse gas emissions and generate revenue to help New York transition to a more equitable clean energy economy. The Sierra Club is excited to see this momentum carry into 2025,”

said Sierra Club Atlantic Chapter Conservation Director Roger Downs in a recent statement.

Before any penalties are assessed, the state will first adopt methodologies to properly determine the responsible parties, as well issue notices of “cost recovery demand” to these parties and the consequences of non-payment.

“Holding polluters accountable for the damages they cause is essential to New York’s environmental protection efforts, and I commend Governor Hochul for signing this historic climate legislation into law. By ensuring those responsible for historic climate-altering emissions bear the costs of the significant health, environmental, and economic impacts already being passed on to New Yorkers, this law will complement the State’s efforts to reduce greenhouse gas emissions, help communities adapt to the climate-driven impacts experienced today, and leverage the significant investments the Governor is making in climate resilience”

said New York State Department of Environmental Conservation Interim Commissioner Sean Mahar.

Another new significant climate law signed by Governor Hochul earlier during the week expands upon New York State’s 2014 prohibition of high-volume hydraulic fracturing to extract natural gas. Legislation S.8357/A.8866 amends the State Environmental Conservation Law to prohibit the use of carbon dioxide in gas or oil extraction to prevent potential negative health or environmental effects from carbon dioxide fracking in the state.

“As the year draws to a close, New York State takes a critical step forward with Governor Hochul’s signing a Climate Superfund bill into law. This law will require major fossil fuel companies to pay into a fund which will mitigate the climate damage their greenhouse gas emissions have engendered.

All New Yorkers face climate challenges from extreme rain events or extreme heat and the remediation expenses that should be borne by the enormously profitable fossil fuel industry.

These desperately needed funds will provide for projects all across New York as Governor Hochul implements a Climate Adaptation Program to invest in infrastructure and coastal resilience. Additionally, thanks to Governor Hochul New York has expanded protection from the harmful practice of hydro fracturing for oil and gas production with a ban on the use of carbon dioxide for this purpose”

added Assembly member Deborah Glick.

The Future for the State Level Green Amendment Movement

The US is suffering increasingly severe damage from climate change-driven disasters and faces enormous expenses associated with mitigating and adapting to the impacts. with 2024 emerging as the hottest year on record^[23]. Temperature anomalies exceeded the 2.7° F (1.5° C) limit for 13 out of the last 14 months resulting in 24 weather and climate disasters impacting States with losses exceeding $1 billion during 2024.

Accordingly, the legal environmental developments in states are hailed as landmarks for environmentalists that may serve as a model for similar cases across the country by illustrating the importance of securing constitutional Green Amendments in every state coupled with Superfund laws that mandate the biggest polluters to bankroll climate adaptation efforts.  These measures could strengthen the ability and obligation of government officials and the courts to meaningfully address the climate crisis. And facilitate advocates to fight for essential environmental and climate protections.

Carbon industry groups have already filed the first of an expected wave of lawsuits^[24] against states, with climate Superfund laws in the US District Court for the District of Vermont, claiming that the Vermont Clean Air Act is unconstitutional and the biggest polluters should not bankroll Vermont’s climate adaptation efforts.  The case is USCC v. Moore, D. Vt., No. 2:24-cv-01513, filed 12/30/24^[25].

The U.S. Climate Alliance, a bipartisan coalition of 24 governors securing America’s net-zero future by advancing state-led, high-impact climate action replied

"America’s climate-leading states, […] will not waver in our commitment to confronting the climate crisis, protecting our progress, and relentlessly pressing forward. No matter what, we’ll fight for the future Americans demand and deserve, where our communities, our health, our environment, and our economy all thrive. We will not turn back and we will demonstrate that climate action goes hand-in-hand with economic growth, job creation, and better public health."

[1] https://azgreenamendment.org/
[2] https://forthegenerations.org/active-states/california/
[3] https://forthegenerations.org/wp-content/uploads/CT-GA-Key-Points-2.7.23.pdf
[4] https://forthegenerations.org/wp-content/uploads/DE-Green-Amendment-Talking-Points.pdf
[5] https://forthegenerations.org/active-states/florida/
[6] https://forthegenerations.org/wp-content/uploads/HI-Green-Amendment-talking-points.pdf
[7] https://iagreenamendment.org/
[8] https://forthegenerations.org/active-states/kentucky/
[9] https://www.ncelenviro.org/articles/green-amendments-in-2023-states-continue-efforts-to-make-a-healthy-environment-a-legal-right/
[10] https://forthegenerations.org/wp-content/uploads/2020/02/SD-MD-20200203-MD-FAQ.pdf
[11] https://forthegenerations.org/wp-content/uploads/Michigan-Petition.pdf
[12] https://forthegenerations.org/wp-content/uploads/20240307-PR-NJ-Green-Amendment-Hearing.pdf
[13] https://wildlifeforall.us/new-mexicos-green-amendment/
[14] https://forthegenerations.org/wp-content/uploads/NV-Green-Amendment-FAQs.pdf
[15] https://orgreenamendment.org/overview/
[16] https://forthegenerations.org/active-states/tennessee/
[17] https://forthegenerations.org/active-states/texas/
[18] https://forthegenerations.org/active-states/vermont/
[19] https://wagreenamendment.org/
[20] https://www.conservewv.org/west-virginias-green-amendment/
[21] https://forthegenerations.org/active-states/wisconsin/
[22] https://climate.law.columbia.edu/content/new-york-adopts-nations-strongest-environmental-justice-law
[23] https://news.un.org/en/story/2024/12/1158621
[24] https://www.fastcompany.com/91147898/big-oil-pollution-climate-superfund-legislation
[25] https://news.bloomberglaw.com/environment-and-energy/vermont-is-first-state-sued-over-its-climate-superfund-law