Constitutional Green Amendments: Ensuring Protection for Communities, Environment and Economy

Constitutional Green Amendments: Ensuring Protection for Communities, Environment and Economy

As we face a growing climate crisis and communities across our nation face a multitude of environmental challenges – with communities of color, Indigenous and low-income communities being among those hardest hit – people are looking for solutions. Among the solutions most needed is to reframe access to clean, safe and healthy environments from something we strive for to something we are constitutionally entitled to through the passage of constitutional Green Amendments. This reframing does not pit industry and business against communities and the environment – to the contrary, it recognizes they exist on the same playing field and must advance hand in hand.

Green Amendments place the environmental rights of people on par with other fundamental rights we hold dear, such as free speech, freedom of religion, property rights and the right to bear arms. As a result, Green Amendments ensure that natural resource protections are a proactive part of government decision-making, thereby offering greater clarity on the environmental and community impacts of a proposed project or action earlier in the process. Because environmental pollution and degradation are no longer presumed to be an accepted outcome justified by permitting, Green Amendments emphasize the importance of avoiding environmental harms as a condition precedent to securing government approval for a proposed operation or expansion. Especially at the state level, Green Amendments help secure early and more robust environmental reviews that can actually protect industry, developers, and business interests by ensuring they are able to better design and site projects in order to ensure needed approvals, or conversely by protecting them from making significant investments in a project that will not ultimately withstand agency and public review.

By ensuring more well-rounded and timely government considerations of the environmental ramifications of a project, Green Amendments can help businesses avoid costly community opposition or legal challenges that might otherwise advance because of government’s failure to consider and evade avoidable harm. Sometimes this more robust review will result in a “no action” determination, but this decision can come early in the process before irreversible economic or business investment has been made. Additionally, essential protections to the business operations or property rights of others that might result from a new energy or industrial proposal can be identified and implemented. In sum, Green Amendments can help highlight legal, environmental or community hurdles at a time when alternative decision-making is more economically viable because it comes before an irretrievable investment of money, time and resources.

Clean water and air, a stable climate, and healthy environments are essential for supporting healthy lives, healthy communities and healthy economies. When business interests, including energy development, advance in a way that inflicts harmful environmental consequences, the result also yields significant economic consequences for society as a whole, in addition to harming the joyful lives of the communities where businesses operate. To the extent energy creators believe that their work is supportive of environmental and climate protection, while at the same time serving the energy, job, economic and other goals of their host communities and nations, supporting Green Amendments is a powerful way to demonstrate that belief.

While profit and growth is certainly a valid goal of business, good citizenship and stewardship for the communities and environments of which we are all a part is an equal, if not greater value – both from a moral but also a business perspective. We all need clean water and air, a stable climate, and healthy environments to support our healthy lives. When pollution-induced cancer hits a body, it doesn’t matter who you are – whatever your wealth, job, family lineage or political stripes – the consequences are devastating.

In addition to the personal costs, environmental degradation acts as a drain on our communities, economy, work force, and lives. Often the more sound-environmental approach will save money from improved business operations or avoid liability for environmental harm; but it will also attract customers and free, positive media for your operations. Increasingly, the environmental and social ethic of a company factors into investment and purchasing decisions.

Constitutional environmental rights are not about shutting down business operations – they are about getting it right. Don’t misunderstand. For those that will look me up, I’m not pretending to be pro-fossil fuel or fracking. I am not shy about my informed position that continuing fossil fuel extraction, growth and combustion results in too many unavoidable environmental, human health, climate and economic harms to be justifiable. But I do believe in energy creation that can serve our human needs while at the same time best protecting our environment and future generations. I believe that many clean and renewable energy options are available and evolving. And I believe in the ingenuity of scientists, engineers and visionary business leaders to find new ways to reduce the energy footprint. Green Amendments are not an impediment to robust energy creation and growth; they are an incentive to do it in a way that protects human health and the environment while serving energy needs and goals.

The benefits of Green Amendments for ensuring needed environmental protections without preventing economic and industry growth, is being demonstrated in the three states that have Green Amendments: Pennsylvania, Montana and, most recently, New York. As well explained by Pennsylvania Supreme Court Chief Justice Ronald Castille, the Pennsylvania Green Amendment was not intended to “deprive persons of the use of their property or to derail development leading to an increase in the general welfare, convenience, and prosperity of the people.” As he further explains, the “Environmental Rights Amendment [i.e., Green Amendment] does not call for a stagnant landscape; nor … for the derailment of economic or social development; nor for a sacrifice of other fundamental values.” But, according to Chief Justice Castille, it does make clear that “… to achieve recognition of the environmental rights enumerated … necessarily implies that economic development cannot take place at the expense of an unreasonable degradation of the environment.” (Quoted from Robinson Twp., Delaware Riverkeeper Network v. Commonwealth, 623 Pa. 564, 83 A.3d 901, 954 (2013))

Green Amendments are being pursued in multiple states across our nation because of their value for protecting the environment, human health, community quality of life, the economy and for honoring the rights of future generations to a healthy and safe world. In response, the energy industry should not be afraid of constitutional recognition of environmental rights in the form of Green Amendments; it should embrace them as an opportunity to demonstrate a true belief in their own environmental practices and to protect their families and communities.

Maya K. van Rossum is the founder of the Green Amendment for the Generations Movement, Delaware Riverkeeper and leader of the Delaware Riverkeeper Network. She is a licensed attorney in three states – Pennsylvania, New Jersey and the District of Columbia. In 2021, the Green Amendment inspired and supported passage of the first modern day Green Amendment in New York State. van Rossum grew up in the Delaware watershed and lives there today with her family. She is the author of The Green Amendment, The People’s Fight For A Clean, Safe & Healthy Environment (foreword by Mark Ruffalo and Kerri Evelyn Harris).

Chapter 7: Confronting the Climate Crisis

As the Maine effort was first unfolding, questions about how the … Amendment could help address climate change were often at the forefront of the conversation, including how it might impact a potentially game-changing discovery for Maine and efforts to advance clean energy technologies. That discovery, in western Maine in late 2021, was a massive deposit of lithium ore, weighing an estimated eleven million tons and worth approximately $1.5 billion – the “richest known hard rock lithium deposit in the world.”

Lithium plays a significant role in modern society. Its most prominent use is in batteries, not only for cell phones and laptops but now also for electric vehicles—cars fueled by true clean energy… Lithium is also important for solar and wind energy storage. Because of its light weight, combined with its high electrochemical potential, the U.S. Geological Service predicts that “lithium is expected to play a key role in efforts to reduce carbon dioxide emissions that are responsible for global warming.”…

Given lithium’s potential for helping advance a clean-energy, clean car future, would the [Maine] Amendment prove counterproductive by preventing its extraction? Mining laws in Maine already raise questions about the future ability to secure the lithium find for any of a myriad of uses. Would the amendment be an even more unyielding hurdle to harnessing this lithium find for clean-energy progress? Or would it ensure that as we travel into a brighter clean-energy future, we do so in a way that avoids the pitfalls of our energy past?

The proposed Pine Tree Amendment [Maine’s Green Amendment] is not going to prevent clean energy or economic progress—that is not its goal. Instead, it should help ensure that if the lithium extraction happens, it will be in a way that’s protective of the environment—and that avoids costly harms that inflict irreparable damage along the way. Environmentally protective extraction is important not only for the health and safety of all Mainers, but also for the state’s economy. The state’s primary industry is tourism, and ecotourism is nearly twice as popular in Maine as the national average. The [Maine] Amendment would ensure that all these interests are considered, balanced, and protected – not that we repeat history by allowing extractive industries to profit while the rest of us suffer from the many facets and costs of the resulting environmental degradation.

We are at a critical moment in the history of the world. As the UN Secretary-General António Guterres has urgently warned, because of the quickly accelerating climate crisis, we are in “a code red for humanity.”…And climate is far from an equal-opportunity offender: Indigenous communities, along with Black and brown people and low-income communities, are on the front lines of impact due to the increased pollution they are more likely to experience day to day. And it is not just people at risk: All of nature teeters on this same precipice.

Ultimately, future generations will bear the brunt of our lack of effort – or instead will enjoy the safety, security and beauty of our forethought in taking swift and meaningful action to protect our planet. But it is important that, as we address the climate crisis, we do so in a way that does not sacrifice other essential foundations of life. We must protect water, air, native ecosystems and the species that enrich our lives and with whom we share this Earth.

Excerpted with permission from The Green Amendment: The People’s Fight for a Clean, Safe & Healthy Environment by Maya K. van Rossum (Disruption Books; 2nd edition, November 1, 2022).

Author Profile
Founder - Green Amendment

Maya K. van Rossum is the founder of the Green Amendment for the Generations Movement, Delaware Riverkeeper and leader of the Delaware Riverkeeper Network. She is a licensed attorney in three states – Pennsylvania, New Jersey and the District of Columbia. In 2021, the Green Amendment inspired and supported passage of the first modern day Green Amendment in New York State. van Rossum grew up in the Delaware watershed and lives there today with her family. She is the author of The Green Amendment, The People’s Fight For A Clean, Safe & Healthy Environment (foreword by Mark Ruffalo and Kerri Evelyn Harris).

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