Different Concepts With Different Impacts But Is One More Powerful?

Green Amendments ~ Rights of Nature ~ Youth Climate Litigation ~ Green New Deal

Green Amendments For The Generations is unique, but some wonder if it is another form of the Rights of Nature movement, ask how it compares to state and federal youth-led litigation seeking constitutional protection of climate rights, or confuse it with the Congressionally discussed Green New Deal. While each of these initiatives are important, they are distinctly different concepts in terms of substance, strategy and impact.

As an environmental advocate and attorney, I can say with absolute confidence that I believe the most powerful, transformational and ultimately successful pathway for prioritizing environmental protection across our nation and for ultimately ending environmental racism, is our Green Amendments For The Generations movement. And so, I continue to be perplexed by the penchant of reporters to overlook our fast-growing national movement.

Rights of Nature, Youth Climate Litigation and a Green New Deal are all powerful and important movements I admire; and they are movements frequently in the spotlight, but they are not movements that are yielding transformational environmental protection.  In addition, they are not movements that bring everybody to the table in the common cause of environmental protection and justice regardless of race, ethnicity, political party, economic status, or generation.

Other movements are generating national opposition and controversy, but even when successful, they will fail to address the wealth of environmental harms our communities face. Our Green Amendment movement is inspiring a new way of thinking and talking about environmental protection.  When successful, Green Amendments provide the legal strength necessary to protect all generations, provide a pathway of ending environmental racism, provide a powerful tool for indigenous communities to protect their sacred lands and natural beliefs, and address the range of environmental issues in need of protection from water, to air, to climate, to ecosystem protection.  At the same time, Green Amendments are inspiring bi-partisan as well as inter-generational support and are advancing the pathway for the systemic change necessary to truly provide environmental justice for all races, ethnicities and economically disadvantaged communities.

Green Amendments as compared to Rights of Nature

The Rights of Nature movement seeks to ensure that nature itself has a right to go to court to secure enforcement of existing environmental protection laws without the need to demonstrate a harmed individual or community. Whether secured through legislation or at the municipal level, rights of nature give nature standing in the courts, removing the need to show that a person has been harmed by the violation of law that is sought to be enforced. The goal of rights of nature is to strengthen the opportunity to enforce the laws that are on the books.  But giving nature rights does not fill the gap where laws are weak or absent.

Green Amendments – i.e., constitutional environmental rights – are people focused and strengthen the ability of people to access the courts to challenge government actions that infringe on their constitutional rights to a healthy environment or to challenge the failure of government to protect natural resources for the benefit of present and future generations.

Green Amendments, unlike Rights of Nature, don’t just strengthen the ability to enforce the current laws on the books, they strengthen environmental protection overall, can fill gaps in environmental protection laws and put in place critical process elements that strengthen environmental justice and the obligation for informed decision-making based in science.

So while Rights of Nature provisions strengthen the ability to challenge violations of the laws on the books, Green Amendments actually strengthen environmental protection by not just enhancing the ability to access the courts when there is pollution and environmental degradation but by strengthening the laws on the books, filling the gaps where laws are missing, increasing the obligations for scientific review and equitable treatment of all people regardless of race, ethnicity or income, and making clear the obligation of government to proactively protect natural resources for the benefit of all people and generations.

Green Amendments as Compared to Youth Climate Litigation.

Youth Climate Litigation provides a powerful pathway for our younger generations to rise up in the courts and demand critical climate change protections.  Cases advancing at the state and federal level are seeking judicial decisions that read climate justice and rights into existing constitutional or legal language.  The problem is, the constitutional and legal doctrines available are not clearly on point, so judges are being asked to stretch and mold legal concepts, language and laws to fit a scenario that they do not obviously cover.  If ultimately successful, the newly molded legal doctrines and interpretations will expand the law to cover climate and provide critical protections.  While these legal actions have inspired a wave of youth environmental activism that is incredibly important the cases themselves are not yielding the legal victories that are so essential for climate and youth justice. Even if successful, there will still remain critical gaps in environmental protection and justice.

By contrast, Green Amendments offer solutions for a wider array of environmental issues from contaminated water, to dangerous toxic releases, to harmful development causing flooding, while also bolstering critical climate change protections. Green Amendments also provide a clear and defined generational focus – recognizing and protecting the environmental rights of future generations.  And the careful crafting of a successful Green Amendment also provides powerful legal grounding for ending environmental racism.

Interestingly, some of the youth climate cases are seeking decisions that would implement the concepts and protections more clearly provided by a Green Amendment. The beauty of a Green Amendment is that we don’t have to hope the judges will read into existing law the kinds of protections that are provided by a Green Amendment but not clearly included in existing statutory, constitutional or common law. A Green Amendment tells the judge how they must read the law if they want to comply with their judicial and constitutional obligations.

For example, among the most powerful benefits of a constitutional Green Amendment is that it creates a trust obligation for government officials which instills fiduciary duties of prudence, loyalty and impartiality.  In practice this means that government actions and decisions must be informed by science and facts, ensures all communities are treated equitably so government can no longer target or sacrifice a single community with repeated environmental harm in order to better protect the interests of another community, ensures equitable generational protection, mandates a focus on prevention of environmental degradation at the beginning of the decision-making process rather than simple management at the end of the process, and mandates environmental protection and equity regardless of race, ethnicity, religion, income thereby ending environmental racism.  In addition, Green Amendments provide protection for all natural resources rather than being limited to a sub-segment of the environment.

In a recent Oregon Youth Climate legal action, the youth urged the state courts to expand the state’s public trust doctrine to include the atmosphere, among other natural resources, and to interpret the doctrine to impose fiduciary obligations in line with those imposed on trustees of private trusts (such as money trusts).   The Oregon Supreme court[1] declined to act on these legal arguments. The court clearly stated:

“We hold that the public trust doctrine currently encompasses navigable waters and the submerged and submersible lands underlying those waters.  We do not foreclose the possibility that the doctrine could expand to include other resources in the future, but the test that plaintiffs urge us to adopt sweeps too broadly.”

“We also decline, in this case, to adopt plaintiffs’ position that, under the public trust doctrine, the state has the same fiduciary duties that a trustee of a common-law private trust would have, such as a duty to prevent substantial impairment of trust resources.”

By contrast, when applying the Pennsylvania Green Amendment, the conservative Pennsylvania Supreme court[2] was clear that the Green Amendment language required the state to comply with traditional trustee obligations and that all natural resources were implicated:

“As a fiduciary, the Commonwealth has a duty to act toward the corpus of the trust — the public natural resources — with prudence, loyalty, and impartiality.“ (emphasis added)

“As trustee, the Commonwealth is a fiduciary obligated to comply with the terms of the trust and with standards governing a fiduciary’s conduct. The explicit terms of the trust require the government to “conserve and maintain” the corpus of the trust. See PA. CONST. art. I, § 27. The plain meaning of the terms conserve and maintain implicates a duty to prevent and remedy the degradation, diminution, or depletion of our public natural resources.”

In New Mexico, like over 40 other states, has a provision that talks about environmental protection within its constitution, but it fails to provide Green Amendment level protection – in short it fails to recognize and protect environmental rights on par with other fundamental rights like speech and religion.  As a result, the effort to use the provision to secure higher constitutional justice for environmental protection missed the mark.  In New Mexico’s climate justice case the state appellate court made clear that because New Mexico’s constitution in Article XX Section 21, similar to other constitutions across the nation, entrusts environmental protection to the legislature, it does not create judicially enforceable and independent constitutional environmental rights. In other words, it is up to the legislature to pass laws that protect the environment, for administrative agencies to regulate in accordance with those laws, and for the public to participate in the legislative and administrative processes; if the public does not like how the legislature is doing that job, “voters have the opportunity to exercise their desire for political change regarding complex environmental issues at the ballot box during each election cycle.”[3]

In the final analysis most states have constitutional language, public trust doctrines and laws that speak to environmental protection, but unless that constitutional language fulfills the criteria that would make it a Green Amendment, it will not provide the highest constitutional and legal protection to all aspects of the environment that are given to the other civil, human and political rights we hold dear.

Green Amendments as compared to the Green New Deal

With similar sounding names, the Green New Deal can be confused with Green Amendments, but they are fundamentally different.

The Green New Deal is a package of policies and economic stimulus activities, programs, investments and goals designed to stimulate and advance good environmental business activities, workforce transformation, and social justice, often with a focus on addressing the climate crisis.

By contrast, Green Amendments are enforceable constitutional rights located in the Bill of Rights Section of a constitution and provide a legally recognized and enforceable right to clean water and air, a stable climate and healthy environments.

The Green New Deal contains aspirational good government programs; the

Green Amendment is enforceable constitutional law.

The failure of government to accomplish the creation and/or passage of Green New Deal programs is a political defeat with no enforceable ramifications; the failure of government to meet the constitutional obligations of a Green Amendment is enforceable, by the people, in a court of law.

Green Amendments are more powerful and protective than other pathways seeking higher level constitutional protection: 

  • Green Amendments strengthen current laws and how they can and should be interpreted, by strengthening the obligation of government officials to consider the science and the impacts of decisions, such as permitting. Government decisions that do not consider the science and impacts can be constitutionally challenged.
  • Green Amendments can add a claim when there is environmental degradation or harm — the constitutional right is a legal claim unto itself; just because government can demonstrate their actions complied with existing law does not mean they have demonstrated compliance with the constitutional obligation.
  • Green Amendments can help fill gaps in the law when it comes to protecting air, water, climate or the environment. In areas of environmental protection where there are no applicable laws, if pollution or environmental degradation is infringing on environmental rights, a claim can be brought that is based on the constitutional right articulated in the Green Amendment. So, there can be a constitutional claim challenging pollution and degradation even if there is no applicable law – the constitutional claim is the legal claim.
  • Green Amendments add strength to environmental justice claims because they create a duty to treat all communities equitably that must be part of the decision-making analysis and assessment.

[1] Chernaik v. Brown, 367 Or. 143 (2020)

[2] Robinson Township, Delaware Riverkeeper Network, et al. v. Commonwealth, 83 A.3d 901 (2013)

[3] Sanders-Reed ex rel. Sanders-Reed v. Martinez, 350 P.3d 1221 (2015)