The Supreme Court of the United States in West Virginia vs. EPA rejected nearly 40 years of precedent requiring courts to respect the expertise and authority of a regulatory agency appointed by Congress to implement law.
Instead, the Supreme Court went to great lengths to undermine the authority of the Environmental Protection Agency and its efforts to advance common-sense regulations that could limit health-damaging emissions. and climate change from existing power plant operations.
In doing so, the court has most certainly condemned our country’s communities and future generations to the growing devastation of unchecked environmental degradation and climate devastation; including deadly wildfires, heat waves, floods, drought, damage to human health and severe economic losses caused by a growing climate crisis.
For many, the West Virginia decision has highlighted a fundamental flaw in our legal system with regard to environmental protection.
Without a constitutional framework, foundation and control, environmental protection and justice are easily undermined by the vagaries of a political system where the desire for political power, misplaced ideologies and/or simple greed routinely overwhelm the public good. ; where society ultimately has no meaningful control over the abuse of legislative or executive authority other than protest or the next election; and where an activist court can freely deny even the most basic protections needed, like the ability to drink clean water, breathe clean air, and enjoy a livable climate.
In this system of laws and governance, where corporate interests have greater access to power and political influence than individuals, we have become a nation focused on legalizing pollution and degradation through environmental reviews and permits. Federal laws such as the Clean Water Act, Clean Air Act, Endangered Species Act and their state counterparts do not prohibit environmental damage, they simply require the appropriate reviews and/or approvals from the agencies that will oversee and manage it. .
And in the very act of claiming to regulate, rather than prevent harm, this system has created a presumption – even an expectation – that it is a right of business and government to pollute and degrade our environment regardless of the destructive effects on health, safety and economic repercussions.
Moreover, accidental and intentional deficiencies allow dangerous industrial operations and the use of chemicals to progress with devastating consequences for the well-being of people and our environment. It is the failure to legislate or regulate the use of per- and polyfluoroalkyl substances that have allowed this man-made family of cancer-causing chemicals to contaminate the drinking water supplies of approximately 200 million people nationwide.
And when implemented, this system, like so many other aspects of our society, has an inequitable impact on communities of color, Indigenous communities, and low-income communities.
SCOTUS decisions back up a lesson in green amendment
The same Supreme Court asserted that the failure of the US Constitution to specifically mention and enumerate women’s right to bodily autonomy, including abortion, meant that it did not exist. The court then removed 50 years of precedent and protection for the right of women, as well as transgender and non-binary people concerned, to control their own bodies and lives in Dobbs v. Jackson Women’s Health Organization.
On the other hand, the explicit recognition of the right to bear arms was used by this same tribunal in New York State Rifle & Pistol Assn vs. Bruen to repeal common-sense gun regulations essential to protect children in school, families at grocers and people celebrating in parade.
To be protected, rights must be explicit
In these cases, there is a lesson to be learned. To transform our current system and provide essential environmental protection, environmental justice, and a secure future for all generations who will inherit the earth, we must elevate environmental rights to the highest constitutional level at the state and federal levels.
To do this, the Supreme Court was very clear in the Dobbs decision, just as state-level courts have been clear when interpreting state constitutional language regarding the environment — the rights you seek to protect must be explicitly stated in plain language. A court decision that infers the existence of environmental rights by interpreting vague constitutional language is likely to be overturned, as is the roe deer decision was overturned Dobbs.
When it comes to environmental rights, the wording and its constitutional location should leave no doubt that they are self-executing and enforceable rights that belong to the people; and are not limited to the limited protections legislators may choose to provide.
Anything less will leave our environment at the mercy of politics and the courts. We need green amendments, with their placement in the bill of rights and clear language protecting everyone’s rights to clean air and water, a stable climate and healthy environments.
The time for the green amendment has come
The Green Amendments provide an explicit and unequivocal mandate to protect environmental rights with equal legal vigor, guided by the same constitutional mandates, given our most valued fundamental rights and freedoms, such as freedom of speech, freedom of religion, property rights and gun rights. . The clarity of direction provided by the Green Amendments leaves little room for anti-environment activism in any branch of government.
Three states already offer this highest green amendment protection for environmental rights and natural resources: Pennsylvania, Montana and, starting in 2021, New York.
Right now, green constitutional amendments that protect everyone’s rights to a clean, safe, and healthy environment are moving forward in states across our country. Among the states with active green amendment campaigns are Delaware, Hawaii, Maine, New Mexico, New Jersey and Washington.
This growing green amendment movement is changing the nature and basis of environmental protection from a power of politicians to a right of the people.
This article does not necessarily reflect the views of the Bureau of National Affairs, Inc., publisher of Bloomberg Law and Bloomberg Tax, or its owners.
Maya K. van Rossum is the founder of the Green Amendment for the Generations Movement and leader of the Delaware Riverkeeper Network. She has been responsible for the successful adoption of green amendments in New York, Montana and Pennsylvania.