“[W]ith the passage of Green Amendments in every state across our nation, and at the federal level, we will be putting the strongest legal tool we have in our democracy – our constitutions – to work for the protection of our environment,” writes Maya K. van Rossum.

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The US Supreme Court’s recent decision in Loper Bright Enterprises v. Raimondo continues the Roberts’ Court’s assault on fundamental rights and protections. Where previous decisions undermined essential protections for reproductive freedoms, the right to an abortion, and the right to vote, the Loper decision further strips the authority of Federal regulatory agencies to use science, expertise, and fact-based evaluations to identify, advance, and enforce the laws that protect our health, safety, and environment. 

This erosion of federal agency authority compounds and solidifies the 2022 West Virginia v. Environmental Protection Agency decision, which stripped the US Environmental Protection Agency’s (EPA) ability to prevent air pollution emissions that are advancing our current climate emergency.

The Supreme Court’s hostility to environmental protections calls for a new approach to protecting our environmental rights. We must recognize that – no matter what the court says – we the people have always had the power to take action to protect our fundamental rights. And when we channel that power through the ability of the states to enact environmental protections, we can create real and meaningful change on critical environmental issues. 

Indeed, the states have always had the ability to enact greater environmental protections than the minimum standards the federal government requires. The plain language of most federal environmental laws acknowledges and supports the authority of states to provide a higher level of care. This model of state leadership is part of the structure of environmental power-sharing that underpins environmental legal protections across the country. In the face of a hostile federal judiciary, the environmental movement can combine this model with democratically-enacted Green Amendments to secure environmental protections that require a higher standard of protection. Indeed, this is the path we must now take.

Green Amendments add to state constitutions clear and explicit recognition of, and protections for, the inalienable rights of all people to clean water and air, a safe climate, and a healthy environment. And they ensure that the people have the ability to enforce these environmental rights when government action – or inaction – infringes upon them.

The Green Amendment movement has been advancing this model for over a decade to fully recognize our environmental rights in state constitutions. In fact, today, three states already have Green Amendments that recognize and protect, at the highest constitutional level, the right of people to these essential environmental freedoms, placing them on an equal footing with our other most cherished freedoms such as speech and religion. Twenty more states and counting are on the path to securing the passage of constitutional Green Amendments.

While there are dozens of states who include environmental protections or regulations within the text of their constitutions, their terms often give the power to state legislators to determine whether, how, or to what degree the environment is to be protected. Green Amendments, with their placement directly in the bill of rights and carefully crafted language, ensure that these rights are held by those who have the most at stake – The People. Rather than making slow progress issue by issue, Green Amendments strengthen all aspects of environmental protection in one powerful act.

To be sure, constitutional recognition of environmental rights through the passage of Green Amendments will not be an instant panacea for environmental protection and environmental justice. It will remain up to us to ensure that our governments respect and protect these rights, and we will still need to be vigilant in challenging our governments when they violate them. But with the passage of Green Amendments in every state across our nation, and at the federal level, we will be putting the strongest legal tool we have in our democracy – our constitutions – to work for the protection of our environment.

The Loper decision was a fundamental power grab by the US Supreme Court, seizing for itself the power to determine how to create, implement, and enforce rules carrying out legislative directives on everything from drug safety to financial regulation and environmental protections. The proper response is to seize that power back by proactively enshrining our environmental rights in our constitutions themselves. Green Amendments represent the ultimate expression of democratic decision-making, telling the courts how we expect laws, rules, regulations and decisions to be made, and restoring the courts to their proper place as arbiter of the law, not Decision-maker Supreme.

Throughout our history, the states have often led the way for the recognition, protection, and restoration of our fundamental rights. It was the states that first granted women the right to vote and initiated the end of poll taxes that stripped people of color and others of their right to vote. So too will it be with our environmental rights. Seeking and securing constitutional Green Amendments state by state – and ultimately at the federal level – is our best and strongest response to this moment of federal environmental and democratic unraveling. 

Now is the time to embrace our democracy and to lift up our inalienable human right to clean water and air, a safe climate and healthy environments through constitutional Green Amendment protections.

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