How Green Is Your Constitution?

An Ashland legislator has introduced a constitutional amendment on environmental rights that could empower Oregon activists

On Feb. 10, the U.S. The Ninth Circuit Court of Appeals declined to re-hear Juliana vs. U.S., a case that argues that the federal government is complicit in climate change through its policies and actions. This has violated the youths’ constitutional rights to life, liberty and property, the plaintiffs argue, and they say the government has failed to act as a public trustee of natural resources. 

But legislation proposed by state Sen. Jeff Golden (D-Ashland) could let voters instead of the courts decide whether people have explicit environmental rights in the Oregon Constitution and help the Juliana case in its long-term goal to halt climate change. 

The bill is inspired by the Green Amendment movement, started by environmental writer and lawyer Maya van Rossum. But the legislation has a long road ahead: The Legislature might wait on voting due to other pressing issues, and since the bill refers the matter to an election, voters would have to approve it as soon as November 2022.

The Green Amendment movement encourages states to adopt constitutional amendments with environmental rights as a way to battle the climate crisis. Our Children’s Trust, the nonprofit behind the Juliana case, focused on suing governments over the constitutional rights of youths. Such an amendment would have a lasting impact on environmental policies, though an attorney for the nonprofit says it could take litigation to enforce it. 

Golden introduced Senate Joint Resolution 5 because he says his generation has over the past decades “hammered the environment really hard.” He adds, “In almost every aspect of environmental health, we are handing the next generation ecosystems that are more degraded and less sustainable than when we got them.” 

To reverse this trend, he says, “We’ve got to give our rights to a clean environment parity with other rights. Personal property rights, corporate rights, some of our civil rights, those tend not to be eroded when they’re well protected,” he says. 

SJR5’s language says the people of the state have the right to a clean and healthy environment, including pure water, clean air, healthy ecosystems and a stable climate. It adds that the state shall not infringe upon these rights, by action or inaction, and the state shall serve as a trustee of all the natural resources. 

 Because it’s a constitutional amendment proposal, if the bill passes the Legislature, it would be referred to the next general election. If passed this session, voters would vote on it November 2022.

Golden says he learned about the movement to have environmental amendments in state constitutions at an event by van Rossum, chief executive officer of the Pennsylvania-based environmental nonprofit Delaware Riverkeeper Network. 

On March 29, 2012, van Rossum and Riverkeeper filed a lawsuit in Pennsylvania that led to that state’s Supreme Court recognizing the state’s environmental constitutional rights. In 2013, the Pennsylvania Legislature passed a pro-fracking bill called Act 13 that she says weakened environmental protections. So she and Delaware Riverkeeper sued, citing the state’s constitutional amendment, which she says had been treated by previous courts as a policy statement. “We used as our primary argument that the implementation of that law would result in a violation of that long ignored constitutional environmental rights protections,” she adds. 

In the court’s opinion, the conservative Chief Justice Ronald Castille acknowledged environmental rights in the constitution, saying previous court rulings were wrong to refer to the amendment as a policy statement, she says.

After the court victory, van Rossum wrote a book, The Green Amendment: Securing Our Right to a Healthy Environment, and founded the Green Amendment for the Generations movement. “The beauty of the Green Amendment is that it really helps box in the courts. Not that they can’t misinterpret the amendment,” van Rossum says, “but because the language was so clear, when you’ve got justices with integrity, they’re forced to read the language the right way.”

Van Rossum says she hopes to see all 50 states with environmental rights in their constitutions, which would lead to the big fight: having at least three-fourths of the states vote to amend the U.S. Constitution. 

In Oregon, the fate of SJR 5 is uncertain. Golden says he’s not sure if the Legislature will vote on the proposal this legislative session — legislators have to deal with COVID-19 relief, the budget and other big issues. But he’s been asking for a hearing on the Energy and Environment Committee (Sen. Lee Beyer of Springfield is the chairman) and doesn’t want the language amended. 

Although the Legislature has big issues to tackle during the 2021 legislative session, Golden says he didn’t want to postpone the introduction of this bill for the next session. “I think we’re in the 11th hour,” he says. “Why introduce this when we have so many other problems? If I waited two more years, it would be two years longer to pass it.” 

In a state without campaign contribution limits, Golden says he expects a ballot measure would attract mudslinging money from development and extractive industries, but he adds he has hope in Oregon’s organizers to combat that corporate money to get turnout in favor or the amendment. 

If Oregon voters approve the amendment, it could help lawsuits filed by groups like Our Children’s Trust. Nate Bellinger, a senior attorney at the nonprofit, says though they argue that the people already have these environmental rights in the state and federal constitutions, if Oregon had an explicit amendment, it could be persuasive for a federal judge — but not binding law. However, like the Pennsylvania amendment, court litigation might be needed for clarification. 

Bellinger says the road ahead for Juliana vs. U.S. could lead to an appeal to the Supreme Court, and the plaintiffs are also hoping to sit down with the Biden administration to hash out settlement options. Bellinger says the upside for President Joe Biden is that working with the Juliana plaintiffs could give his executive orders some legal backing that could help prevent a future administration from voiding it.

The issue of subsequent administrations clashing with previous administrative decisions is the downside of recent “whack a mole” environmental action, such as protecting one river or forest or stopping a power plant, he says. Our Children’s Trust has focused on constitutional rights, so an Oregon environmental amendment would weather changes in state political leadership. 

“When you’re talking about constitutional protections, those persist across administrations, so it’s important to start thinking about these as constitutional rights for Oregonians and other citizens,” Bellinger says. “I think this could help with that effort.”

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