For anyone who believes that Maryland’s laws adequately protect the environment and people’s health, state Del. Wanika Fisher has an invitation: Come visit her legislative district.
In District 47B, which lies in Prince George’s County inside the DC Beltway, about 90% of the residents are Black or Hispanic. Many, she said, suffer from ailments related to pollutants legally emitted by the beltway’s traffic, nearby concrete plants, and other industrial facilities.
Among them is Fisher, who has asthma. “I am a Black woman statistic in health,” said Fisher, a 33-year-old criminal defense and personal injury attorney who was first elected to the House as a Democrat in 2018.
The problem is too big to deal with at the statute level, as she sees it. That’s why Fisher is trying to rally her fellow lawmakers around changing the state constitution. Like the U.S. Constitution’s right to free speech or bear arms, an environmental rights amendment would treat clean air and water as a fundamental guarantee, supporters say.
“This bill allows an avenue for people to get justice,” said Fisher, who plans to refile the bill during next year’s legislative session after it was drowned out last spring by COVID-19 relief and police reform efforts. “When you put in the constitution that everyone has a right to a healthy environment, it’s a higher level [of legal power].”
A movement to pass environmental rights amendments, also known as green amendments, is gaining steam in state legislatures across the country. Since the start of 2020, the number of states considering amendments has surged from four to 13, according to Green Amendments for the Generations, a national advocacy group whose sole purpose is to advance environmental rights legislation.
Four of those states lie in the Chesapeake Bay watershed: Delaware, Maryland, New York, and West Virginia. And one of those – New York – is poised to become the first state to adopt an amendment since the heyday of the national environmental movement in the early 1970s. The State Assembly passed the measure by broad majorities in February, sending it to a statewide voter referendum in November for final approval.
Pennsylvania, also in the Bay watershed, passed an environmental rights amendment in 1971. But it spent more than 40 years in the legal wilderness after being hobbled by a court ruling. Legal victories over the past decade have revived and solidified Pennsylvania’s amendment, and environmental rights advocates elsewhere largely attribute the new wave of legislative interest to that state’s success.
Now, it’s a primary model for a new generation of amendment proposals, said Maya van Rossum, the Delaware Riverkeeper and founder of the Green Amendments group.
“What we see is that the more people learn and become aware [of environmental rights amendments], the success is speeding up,” she said. “People are breathing contaminated air and drinking contaminated water. And the climate is changing. I think people have come to a place where they’re recognizing our current system of environmental laws is failing us.”
Despite the New York breakthrough, green amendments face daunting legislative battles in many state capitals, even in Democratic bastions such as Maryland.
There, some on the political left question whether a broadly worded amendment would have enough legal muscle to unstick the state’s most gummed-up environmental problems, from reversing environmental injustice to cleaning up the Chesapeake Bay. Meanwhile, heavy industries and local government groups have attacked the measure as a potential job-killer that would fan a gale of litigation against new factories and housing subdivisions.
“This gives unnecessary authority to courts,” Alex Butler, a policy associate with the Maryland Association of Counties, told a House panel in January. “We don’t see any need for vague language and are fearful of the results if this were to be enacted.”
More than ‘lovely language’
Dozens of states mention environmental protection in their constitutions. But according to legal scholars and environmental activists, only three – Hawaii, Montana, and Pennsylvania – use language toothy enough to bite back at legal and legislative attempts to undermine their objectives.
Those states may make for odd bedfellows politically and geographically, but each took a critical leap beyond their counterparts when enacting their amendments, said John Dernbach, an environmental law expert at Widener University in Harrisburg. By placing the right to a clean environment in Article I of their constitutions as opposed to burying it somewhere below, lawmakers in those states made clear it was no trifle to be brushed aside or ignored.
“When you put an amendment in Article I, those are rights,” Dernbach said. “That is the key. That is what makes it different.”
The inclusion in Article I is as important politically as it is legally, said Martin Siegel, a Chesapeake Legal Alliance board member and former litigator with the Pennsylvania Department of Environmental Protection.
“It’s an important policy statement that environmental rights are basic human rights just like freedom of religion or free speech or the right to bear arms,” Siegel said. “Environmental statutes can be changed by whim of the legislature. It is much more difficult to change the constitution.”
In most states, a bill ordinarily becomes law after garnering a simple majority vote in each chamber, followed by the governor’s signature. Amendments almost always demand more effort.
In New York, for example, amendments must be passed twice by a majority vote in the legislature – once and then again after a new legislature has been seated in the next general election. Then, it must clear a voter referendum. In Maryland, it only needs to win the general assembly’s approval once, but it must claim at least 60% of lawmakers’ votes before heading to a referendum.
Van Rossum first articulated her vision in her 2017 book, The Green Amendment: Securing Our Right to A Healthy Environment, and founded Green Amendments for the Generations two years later to spread the message. According to her own unwritten rules, she will only step in to help with other states’ amendment initiatives when invited. Still, she has consulted with leaders in nearly every state where environmental amendments are on the table and is widely seen as the overall champion of the movement.
She espouses strict criteria for environmental rights amendments: The language must appear in the “rights” section of the constitution, entitle “all people” to a clean environment, and be legally enforceable on its own – without the need for follow-up legislation to interpret it.
To date, she said, only two states meet that bar: Montana and Pennsylvania. New York would be the third.
An environmental rights amendment must contain more than “lovely language,” she added. Without specific provisions that hold a state’s feet to the fire, van Rossum said, “what you’ll see happen is what’s happening to the voting rights legislation. As soon as one state finds a pathway [to gut the law], then all of the other legislatures in all the other states will see that that’s the pathway to follow.
“I won’t let that happen,” she added, “Because this is my life’s work.”
Mining damage leads to change
In Pennsylvania, the 1971 passage of its environmental rights amendment was the culmination of a 60-year fight to curb the excesses of the Industrial Revolution. And it marked the beginning of another battle for its relevancy.
For decades, Pennsylvania’s coal, railroad, and steel interests treated public waterways as their own private sewers. Even as lawmakers passed a “clean streams” law in 1905 and subsequently strengthened it three more times, coal companies continued to be allowed to discharge untreated, acid-laced water into so-called “unclean” waterways.
Legislators finally closed the loophole in 1965. But problems remained. In 1970, acid mine drainage broke free from a pool at a Barnes and Tucker Coal Co. mine in Cambria County, causing a massive fish kill along a 40-mile stretch of the West Branch of the Susquehanna River.
It was against this grim backdrop that a legislative revolution led to the passage of a dozen landmark environmental laws in the state in the late 1960s and early 1970s.
At its center was Franklin Kury, a Democrat representing Montour and Northumberland counties. But as the political tide began to turn in favor of the state’s natural resources, Kury began to worry that future legislators could simply roll back those gains.
“I said, ‘It’s nice to have these bills, but they can be repealed or undermined,’” recalled Kury, now 84 and retired from politics but still an active author and orator. “We needed something more permanent.”
In response, he drafted an environmental rights amendment and championed its enactment. The entire text of Article I, Section 27 consists of just 61 words.
“It just lays out three fundamental principles,” Kury said. “First, the people have a right to a healthy environment. The second is that public natural resources like the rivers and the air belong to all people. And the third principle is the state is the trustee of these resources for future generations.”
But before the amendment could tackle the state’s waste problems, it ran headlong into a judicial roadblock.
“It was kind of given the hypodermic needle by the courts and put to sleep,” Kury said.
Amendment brought back to life
The biggest legal blow to Pennsylvania’s amendment came in 1973 when a state appeals court panel argued that judges must be “realistic and not merely legalistic” when weighing conflicts between environmental and social concerns.
In place of the legislature’s actual wording, the ruling substituted a three-part test. Environmental harm was to be allowed as long as polluters followed state laws and made a “reasonable effort” to minimize it. The state could step in to stop a project only when its harms “clearly outweighed” the project’s benefits to society.
For the next 40 years, the environmental rights amendment was “effectively buried,” Dernbach said. Whenever housing developers, road builders or natural gas companies faced a court challenge, they had little trouble passing the industry-friendly test.
It was natural gas – not coal – that revived the amendment. As hydraulic fracturing or fracking, turbocharged drilling operations in the state’s Marcellus Shale formation, industry leaders lobbied state lawmakers to replace the jumble of local ordinances they had to follow with a uniform statewide framework. The law passed in 2012.
A group of opponents sued the next year, arguing that the state had pre-empted the power of local governments to protect their citizens’ environmental rights. The state Supreme Court upheld their argument, overturning the new state law. The court’s top opinion was partly anchored in arguments that Dernbach had put forward in a law journal in 1999.
“So, if you hear of law professors writing pointless articles for law journals, that’s not always true,” Dernbach said with a chuckle. “It was the first time really the Pennsylvania Supreme Court looked at the [amendment’s] text and tried to figure out what it meant.”
For a technical reason, the amendment wasn’t fully re-energized yet. Because only a plurality of justices had signed on to the environmental rights argument in the fracking case, it fell short of setting a legal precedent. So, it wasn’t until a separate case garnered a full majority in 2017 that the amendment was once again the law of the land.
Almost overnight, the legal landscape changed, Dernbach said.
“It was as if Section 27 had just appeared in the constitution,” he recalled. “Section 27 had been so marginalized that the effect was that dramatic.”
Renewed interest in rights
Although the amendment was crafted at a time when coal mining was Pennsylvania’s top environmental concern, Kury said its broad-stroke language ensures that its powers are applicable even today.
“Now, these three principles can be applied to climate change, oil and gas, and anything in the future,” he said. “If it was too narrow, it wouldn’t have been effective.”
The Pennsylvania court victories have inspired amendment movements in several states across the country. In New York, those wins “breathed life” into an idea that was initially proposed in the legislature in 1997 and went nowhere, said Peter Iwanowicz, executive director of Environmental Advocates NY, the group leading the push there. This year, a measure to send the amendment to a statewide referendum passed by a 3-to-1 margin in the state Senate and a nearly 5-to-1 margin in the Assembly.
“In the last 20-some years, people realized the value of this and have seen bad decisions being made,” Iwanowicz said. “This is its time now.”
Momentum hasn’t ensured success elsewhere, though.
Green amendment legislation has been introduced in Delaware and West Virginia but gained little traction. In Maryland, legislation has been filed in three consecutive sessions — and failed to get past the committee level each time.
“When something is fundamental and so essential and so necessary, you can’t give up,” said Rabbi Nina Beth Cardin, the co-founder of the Maryland Campaign for Environmental Human Rights, the amendment’s primary promoter.
Cardin, the cousin of U.S. Sen. Ben Cardin of Maryland, sees brighter prospects for the amendment in 2022. It’s an election year, so the referendum can be printed on the statewide ballot in November. And it will be about a year removed from the height of the COVID-19 pandemic, perhaps enabling legislators to concentrate on a broader raft of issues, she said.
New York’s progress may help nudge Maryland forward as well, said Fisher, the Maryland state delegate. “I think this will help Maryland and create pressure to move and make constituents reach out that we want to see this on our ballot next year,” Fisher said.
Industry interests fight back
If the green amendment gets another airing in Maryland in 2022, it is likely to face the same strains of criticism that defeated it this year. Like this from Michael Powell, an energy and building sector lobbyist, at the Maryland House’s Environment and Transportation Committee hearing: “This allows anyone to bring suit for just about any reason,” he charged.
Not really, supporters counter. Green amendments define the state as the “trustee” of the environment, experts say. That way, a state doesn’t devolve into a litigious free-for-all, with private parties taking private parties to court, she said. If a person or a group files a lawsuit to halt a new coal mine, for example, they must sue the state or local government that green-lighted its permits — not the coal company itself.
Another critique: Governments not only could be held accountable for the actions they take but also the actions they don’t take. A state could be sued, Powell suggested, for neglecting to take a pesticide off the market: “If you fail to ban that chemical the farmers would use, then a citizen can bring action against the state by that inaction by the state that they claim harmed the environment.”
Siegel, now living in Baltimore, testified on behalf of the amendment. In practice, the Pennsylvania version hasn’t upended government or private industry, he said.
“I feel confident in saying no project will be banned simply because it has one isolated impact on the environment,” he told the committee. “The [Pennsylvania] Supreme Court has made clear it’s a balancing test. But since it’s in the constitution, these environmental rights are fundamental rights, and they have to be treated accordingly by the courts.”
Delegate Kumar Barve, the committee’s chairman and a Montgomery County Democrat, appeared skeptical about the amendment’s worth. In Pennsylvania, Maryland’s neighbor north of the Mason-Dixon Line, fracking remains widespread while farms and urban areas continue to drain large amounts of pollution into waters that reach the Bay, he pointed out.
“I would have to assume that the amendment in Pennsylvania must be pretty weak” if those environmental problems persist, Barve suggested.
Siegel said in an interview that Pennsylvania’s green amendment didn’t shift regulations overnight. But after the courts reinstated their powers in the last decade, environmental officials conducted internal reviews and beefed up their reviews of projects. Project applicants have adjusted as well, doing more to avoid environmental impacts, such as filling in wetlands.
“What you see publicly are the big court decisions,” Seigel said. “What you don’t see are the day-to-day decisions like the Department of Environmental Protection doing a more in-depth environmental review.”
For his part, Kury is looking beyond the state battles to a larger prize: the U.S. Constitution. A federal amendment would bring the benefits of his green principles to citizens in every state and help entrench environmental protections for generations to come, he said.
“We’ve got to put the government as responsible for a healthy environment,” Kury said. “What’s more fundamental than the right to a decent environment?”
This article was originally published on BayJournal.com on Wednesday, July 14, 2021.