Every State Should Have a Right to a Healthy Environment

As my colleague, Angela Guyadeen, recently wrote, a legally enforceable right to a healthy environment, including clean water, can be an effective tool for ensuring access to safe drinking water. We know that race matters when it comes to access to clean drinking water, and such a right could help communities of color level the playing field and protect their drinking water. In this blog, I'll describe some of the nuts and bolts of a right to a healthy environment.

The most effective placement for a right to a healthy environment is in a state’s constitution. There are several reasons for this, including the fact that state constitutions trump state laws, so any state law passed could not infringe on residents’ right to a healthy environment. Also, as we’ve all recently seen, laws can be easily repealed if a prevailing political party deems environmental protection no longer necessary. It’s much harder to change a state constitution. A state policy, proclamation, or resolution is even less protective than a state law. While potentially helpful for advocacy or budgeting purposes, these actions provide no legal “teeth” (a problem that Californians know well) and can easily be reversed or just plain ignored.

Placement within the constitution itself is also important: a right to a healthy environment should sit alongside other fundamental rights. Environmental rights including a right to clean water must also be self-executing, meaning the right takes effect without any additional action, like passing legislation. Whether the right needs to be explicitly recognized as self-executing will depend on state common law and constitutional interpretation. (See, for example, this blog on self-executing constitutional amendments in North Carolina.) Ideally, the right would be enforceable directly against third parties and the government; at a minimum, the right must be enforceable against the government.

A few states currently have a constitutional right to a healthy environment and several more are working to enshrine such rights. Pennsylvania, Montana, and Massachusetts have recognized a right to a healthy environment in their constitutions. Other states including Hawaii, Kentucky, Maine, New Mexico, New York, Oregon, Washington, and West Virginia are in various stages of creating such a right. New York is the furthest along; its amendment is headed to voters this November. While state are leading the way on this front, a federal constitutional amendment was also introduced as recently as 2018.

One of the leading groups in this push is Green Amendments for the Generations. This effort was born out of the Delaware Riverkeeper Network (and subsequently other groups) breathing new life into Pennsylvania's longstanding constitutional right by using it to protect residents against state actions that impinged on that right. Pennsylvania’s amendment is unique in that it holds natural resources in the “public trust,” creating legally defined duties on the part of the state, and thereby protects future generations as well.

Here’s the TL;DR version: Want to create a right to a healthy environment, including clean drinking water? Put it in the constitution, make it enforceable by citizens against the government and third parties, and include public trust language. You can find more details on what these state constitutional amendments should contain here.

A healthy environment, including safe drinking water, is necessary for life. It’s about time states formally recognized and protected our right to a healthy environment.