Texas Offshore Wind Energy Framework 2023
Amy Reed
Date Released
October 2023
Texas Offshore Wind Energy Framework 2023 Report Cover

This report is intended to support participation by Texas stakeholders in offshore wind energy decision-making by providing an overview of the most relevant state laws, regulations, and intergovernmental authorities affecting wind energy development offshore of Texas. Texas has not enacted state laws or regulations specifically governing siting of wind energy facilities in its own jurisdiction, but other state policies will influence where and how offshore wind energy and related facilities are constructed and operated in and offshore of the state. 

State Outdoor Recreation Offices Garner Rare Bipartisan Support
Linda K. Breggin - Environmental Law Institute
Environmental Law Institute
Current Issue
Linda K. Breggin headshot

States around the country are establishing outdoor recreation offices to capitalize on a growing trend—Americans are increasingly participating in outside activities that range from fishing to skateboarding to gardening. According to the National Council of State Legislatures, a total of 18 states around the country, spanning the political spectrum, have created these units, known by the acronym ORECs. The states establish their offices using a variety of legislative, executive, and budgeting authorities and house them in varying departments, including those responsible for economic development, parks, and tourism.

Outdoor recreation participation reached a high-water mark in 2022, according to the Outdoor Industry Association. The participant base grew over 2 percent to more than 168 million citizens—55 percent of the U.S. population over six years of age. And the growth occurred across 80 percent of outdoor activity types. OIA also reports that the participant base became more diverse with “increases in participation among Black people, Hispanic people, and LGBTQIA+.”

To be sure, a prime motivator in establishing ORECs is economic. The outdoor recreation industry is big business, constituting 1.9 percent of the gross domestic product in 2021, at $454 billion—an increase of 18.9 percent in its annual rate as compared to 5.9 for the U.S. economy overall. According to Headwaters Economics, the sector is double the size of motor vehicle manufacturing and triple the size of oil and gas development. For some states, such as Hawaii and Montana, the outdoor recreation industry constitutes over four percent of their GDP.

Although ORECs focus on supporting the outdoor recreation industry, advancing conservation is integral to their mission. As a Center for American Progress report explains, outdoor recreation “holds an important opportunity for states, cities, and towns to embrace policies that protect their lands and waters,” as these polices are “linchpins” driving the industry. OIA’s state policy platform reflects this synergistic approach by emphasizing that climate change “poses a significant threat to the outdoor industry” and that a “healthy and growing outdoor industry depends on continual outdoor access for those of all abilities, ages, and backgrounds.”

Similarly, the Confluence of States, a bipartisan organization made up of many of the states that have established ORECs, seeks to provide not only “a platform to grow the outdoor recreation industry,” but to “protect our nation’s wild places and transform conservation into a driver for economic prosperity.”

Nevertheless, CAP, which recognizes ORECs as a “creative” tool for expanding the industry, emphasizes the importance of “conservation and equity as the basis of a strong outdoor economy” and warns that ORECs “would be remiss if they focused solely on tax breaks or business recruitment.”

Furthermore, CAP points out that “while recreation and conservation are very closely aligned, some conflicts remain—particularly in sensitive habitats and surrounding cultural resources.” Accordingly, CAP recommends that “some lands’ primary purpose must remain for conservation and wildlife habitat as opposed to recreation or resource extraction.” Furthermore, ORECs “can help to ensure that recreation is done in a sustainable way, so future generations can continue to enjoy the outdoors.”

The growing number of outdoor recreation participants may help achieve this laudable goal. A National Park Service article recognizes that managing outdoor recreation “is an increasingly complicated challenge,” but concludes that the “silver lining is that more nature lovers enjoying the out-doors means more nature lovers likely willing to help nature.”

And there is research that supports this proposition. Miller, et al., in a chapter in a U.S. Forest Service publication entitled “Outdoor Recreation and Environmental Stewardship: The Sustainable Symbiosis,” conclude: “Based on recent research on the connections between outdoor recreation and stewardship, we suggest that public land managers view recreationists as stewards of, rather than as threats to, the lands they manage.”

Ironically, the number of outdoor recreation participants may increase substantially due to climate change. In a paper published in the American Meteorological Society Journal, Willwerth, et al., observe that participation in outdoor recreation activities is generally lowest on the coldest days and highest on moderately hot days. Consequently, they predict a significant increase in outdoor activities in the future due to fewer cool days and a greater number of moderate and hot days. Their model estimates participation in outdoor recreation “will increase by 88 million trips annually at 1°C of warming.” Not surprisingly, the predicted increase is attributable largely to participation in water sports.

State Outdoor Recreation Offices Garner Rare Bipartisan Support.

States Enact Legal Frameworks to Govern Carbon Capture & Storage
Ethan Shenkman - Arnold & Porter
Arnold & Porter
Current Issue
Ethan Shenkman

According to the latest report from the Intergovernmental Panel on Climate Change, transitioning away from fossil fuels is insufficient to meet climate goals, particularly for difficult to decarbonize sectors that cannot easily make this transition. Under many of the IPCC’s scenarios, technologies to capture emissions before they are released, remove legacy emissions from the atmosphere, and safely sequester the carbon will need to be developed at scale.

The administration agrees. “Drastically cutting emissions across our economy through next-generation carbon management technologies is a critical component of President Biden’s strategy to combat the climate crisis,” said Secretary of Energy Jennifer M. Gran-holm, announcing the latest $2.52 billion in funding under the Bipartisan Infrastructure Law to catalyze investments in carbon capture systems.

But as practitioners in the energy transition space know, incentivizing capital investment in new technologies is necessary but not sufficient. Equally robust efforts are needed to develop workable legal frameworks to facilitate this expansion and steer it in an environmentally responsible manner. Much is being done at the state level, where new laws governing carbon capture, utilization, and sequestration—CCUS—are rapidly evolving. At least 15 states have enacted significant legislation, addressing siting, review, permitting, operation, and liability. These states range broadly from California and Utah in the West to Texas and Louisiana on the Gulf, to North Dakota and Nebraska in the Great Plains, and to West Virginia in the East. This trend can be expected to continue in other states as well.

Developing the law in this area requires contributions from lawyers in multiple disciplines, including property, oil and gas, permitting, corporate, and tax. One of the areas the states are addressing, for example, is pore space ownership. When CO2 is permanently stored underground in deep geologic formations, it fills gaps or voids known as pore space. As oil-and-gas practitioners are aware, it can be unclear which entities possess pore space rights, especially in areas with split mineral and surface estates, which can complicate negotiations between operators, landowners, and mineral rights holders. Multiple states have chosen to address this concern by clarifying ownership of pore space rights.

Siting carbon storage facilities is further complicated by the fact that there could be dozens or hundreds of property owners with claims to pore space rights in a given formation. States have established mechanisms to authorize a carbon storage facility with the consent of a majority or super-majority of pore space owners, while ensuring equitable compensation for non-consenting owners. The specific mechanism varies from state to state, but can include pooling, amalgamation, integration, and unitization.

Some states have also addressed long-term stewardship of these sites, including mechanisms for transferring facilities to state ownership after injection ceases, wells are capped, and the CO2 plume is stable. Some of these laws also establish trust funds and fee mechanisms to defray long-term costs that could be borne by the state.

Another big issue is state primacy for permitting injection wells. Underground injection wells are regulated by the federal Safe Drinking Water Act, implemented by EPA. Underground injection wells for permanent sequestration of CO2 are categorized as Class VI wells. States can obtain primacy for Class VI permitting if they demonstrate their regulatory programs are no less stringent than EPA’s. Many practitioners believe that state primacy will be necessary to develop capture at scale. To date, the agency has only issued Class VI permits for two projects—and none since 2015. Meanwhile, the backlog of Class VI permits pending before EPA has ballooned from 14 to 47 in just the past 10 months.

Only two states have received primacy so far (North Dakota and Wyoming), but this group may soon grow. EPA is expected to complete review of Louisiana’s application soon. Arizona, Texas, and West Virginia have each entered the pre-application phase. In addition, the infrastructure bill appropriated $50 million in grants to help defray the costs of state programs, and Pennsylvania has announced its intention to jump into the fray. Notably, EPA has made clear that state applicants must demonstrate how environmental justice and equity considerations will be incorporated into their permitting programs.

These and other state law developments are captured in the “CCUS Legislative Tracker,” an interactive tool recently released on the Carbon Dioxide Removal Law webpage of Columbia Law School’s Sabin Center for Climate Change Law (https://cdrlaw.org/ccus-tracker/). The tracker, maintained by Arnold & Porter, is designed to assist practitioners, regulators, project proponents, and researchers stay on top of these fast-moving trends.

States Enact Legal Frameworks to Govern Carbon Capture & Storage.

Why Green Amendments Make Sense
Rachel M. Hopp
Current Issue
Parent Article
Rachel Hopp

More than 50 years have passed since the nation embarked on putting the legal architecture in place to provide a healthy environment for all. We did so recognizing an undeniable truth: that our ability to survive, let alone thrive, is tied inexorably to our not poisoning the ecosystems upon which we depend.

Yet despite major improvements, peer-reviewed scientific studies have found that pollution contributes to nearly 200,000 premature U.S. deaths annually, disparately burdens our country’s most socially vulnerable, and poses health risks to all Americans. These facts alone are damning evidence that our regulatory system of environmental protection, while essential and complex, is not enough.

Two main causes for that failure stand out. First, government cannot tackle what it does not bother to see or regulate. For example: most emissions of methane (an estimated 86 percent more potent greenhouse gas than carbon dioxide) are unmonitored and unregulated. Drinking water contaminant levels have been set for only 90-some of an estimated 60,000 chemicals in commerce. Few federal regulations govern the environmental impacts of agriculture. In addition, the United States has yet to phase out single-use plastic production. Few states have closed these and other loopholes or have succeeded in stemming the loss of natural resources to urbanization. Solutions to even well-documented problems, including ground-level ozone, PM 2.5, and “sacrifice zones,” continue to evade.

Second, we cannot hope to close the regulatory gaps by limiting remedies for environmental harms to those expressly provided for in statute. For example, Maryland law recognizes the public’s “fundamental and inalienable right to a healthful environment,” but the courts have declined to recognize the provision as creating actionable rights.

Legislating, of course, is the main process for hashing out difficult societal compromises. But, when government does not occupy the sphere or exacerbates environmental injury to advance other priorities, the experience of three states—Montana, Pennsylvania, and the 2022 Fresh Air litigation in New York—teaches us that enshrining express, self-executing environmental rights in our state constitutions can be critical to securing relief.

This prescription is not a panacea. Even with such a fundamental right, plaintiffs must exhaust administrative remedies, demonstrate standing, and show governmental interference with the right. But, when states fail to fill the voids in our laws, Green Amendments are important tools to prevent harms from continuing to fester. They do this by elevating the scrutiny courts must give state actions (and omissions) that infringe on those fundamental rights.

That elevated scrutiny, whether determined by a court to be strict or intermediate, shifts the burden to the state of justifying the infringement. The state must, in turn, be more cautious and deliberate when crafting and carrying out programs to protect, or that adversely impact, the environment.

Opponents argue that Green Amendments lead to a flood of litigation and allow courts to intrude on the legislative prerogative. These are legitimate concerns. But as the N.Y. State Bar Association concluded in 2017, they are not supported by more than 50 years of experience with Green Amendments.

There are times when the rights of individuals are so self-evident, and have been so infringed-upon by government, that they demand the highest level of enduring legal protection. That time is now.

No one wants to live in a polluted environment or leave an ever-more uninhabitable planet to our children. Yet, despite our societal agreement to protect the environment and enormous effort to achieve that objective, our laws continue to fall short, too often with life-altering, even deadly, effect.

It is time to place the environment on an equal footing with other protected interests and create enduring guardrails for the future, by enshrining the fundamental right to a healthful environment in our state constitutions.

Green Amendments
Maya K. van Rossum - Delaware Riverkeeper Network
Kacy Manahan - Delaware Riverkeeper Network
Delaware Riverkeeper Network
Delaware Riverkeeper Network
Current Issue
Corinthian Capital

It was former Pennsylvania Senator Franklin Kury who famously stated, “Freedom of speech will be meaningless if we suffocate on polluted air.” This statement may at first seem to be glib sarcasm, but given that air pollution is causing many to choke from asthma attacks or die from heart attacks, it is a statement that rings true. A similar reflection and associated anecdote can be made with regards to water pollution, ecosystem desecration, species loss, and, of course, the climate.

For many working to advance environmental protection—whether by grassroots activism, education, or through legal practice—there is a growing perspective that, absent strong oversight or motivation, too many in government or business are unwilling to set aside political, personal, or financial agendas necessary to conserve the natural resources essential for human health, survival, and good-quality lives—much less the health and safety of future generations yet to be born. Accordingly, as resources have rapidly been depleted and degraded throughout the last two centuries, and as the reality of the climate crisis comes into focus, efforts to recognize environmental rights publicly and legally are gaining momentum across the globe.

Last July, the UN General Assembly declared that a clean, healthy, and sustainable environment is a recognized human right; a right so important that it is entitled to high-level government action. In accord with this call to arms, while providing varying degrees of protection—and often unfortunately failing to give environmental rights the same legal standing as other recognized rights—more than one hundred nations, according to the UN, now recognize environmental rights somewhere in their constitutions.

Notably, the United States is not among them. For the most part, in this country, environmental matters are relegated to a legal system focused primarily on data gathering and analysis and subsequent permitting of pollution and degradation. There is rarely a mandate to consider and act upon the compounding effects of cumulative pollution inputs, or to avoid disproportionately and repeatedly foisting harmful environmental consequences on communities of color, Indigenous communities, or low-income communities. It is a system that also allows for gaps and loopholes that advance dangerous industrial operations and the use of toxic substances even absent a rigorous analysis of safety or environmental impacts.

When government actions in the United States affecting the environment are challenged in court, judges are tasked with enforcing statutory language often drafted as a political compromise and where environmental consequences, even environmental racism, have been forthrightly legalized. Ultimately, in this system, courts are frequently compelled to defer to an agency’s determination, even when environmental impacts of challenged government actions are demonstrably harmful or inequitable. In the final analysis, there is no consistent check on government action when this system of laws fails to address a crisis of water pollution, air pollution, toxic contamination, or climate change; has exacerbated environmental racism; or has allowed for the devastation of ecosystems and species.

But there are states pursuing a different path. A growing number are joining the national Green Amendments for the Generations movement. In so doing, these states are leading the way in environmental rights recognition and demonstrating the moral, legal, environmental justice, and generational value of raising up environmental rights so they are given the same constitutional standing as our highest-priority freedoms like speech, religion, and civil rights.

Importantly, a state constitutional environmental rights amendment is not necessarily synonymous with a Green Amendment. Admittedly, while the majority of state constitutions recognize the value of environmental protection within their texts to varying degrees, they are also demonstrating that simple “recognition” does not equate with meaningful protection or the same highest legal regard given to other fundamental rights. The distinction is that this is a level of protection the Green Amendment approach, by definition, does provide. For example, New Mexico’s constitution loftily proclaims that “protection of the state’s beautiful and healthful environment is hereby declared to be of fundamental importance to the public interest, health, safety, and the general welfare.” This language, however, fails to create enforceable individual environmental rights on par with other constitutional rights. Like most states, New Mexico’s constitution merely reaffirms that environmental concerns are to be addressed legislatively and are subject to the same political whims that have heretofore failed to protect communities from major environmental threats.

Upon analysis, while 44 states address the environment in their constitutions in one form or another, only three—Pennsylvania, Montana, and New York—raise up the inalienable, inherent, and indefeasible rights to clean water and air and healthy environments. In the three states, these rights are given highest constitutional, fundamental rights standing like that afforded to property rights and the right to free speech and the free exercise of religion.

In fact, most state environmental rights provisions tend to suffer the same fundamental flaws: they declare environmental rights to be good public policy as opposed to being enforceable rights. They relegate the vindication of environmental rights to the legislative process, where they currently stand, with all of the failings of majority rule. They focus on rights to activities such as fishing, hunting, trapping, or navigation while ignoring life-supporting fundamentals such as water, air, climate, or healthy ecosystems. They fail to raise up environmental rights so they are on par with, as opposed to being subservient to, other fundamental rights like those protecting property and people’s economic expectations. And they fail to ensure environmental rights are inviolate from infringement absent a compelling state interest.

To give the highest constitutional fundamental rights standing, key Green Amendment criteria must be met. Here we turn to the 2017 book The Green Amendment: Securing Our Right to a Healthy Environment. It describes a constitutional provision that meets these essential criteria. A Green Amendment is a self-executing declaration of environmental rights included in a constitution’s bill of rights that equitably recognizes and protects the rights of all people, including future generations, to environmental essentials. Ideally, Green Amendments also create a constitutional obligation for the government to serve as trustee, protecting a state’s natural resources, with present and future residents as the identified beneficiaries.

Including these key elements ensures environmental rights are given the same conservative protection and respect offered to other inalienable rights. For example, as with other bill of rights protections in state constitutions, Green Amendments are a limitation on government authority, protecting environmental rights from government infringement or overreach—as opposed to being a new grant of authority. Like all other states, Pennsylvania’s constitution has a section devoted to specific rights held by the people. As discussed by Chief Justice Ronald Castille in the plurality opinion of the landmark case Robinson Township, Delaware Riverkeeper Network v. Commonwealth, “The Declaration of Rights assumes that the rights of the people . . . are inherent in man’s nature and preserved rather than created by the Pennsylvania Constitution.” The court also ruled that “the Declaration of Rights is that general part of the Pennsylvania Constitution which limits the power of state government.’’ This heightened constitutional standing also reorients government decisionmaking so that environmental impacts, and efforts to avoid them, are an up-front part of the process of government—requiring consideration of cumulative impacts and prevention of harm from the outset of government decisionmaking when it is best able to be avoided or addressed.

The self-executing nature of a Green Amendment ensures that the language defines and guides the interpretation and application of state environmental protection laws and regulations, as opposed to the constitutional right being defined through legislation. A self-executing amendment also allows the constitutional right to be relied upon when there is a regulatory or statutory gap in environmental protection or when implementation of the law is causing disproportionate environmental justice impacts that are technically legal and otherwise cannot be addressed. Green Amendments create a duty of all government entities to respect and protect enumerated environmental rights; the constitutional duty is not limited to the legislature.

Environmental racism is a devastating outgrowth of our system of laws, because the facially neutral U.S. legal system fails to mandate equitable environmental protection and justice for all communities. In contrast, Green Amendments equitably protect the rights of all people regardless of race, ethnicity, tribal membership status, socioeconomics, gender, or geography. As a result, government action that demonstrably causes or contributes to disproportionate environmental impacts on communities of color, Indigenous communities, or low-income communities becomes constitutionally suspect, with the opportunity for an equitable remedy.

The importance of Green Amendment protections for environmental rights and natural resources at both the state and federal level—the ultimate goal of the Green Amendments for the Generations movement—was starkly demonstrated this past year. In a series of cases in its last session, the U.S. Supreme Court made clear that our inalienable, fundamental rights are best protected from governmental infringement—including judicial undermining—when constitutional language recognizing those rights is explicit.

In Dobbs v. Jackson Women’s Health Organization, because the U.S. Constitution “makes no express reference to the right to obtain an abortion,” the Court felt free to overturn 49 years of constitutional recognition and protection. A majority of the justices joined forces to apply a historical analysis and conclude that the right to an abortion is not an essential component of ordered liberty, and thus not protected by the 14th Amendment’s Due Process Clause. By strictly looking to the past—at a time when women were seen as property and medical procedures were rudimentary—the Court eviscerated a right to reproductive health care relied on by Americans, all of whom may be impacted regardless of gender identity. The lack of explicit constitutional language recognizing abortion rights and the right to bodily autonomy left the path clear for this radical judicial activism.

In keeping with the focus on explicit constitutional recognition of rights, the Court relied upon its interpretation of the plain language of the Second Amendment to strike down New York state’s restrictions on carrying concealed firearms in New York State Rifle & Pistol Association, Inc. v. Bruen. In doing so, the Court held that the “plain text” of the amendment protected the carrying of handguns publicly for self-defense. The Court then required the state to prove, through historical analysis, that its regulation of this protected activity was consistent with traditional firearm regulation at the time the Second Amendment was adopted. As demonstrated in this case, the explicit inclusion of gun rights for constitutional protection shifts the burden from a public seeking to protect the entitlement to the government entity seeking to infringe upon it. In short, when a right is clearly spelled out in constitutional language, the government is put on the defensive and must justify any action that infringes upon it.

The third dramatic case of the session solidified the value of constitutional rights recognition in the environmental context. In West Virginia v. Environmental Protection Agency, the Court invalidated an EPA regulation designed to aggressively combat climate change by shifting electricity generation nationwide from coal to natural gas and to renewable energy sources. In large part because of the claimed economic disruption this rule would cause to the power-generating sector, the Court concluded that EPA needed clear instruction from Congress that this sort of disruption was intended in the agency’s efforts to address air pollution under the Clean Air Act. Absent explicit constitutional entitlement, the rights of the people and future generations to healthy environments free from health-harming air pollution and climate disruption were ignored and diminished by the economic concerns of a single industry. Absent explicit legislative or constitutional instruction, the court felt free to reject 40 years of precedent requiring deference to the expertise and authority of a regulatory agency entrusted by Congress with protecting air quality, and instead supplanted the agency’s regulatory authority, oversight, and scientific expertise with the Court’s own policy determination of what was a rational outcome.

The thread through each of these cases is the existence or absence of an explicit pronouncement of a fundamental right that is self-executing, inalienable, and serves as a limitation upon, rather than being defined by, governmental legislation, regulation, policies, programs, and budgets. The Dobbs decision illustrates the risk of asking a court to infer specific rights through interpretation of broader constitutional language—one court’s conclusion may be more easily undermined by another court’s using different reasoning. Bruen emphasizes the strength of a clear and plain declaration of rights, and the steep mountain that the government must climb to overcome the presumption that infringing action is unconstitutional. Sadly, West Virginia once again elevates the familiar hand-wringing of polluting corporations claiming regulatory takings or economic collapse above the viability of future generations, simply because the right to a life-sustaining planet is not recognized in the U.S. Constitution. Together, these cases demonstrate that under our current legal regime, the lack of explicit constitutional recognition leaves our environment at the mercy of politics and the courts.

Having already learned the value of explicit constitutional recognition, three states have constitutional provisions that meet the defining criteria of a Green Amendment and in so doing give environmental rights and natural resource protection the highest constitutional standing—one that cannot be disregarded by politicians or judges. In Pennsylvania and Montana, where the rights of the people to clean and healthy environments have explicitly benefitted from Green Amendment protection for several years, communities have been able to successfully challenge legislation, regulations, permitting, and other government actions that—either procedurally or substantively—failed to give due recognition or protection to the explicitly recognized environmental rights of the people or failed to fulfill a clearly stated obligation of government to protect natural resources for both present and future generations. New York state secured passage of a constitutional Green Amendment in 2021; we will soon see what that state’s heightened constitutional recognition provides.

Although this article discusses Supreme Court case law interpreting the federal constitution, the Green Amendment movement sweeping the nation is carefully crafted by the Green Amendments for the Generations organization to focus on states first. Cooperative federalism is a mainstay of U.S. environmental protection law, ensuring that states maintain a high level of obligation and responsibility for environmental protection, and the right to put in place more protective standards when they desire. In the realm of environmental statutes and regulation, federal law provides a floor of minimum acceptable protections, while states are free to regulate pollution more stringently. In addition, many governmental tools for environmental protection, such as land use authority, are solely within the authority of states. Accordingly, federal preemption of state action taken in compliance with a Green Amendment would occur only on the rarest of occasions.

In addition, constitutional amendments at the state level are undertaken with regularity in response to public demand—as demonstrated by the passage of constitutionally protected abortion rights in three states during the recent election. By focusing on state constitutions first, the Green Amendment movement is securing constitutional standing and stronger environmental protections in the near term at the state level, while at the same time cultivating the public understanding and political support necessary for the three-fourths-of-the-states consensus required for the passage of a federal Green Amendment.

Each state has its own prescribed amendment strategy—generally including a pathway where the amendment is proposed to and must be passed by the state legislature one or two times by varying percentages, ranging from majority vote to three fifths, thereafter bypassing the governor’s office and going straight to the people for approval. Some states include a ballot initiative and still others include a constitutional convention as an option (but generally the convention approach is rejected for fear that reopening the constitution to consider environmental rights opens the door to revisiting the entire document).

A state-by-state approach is also in keeping with the concept that the states are laboratories of democracy, and progressive movements can gain momentum without outsized industry-funded political backlash based on speculation and fear-mongering. The value of this approach can be seen in a different context, that of marijuana legalization. Criminalization of marijuana began in the early 20th century, fueled by fear of immigrant populations and set ablaze by hysteria over the scientifically dubious notion of “reefer madness.” Beginning with California in 1996, however, states began legalizing marijuana for medical purposes—now, only 11 prohibit the use of medical marijuana. Before 2012, no state allowed the sale of marijuana for recreational use. As of this writing, 19 states and the District of Columbia have legalized recreational marijuana, with two additional states having voted in favor of legalization in the 2022 midterm elections.

This state-led momentum has provided the political and empirical support needed to reform federal marijuana laws. In April 2022, the House of Representatives passed the Marijuana Opportunity Reinvestment and Expungement Act, which would remove marijuana from the scheduled substances under the Controlled Substances Act. In October, President Biden pardoned all federal offenses for simple possession and called for governors to do the same. Biden directed the attorney general and the secretary of health and human services to review whether marijuana should remain a Schedule I substance under the Controlled Substances Act. Without multiple successful instances of marijuana law reform in the states, it is unlikely that federal reform would succeed, and it would have been susceptible to the same fear-mongering that led to marijuana criminalization in the first place.

The Green Amendments movement is using a similar approach for introducing the concept of constitutional environmental rights to the public. The commonsense concept that we the people have a birthright to the life-sustaining properties of our planet without undue interference by government is held as a truth by many in the United States. Seeing those rights explicitly recognized by state and local government will have a real and tangible impact on quality of life and will empower the beneficiaries of a Green Amendment to speak to their experience, thereby dispelling bad-faith arguments that would otherwise pose a real threat to ultimate federal adoption of a Green Amendment.

In a time when the human health, quality of life, safety, economic harms, and systemic racial impacts of environmental desecration are well understood, people are looking for options to ensure they are meaningfully heard, and their environmental protection needs are properly prioritized in all government action. They are looking for solutions that are more than just elevating different people to legislative office at the next election. Constitutional environmental rights recognition that meets the Green Amendment definition provides a transformational shift in law, protection, and power—ensuring that when government fails to fulfill its fundamental duty to protect the inalienable human rights of all people to clean water and air, healthy soils, and environments, thriving wildlife and ecosystems, and a stable climate, people have an ultimate, meaningful, and timely say in the final outcome. It is a solution whose time has come, and one that impacts all areas of environmental need in one meaningful declaration. It is a solution that transcends political party affiliation, generation, race, ethnicity, and socioeconomic status—as we are demonstrating in states pursuing this constitutional path.

We have learned from the current Supreme Court that when it comes to environmental rights, language and its constitutional placement must leave no room for doubt that these are self-executing, enforceable rights that belong to the people and are not confined to the limited protections legislators may choose to provide. Clear constitutional language gives the environmental rights movement a better guarantee of permanence in the legal system, the presumption that any government action that infringes upon environmental rights is invalid, and a recognition that environmental rights are at least as important as property rights and certainly more important than economic expectations. That is what a Green Amendment provides. TEF

CROSS-EXAMINATION A necessary protection whose time has come, these additions to state bills of rights are self-executing and enforceable protections for public health and natural resources, and place limits on government actions while creating a duty to foster generational sustainability.

New York First State to Curb Footprint of Cryptocurrencies
Linda K. Breggin - Environmental Law Institute
Environmental Law Institute
Current Issue
Linda Breggin

New York is the first state out of the gate in the race to take regulatory action to address the climate and other environmental impacts of cryptocurrency transactions. The narrowly crafted two-year moratorium applies to permits for facilities that use carbon-based fuel to generate behind-the-meter energy for certain types of crypto operations.

Specifically, the law applies to operations that use PoW, the “proof of work” protocol, to “mine” or create new cryptocurrencies and add transactions to the immutable electronic ledger known as the blockchain. The law finds that crypto mining could interfere with state efforts to achieve climate mitigation goals, protect natural resources, and control pollution.

PoW is a widely used, highly energy-intensive consensus protocol designed to protect against cybersecurity breaches in decentralized peer-to-peer cryptocurrency networks. Transactions (e.g., “A” buys a car from “B” for one bitcoin) are broadcast to the network nodes, computers that check transactions for conformity with network rules—for example, confirming that the inputs have not already been spent.

Nodes then work for the right to add new transactions to the blockchain and be able to win transaction fees and new cryptocurrency. The work performed entails using tremendous computational power to generate strings of characters known as “hashes” until, after a vast number of attempts, a node identifies the correct numbers—those that match the target hash for the block. The average number of calculations required to solve the equation increases as computing power is added to the network. As ELI’s David Rejeski explains: “Solving the puzzle requires guessing, over and over again, so the more computer power you can throw at the puzzle, the better, and that can lead to enormous power consumption.”

This remarkably energy-intensive process has resulted in cryptocurrencies’ global energy consumption equaling that of entire countries such as Argentina or the Netherlands. And just one cryptocurrency, Bitcoin, is estimated to account for between 60 to 77 percent of global crypto-asset electricity usage.

In the United States, crypto asset operations consume an amount of energy comparable to that used by all home computers. A White House report warns that the industry’s energy usage potentially “could hinder broader efforts to achieve net-zero carbon pollution consistent with U.S. climate commitments and goals.”

Although New York’s moratorium is groundbreaking in the United States, entire countries such as China have banned crypto mining operations, citing the need to meet carbon reduction goals. And several Canadian provinces have restricted mining operations, in part to preserve electricity for other purposes such as powering electric vehicles and household heat pumps.

Crypto mining operations contribute to air pollution when powered by fossil fuels. They also produce electronic waste as machines wear out and, in some cases, similar to the handling of much other electronic waste, may be shipped for disposal to low-income communities in other countries. Operations that use water to cool their machines can contribute to thermal pollution in waterbodies. Noise pollution effects are also front and center in communities that host mining operations, where some liken the sound to a jet engine running night and day.

In some communities, crypto mining is also affecting energy bills and service reliability. For example, costs to customers can increase significantly if a utility must buy additional, more costly energy to meet mining operations’ outsized demand—a problem that occurred in Plattsburgh, New York, which became the first U.S. city to halt mining operations.

In response to this panoply of concerns, the Blockchain Industry Association maintains that “the limited scope of the environment impact of PoW blockchains is ultimately outweighed by the enormous benefits that crypto can bring to society.” The association, however, does call on crypto miners “to push adoption of renewables forward” in the United States.

Fortunately, PoW is not the only mechanism for validating cryptocurrency transactions, and far less energy-intensive protocols may be gaining traction. For example, PoS, the Proof of Stake protocol, uses “validators” who provide collateral for the opportunity to be selected to add new transactions to the blockchain in lieu of requiring miners to perform computational work. The association points out that PoS can achieve “more that 99 percent reduction in energy use.”

Although federal, state, and local governments are engaged in a likely protracted process of determining how best to regulate the environmental and other impacts of crypto mining, the New York law is a first step and can serve as a model moving forward.

New York First State to Curb Footprint of Cryptocurrencies.

State Right to Repair Legislation Gains Momentum Across Nation
Linda K. Breggin - Environmental Law Institute
Environmental Law Institute
Current Issue
Linda K. Breggin headshot

State legislatures around the country are considering—and some have enacted—right to repair legislation. The bills take a variety of forms but all aim to address growing barriers to consumers, businesses, and even the military from repairing the products they purchase.

Colorado’s new law makes it easier for consumers and independent repair providers to fix motorized wheelchairs. New York’s Digital Fair Repair Act (awaiting the governor’s signature at this writing) would do the same for consumer electronics. These new right to repair laws are only the tip of the iceberg—the U.S. Public Interest Research Group reports that legislation was introduced in 27 states in the first few months of 2021 alone.

And, in 2020, Massachusetts voters overwhelmingly approved expanding the state’s 2012 landmark Motor Vehicle Owners’ Right to Repair Act to require manufacturers to make telematic data—wirelessly transmitted information generated during vehicle operation—available to independent repair providers. Manufacturers have filed a lawsuit challenging the requirements.

Also on the books are repair-related laws in Rhode Island, Indiana, and California that impose varying requirements on product manufacturers to provide service information and parts.

Repair restrictions can be driven by profit, complex technologies, or intellectual property rights, but the result is the same: owners and independent repair providers increasingly lack the specialized tools, parts, information, and access to diagnostic software needed to repair their products effectively. Planned obsolescence also limits the ability to repair.

State laws are often based on the Repair Association’s model legislation and typically require that manufacturers make available to owners and independent repair providers the documentation, parts, and tools needed for diagnosis, maintenance, and repair. In addition, manufacturers may be required to provide special documentation and parts for disabling and resetting electronic security locks.

Removing repair restrictions could lower the cost of repair and create jobs, but it also could be a sustainability game changer—reducing the environmental impacts of manufacturing new products and disposing of unrepairable ones. For example, Greenpeace estimates over 70 percent of the carbon footprint of personal computing devices occurs during manufacturing.

Repair restrictions not only thwart consumers, but businesses as well. For example, farmers have bemoaned the inability to fix their own equipment. As iFixit’s Elizabeth Chamberlain explains, one manufacturer “restricts a lot of repairs to their dealerships,” which are limited in number. As a result, “farmers around the country report waiting weeks” for repairs “while their crops rot in the fields.”

Right to repair is also taking hold internationally, including in France, which mandates a repairability index for a wide range of products, including cell phones. The ratings are based on criteria such as the availability of parts.

Although an academic study cautions that manufacturers may raise prices to mitigate lost profits, opposition to legislation primarily comes from manufacturers and their associations. Conservative legislators and think tanks chime in as well. Intellectual property rights are a central concern, in addition to cybersecurity risks and potential injuries from repairing or using improperly repaired products.

For example, Competitive Enterprise Institute’s Alec Reinauer warns that requiring manufacturers to “distribute sensitive information regarding embedded software and security functions” may expose consumers to “greater cybersecurity risks.” And American Legislative Exchange Council’s Bartlett Cleland argues that forcing “innovators to hand over, ‘free of charge,’” certain information to independent repair providers “would forcibly divest companies of significant value.”

But scholar Aaron Perzanowski contends that although intellectual property rights claims can be used as “leverage to threaten consumers and independent repair providers with potentially ruinous liability and legal fees,” such claims are “highly contestable in many instances, if not altogether groundless.” Recent laws address at least some manufacturers’ concerns. For example, Colorado law limits their liability for “faulty or otherwise improper repairs” performed by others.

The federal government is also taking action. For example, right to repair is addressed in a 2021 executive order and the Federal Trade Commission recently announced settlements with manufacturers that unlawfully voided product warranties for consumers who use independent repair providers.

As the New York Times editorial board has pointed out, national legislation may not be needed, because a “state law could prove a dam buster,” since parts and repair information can be freely exchanged in interstate commerce.

State Right to Repair Legislation Gains Momentum Across Nation

A Dormant Threat to State Clean Energy, Public Health Programs
Bethany A. Davis Noll - NYU Law
Current Issue
Bethany A. Davis Noll

This term, the Supreme Court is considering a case about the Dormant Commerce Clause—with the potential to curtail state powers to issue rules that favor a certain energy mix along with safety and health standards. How did we get here?

In 2018, California passed a proposition requiring pork sold in the state to be bred by sows that are housed in conditions allowing them to turn around, lie down, and stretch. The National Pork Producers Council challenged the law, arguing that the proposition violates the Dormant Commerce Clause because “its practical effects are almost entirely extraterritorial”—producers outside of California will need to change their breeding practices to sell pork inside the state.

The Constitution authorizes Congress “to regulate commerce with foreign nations, and among the several states.” Courts have interpreted that provision as also saying the negative: interfering with commerce across state lines is illegal—the Dormant Commerce Clause. States have the authority to regulate sales within their boundaries, under their traditional police powers. But when a state restricts what can be sold in its territory based on its geographic origin, that restriction can be judged protectionist and discriminatory, and thereby unconstitutional. Three Supreme Court cases have held that the doctrine also prevents states from regulating outside their borders. The Pork Producers Council relies on this “extraterritoriality” for its challenge.

California has defended the proposition, arguing that the pork producers’ position would vastly expand the extraterritorial doctrine and that this is unwarranted. The Supreme Court has not recognized an “effects” test before this case in using the clause. Instead it applied the doctrine, for example, to a Connecticut rule that required beer sellers to affirm that they were not charging more for beer in Connecticut than in neighboring jurisdictions. Because that rule regulated the prices of beer in other states, it had an impermissible extraterritorial effect.

If state laws that instead just have an incidental effect on a product sold elsewhere are made illegal, as in the pork producers’ argument, that could have wide ramifications. Many state rules necessarily have effects on production and manufacturing outside of their borders. West Virginia has a rule seeking to limit the risk of tuberculosis in cows used for milk sold in the state; Texas has a law prohibiting the sale of horse meat for human consumption; and Arizona and Kentucky, among many other states, regulate lead in children’s toys. In addition, there are many state energy programs that either encourage or mandate a certain percentage of renewable energy for consumption within the state. These laws are all summarized in an amicus brief filed by a coalition of states led by Michigan and Illinois. As those states argue, the pork producers’ case has the potential to “distort” a state’s ability to exercise its traditional police powers in areas that include their energy mix.

Recent lower court decisions addressing Dormant Commerce Clause challenges to state energy rules do not go anywhere near as far as what petitioners are seeking in the pork producers’ case. For example, recently in NextEra Energy Capital Holdings v. Peter Lake, the Fifth Circuit invalidated a Texas law that allows only existing owners of Texas transmission lines to build new lines there. But that case was about a law that “discriminates on its face,” not about the effects of the law.

The U.S. Department of Justice filed a brief on the side of the pork producers, arguing that the California proposition impermissibly seeks to change practices outside of that state and has “no genuine health-and-safety justification.” DOJ spends a page attempting to explain that state clean energy programs are distinguishable because they “legitimately aim to address harm to persons or property in the state.” And there is a reason to believe that they are distinguishable. As the aforementioned amicus brief explains, state clean energy programs have the goals of diversifying the state’s energy mix, reducing pollution, and spurring economic development. Regardless, the new application of the extraterritoriality doctrine sought by petitioners is a vast expansion of the Dormant Commerce Clause’s reach and presents a threat.

In the end, it is not obvious which way the Supreme Court will go in this case. It pits California and animal rights advocates against a trade association—and a conservative Supreme Court would ordinarily seem to favor the last. But there has not been an extraterritorial case in the Supreme Court since the 1980s, and at least two justices disfavor it. Clarence Thomas wrote that the Dormant Commerce Clause is “over-broad and unnecessary” and makes “little sense.” Neil Gorsuch wrote in a concurrence that it isn’t clear whether the Court should have the power to “invalidate state laws that offend no congressional statute.” Whether that is enough to aid California in this case and neutralize the risk to state programs is yet to be seen.

A Dormant Threat to State Clean Energy, Public Health Programs.

ECOS to Prioritize Infrastructure, Environmental Justice, and PFAS
Linda K. Breggin - Environmental Law Institute
Environmental Law Institute
Current Issue
Linda Breggin

Ben Grumbles, the executive director of the Environmental Council of the States, is taking the helm in a period marked by entrenched challenges but also fresh opportunities. Grumbles is charged with finding common ground and giving a collective voice to ECOS members—the state and territorial environmental agency leaders, who hail from states led by 28 Republican and 22 Democratic governors (prior to this fall’s elections). While the political landscape remains sharply polarized, a respite from congressional gridlock has emerged in the form of record federal funding—in both the Infrastructure Investment and Jobs Act of 2021 and the Inflation Reduction Act of 2022—to address climate change.

Grumbles is arguably better positioned than many environmental lawyers to convene state agency leaders, having served as the head of two state agencies and a major federal environmental program, among other positions, over the last several decades. In an interview, Grumbles explained that he was motivated to take the ECOS leadership position because he has observed “the power of a unified state voice to advance environmental protection and public health” and to “shape the national environmental dialogue.” Grumbles says it is his “personal goal” to ensure that ECOS remains a “purple and green” organization that does not become a “blue and red” balkanized group—a goal he views as particularly important given the central role states play in administering and enforcing many of the nation’s environmental laws.

For now, however, front and center for ECOS is what Grumbles refers to as a “once-in-a-generation investment not only in infrastructure but climate and equity.” He is cognizant of the tremendous “responsibility” and “increased expectations” placed on state environmental leaders for ensuring that infrastructure investments are made wisely.

In pursuing these “unprecedented opportunities,” Grumbles wants to ensure that states protect against “fraud, waste, and abuse” and deliver funds in “equitable and accelerated ways.” In addition, he says it is critical to take the long view and invest in lasting projects that “don’t fall apart in a few years,” when states need to secure sustained funding.

To achieve these goals, he observes that states will need to prioritize recruiting talented staff. He emphasizes that this will take “more than lawyers, scientists, and engineers,” but also communicators, community facilitators, and accountants, for example, who can effectively manage the funds.

A geographically diverse, bipartisan ECOS Infrastructure Workgroup is focusing on providing input to the federal government on how to make the best use of congressional funding. ECOS is also establishing “a cross-cutting Climate and Energy Workgroup focused on continued integration of energy and climate policy into core environmental programs.” Grumbles points out that many states now have dedicated staff who work on energy policy, some of whom are housed in environmental agencies.

He acknowledges that states vary in their climate mitigation goals and approaches, but he underscores that ECOS members agree that “collectively, states can find common ground” and provide “meaningful and impactful” comments to federal regulators, as well as share best practices. He singles out resilience and adaptation as a likely focus for the climate workgroup, noting the growing number of states that have hired chief resiliency officers.

Another ECOS priority is environmental justice, because “how EJ is integrated into state programs is highly important.” Grumbles notes that although some approaches, such as new Title VI requirements in Clean Water Act and Clean Air Act permits, may not have uniform support among ECOS members, environmental justice is a “growing priority” for most. An ECOS Environmental Justice and Title VI of the Civil Rights Act Workgroup is currently focusing on facilitating discussions among state and federal partners.

Grumbles also identifies per- and polyfluoroalkyl substances as an ECOS priority. The ECOS PFAS Workgroup web page explains that “the increasingly complex landscape of federal and state activities is making it harder for each state to address its citizens’ concerns about PFAS risks.” Consequently, the Workgroup is “helping states communicate and coordinate with EPA, other federal agencies, and each other about scientific and policy developments, newly identified sources and exposure pathways, and best practices for investigation, corrective action, and public engagement.” To this end, the ECOS fall meeting included a roundtable and a discussion on “New Directions in PFAS Risk Communication Amid Tightening Standards.”

Never short on enthusiasm, Grumbles says that he is “having a blast” and is committed to achieving “real progress with great urgency.” He will need that positive energy to navigate the challenges and opportunities that lie ahead for ECOS’s chief executive.

ECOS to Prioritize Infrastructure, Environmental Justice, and PFAS.

Greening State Constitutions
Jeremy Cox - Bay Journal
Bay Journal
Current Issue
Greening State Constitutions

For anyone who believes that Maryland’s laws adequately protect the environment and people’s health, state delegate Wanika Fisher has an invitation: Come visit her legislative district.

It is numbered 47B and lies in Prince George’s County inside the D.C. Beltway. About 90 percent of the residents are Black or Hispanic. Many, she said, suffer from ailments related to pollutants legally emitted by the highway’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 Maryland 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 to protect environmental rights. As with 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 dedicated to advancing 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 a green 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 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 green 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.”

Momentum hasn’t ensured success everywhere, 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. 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 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 of Delegates panel in January. “We don’t see any need for vague language and are fearful of the results if this were to be enacted.”

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.

Each of those states 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 percent 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. She has consulted with leaders in nearly every state where amendments are on the table and is widely seen as the overall champion of the movement.

Van Rossum 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.”

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. 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 Company 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. Second is that public natural resources like the rivers and the air belong to all people. And the third principle is that 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. 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 amendment’s actual wording, the ruling substituted a three-part test. A project had to comply with all laws and regulations. But environmental harm could still be allowed as long as polluters 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 preempted 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. 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. Almost overnight, the legal landscape changed, Dernbach said. “It was as if Section 27 had just appeared in the constitution,” he recalled.”

Although the amendment was crafted at a time when coal mining was Pennsylvania’s top environmental concern, Kury said its broad-strokes 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, though an uphill battle remains. For his part, Kury is looking beyond the states to a larger prize: the U.S. Constitution: “The government [is] responsible for a healthy environment. What’s more fundamental than the right to a decent environment?”

This article first appeared in the Bay Journal, ©2021 by Bay Journal Media. Republished with permission.

TESTIMONY Activists and lawmakers are leading the charge to amend state charters to protect environmental rights. Pennsylvania is one success story — but the road to green amendments won’t be easy.