Some states have a constitutional “green amendment” that declares that state residents have a right to a healthy environment. Can these modifications be used to challenge policies that increase car-related pollution?
The seven state constitutions include the “green amendment,” which states that citizens of the state have the right to a healthy environment. For example, the New York amendment stipulates that all New Yorkers have the right to clean air and water, and have a healthy environment.
Only three of the seven “Green Amendment” states (Pennsylvania, Montana and New York) have allowed private citizens to sues the government to stop environmental harm. The New York amendment was enacted just four years ago, resulting in most Green Amendment lawsuits in two other states. Successful Green Amendment Litigations in Pennsylvania and Montana generally address extractive issues (such as gas drilling) or procedural issues (such as whether the state can limit environmental reviews related to certain types of pollution). But reading the Pennsylvania and Montana incidents made me wonder. Is there a way to apply green fixes to land use and transportation issues?
“Compelling National Interest”
In a 1999 Montana Environmental Information Center vs. Environmental Quality (MEIC) case, the plaintiffs alleged that the state’s license to mining companies violated the Montana amendment by allowing the discharge of groundwater containing high levels of arsenic and zinc in two state rivers. However, state law specifically allowed these discharges based on the findings that “there is a low probability of harm to human health and the environment causing meaningless changes in water quality.”
The Montana Supreme Court initially stated that the right to a clean environment created by the amendment was a “fundamental right” and therefore could be violated only if the state establishes persuasive national interests. [justifying its action] And that their actions are closely coordinated to realize their interest. “Applying this rule, the court found that the discharge would have “added known carcinogens such as arsenic at a concentration greater than the concentration present in the containment water.” The court then remanded to the lower court for a discovery as to whether persuasive state interests justified these emissions.
This suggests that almost every potentially harmful change in the law is likely to cause strict scrutiny. For example, let’s assume that the city will tear the lane of the bike and reduce cycling. When this policy pushes people into cars, automotive-related pollution increases, and therefore forces the state to find “persuasive national interests” that justifies change.
Or suppose the state will build or expand downtown highways, drive out city residents, and open up suburban land for development. Both highways strip cities of housing and encourage suburban development, making it more likely that state citizens will move to suburban areas that rely on cars. Thus, the expansion of highways could also increase car-related pollution and again trigger a “persuasive state benefits” test.
Or downzone the areas that cities are most walkable and likely to pass through, ensuring people are forced to move from those areas to areas that are priced and cheaper and more car-dependent. Again, local government decisions are likely to increase automobile-related pollution, leading to a “persuasive state benefits” test.
That being said, all of these possible cases require fact-specific findings by the court. For example, the government might argue that removing highways or bicycle lanes actually reduces pollution by reducing congestion. The court must rule whether the claim is plausible enough to support the finding that the government’s policies in question do not increase pollution.
“Unjustly”
Interpreting the Green Amendment of Pennsylvania’s Law is a little less clear than Montana’s law. Some Pennsylvania decisions suggest that the Green’s amendment is only violated if the government acts unfairly.
Meanwhile, in the 2013 Robinson Township, Pennsylvania v. Federal incident, the state tried to preempt local zoning restrictions restricting natural gas drilling. The court recognized that the state had “persuasive policy debate” for the purposes of the law, but nevertheless found that many sections of the law were in violation of Pennsylvania’s Green Amendment. The court explained that allowing natural gas drilling across the state would “change existing expectations of communities and property owners and significantly reduce the natural and aesthetic value of the local environment.”
Therefore, the court found that even policies supported by the interests of the rational state were invalid if they disrupt “the quality of the environment.” So, if my hypothetical road expansion or removal of bike lanes destroys quality of life by increasing air pollution, opponents of these policies may also make a point under Pennsylvania law.
In short, there is no significant environmental amendment lawsuit yet to challenge policies that challenge challenging challenging policies that increase car travel or block non-car travel. However, such cases could be successful if supported by evidence of strong environmental impact.
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