The Green Amendment Movement is an effort to constitutionally protect the environment, and Maya van Rossum has been leading this charge. Two states have them, most do not, and others are working on it. Andrew Yang recently announced his support for such an amendment at the federal level, which had us wondering: if governments are constitutionally required to provide a clean environment and stable climate, does that obligate their support for carbon removal?
Full Transcript
Ross Kenyon: Hello and welcome to Carbon Removal Newsroom. I’m Ross Kenyon, lead strategist with the Nori Carbon Removal Marketplace. Today I have with me Maya Van Rossum, author of The Green Amendment, Securing Our Right to a Healthy Environment, and the founder of Green Amendments for the Generations. Thanks for being here with us, Maya, or me, I should say.
Maya van Rossum: Thanks so much for having me. I appreciate the opportunity to talk about this important topic.
Ross Kenyon: Yes, me too. We’ve been trying to schedule for a while and we made it happen and came around a good time too with a news hook since I saw that Andrew Yang had mentioned Green Amendments in a very visible kind of way. And we’ll get into that, but maybe we should start at the basics here. What exactly is a Green Amendment? What would it look like? And what is happening with the movement around such a constitutional change?
Maya van Rossum: So a Green Amendment is a provision that gets added to the Bill of Rights section of a constitution and recognizes and protects the inalienable rights of all people, including families. And by virtue of the language that’s in a Green Amendment and the fact that it’s placed in the Bill of Rights section, of the Constitution means that a Green Amendment legally protects the rights to a healthy environment in the same way we legally recognize and protect all those other human, civil, and Now, the same kind of legal strength that protects those fundamental freedoms.
So it’s very, very powerful legally, as well as psychologically and emotionally. Because we all believe in our hearts we have a right to things like clean water and clean air. But the fact of the matter is, here in the United States of America, you don’t actually have those rights because they are not recognized and protected in the Bill of Rights section. Of our state and federal constitutions. There are two states. There are two states where there actually is a Green Amendment. One is the Commonwealth of Pennsylvania, and that Green Amendment just got legal life in December of 2013 as a result of the other organization I lead, the Delaware Riverkeeper Network.
And then there’s also a Green Amendment in the state of Montana. But no other state has a Green Amendment, and nor do we have one in the federal constitutions.
Ross Kenyon: Yes, that’s very interesting. And one of the questions I have on this topic, and we’ve done episodes related to the Green Amendment movement, but nothing nearly so specific as this, is a lot of the amendments forbid the government from Right. Like make no law respecting assembly or religion or the right to bear arms shall not be infringed. But this seems like it’s a way of saying that the government has a positive obligation to provide something. And I guess this is me as not a legal scholar, but it seems like a lot of the fights happen around stuff like the 14th Amendment or cases like the famous Bacon case that happened recently where is there a right to religious freedom or a right to justice?
So how exactly would this work with a Green Amendment? How far does it go?
Maya van Rossum: Well, a Green Amendment operates exactly the same way as those other Bill of Rights provisions that you talked about, like the right to free speech, right? A Green Amendment is a restraint on government action and activity. What a Green Amendment does is the same thing that those other Bill of Rights constitutional amendments do. They say that The right to a healthy environment. These are inalienable rights that we the people have. And we are telling you government that while we are giving you authority to govern us as a people, we are not giving you the rights.
So it actually is a restraint on government action in the same way that Those other fundamental freedoms, those other Bill of Rights provisions are a restraint on government action. And so the way that plays out in reality is if you have a piece of legislation that’s passed, like in the Commonwealth of Pennsylvania, In 2012, there was a very, very pro-fracking piece of legislation that was passed by the Pennsylvania legislature and signed by the governor. And it did all kinds of things. It gave the fracking industry the power of eminent democracy.
It gave them automatic waivers from environmental protection standards that apply to all other industries. And what we did was we used Pennsylvania’s Green Amendment, which actually... At that point, had for 42 years been disregarded by the Pennsylvania courts as being just a statement of public policy. So it was actually robbed of all of its legal strength for the first 42 years that Pennsylvania’s Green Amendment existed. But when this very pro-fracking law was passed, we thought that maybe we were in a moment in time when we could get the Pennsylvania courts to reconsider that bad precedent.
Long story short, what we argued was that this pro fracking piece of legislation went so far that it actually was the government overreaching and advancing the fracking industry in such a way that it would necessarily infringe upon the right of the people of Pennsylvania to pure water, clean air and a healthy environment. And the Pennsylvania Supreme Court agreed with that. And they actually reversed 42 years of precedent. And they said that in the context of this pro-fracking legislation, the government had overreached and as a result infringed upon the constitutional right of the people of Pennsylvania to a healthy environment.
And so that’s why I say that in December of 2013, the people of Pennsylvania actually got their constitutional right to a healthy environment because we created this new powerful precedent where the Pennsylvania Supreme Court said the Pennsylvania’s Green Amendment is a restraint on government action and activity that overreaches and infringes on the right of the people to a healthy environment. If you think about permitting, right, very often environmental laws are written so that they grant permits to industrial operators and polluters and developers to pollute our water, to pollute our air, to harm.
The way you use a Green Amendment in that context is you say that the government... Government’s granting of the permit is an infringement upon the constitutional right to a healthy environment. Now you have to demonstrate, right, that the adverse impacts on the environment are going to be significant enough. That you have a constitutional infringement. But if you can show that, right, then that’s how you use a Green Amendment to say that the government has overreached, has overstepped in granting the permit to this harm. But you also have a context. I just want to mention one other context.
A Green Amendment isn’t just about saying that Through action, government is allowing things to happen that are going to have such significant impacts on the environment that they infringe upon the constitutional rights of people. But you can also have a situation like we have in the conversation. And the government is aware of the very severe contamination by something known as TCE.
Unknown speaker: Thank you so much for joining us today.
Maya van Rossum: The Commonwealth of Pennsylvania has sat on their hands and done nothing to clean up the site. We have a legal action against them that is taking the position right now. And so far, the early decisions coming out of the courts are siding with us that Pennsylvania’s failure to act, failure to fulfill the duty to clean up the contamination at the site, That failure to act is an act unto itself, right? It’s an affirmative decision not to act that is allowing an infringement on the constitutional rights of the people of Pennsylvania.
So that’s how you use a Green Amendment. It is about being a restraint on government. And it’s about challenging government action and inaction that allows so much pollution and degradation to happen that it is overreaching and infringing on the constitutional rights to a healthy environment.
Ross Kenyon: Great. That is a very comprehensive and well-worded answer to my question. I always want to nerd out on this legal theory, despite being such an acolyte in all of it. I do find it very interesting. That makes pretty good sense to me for either on Ongoing or future harms that might be incurred by residents of any states underneath the constitutional amendment such as this. How does it work for something like climate change and specifically for the harm that’s been done in the past? Would a green amendment obligate carbon removal or negative emissions technologies to deal with past emissions?
Maya van Rossum: So I do want to answer two things that you actually just mentioned. You mentioned the National Environmental Policy Act, right, which is about comprehensively considering the environmental ramifications of the decisions that are about to be made before they’re made. Well, a Green Amendment actually puts in place that kind of comprehensive, thoughtful, upfront decision making as part of every government decision that will have environmental ramifications. In other words, right now, right, government engages in decision making, whatever it is, development, industrial operations, the advancement of energy creation, right? And they don’t think about really the environmental ramifications.
They think about their goal of building in this spot or creating energy in this way. It’s only later down the line that environmental protection laws kick in. And then the government says, OK, how are we going to permit? How are we going to manage the pollution and the degradation that is necessarily going to happen because of this decision we already made where we didn’t think about the environmental ramifications? Well, if you have a Green Amendment, in order to be able to survive a constitutional challenge that your bad government decision or action is going to harm the environmental rights, infringe upon the environmental rights of people in a community, the government is going to have to be able to say that they upfront considered the impacts, considered the science, considered the cumulative impacts of the decision, of the action that they were about to take and determined that there There would not be an infringement on the rights to a healthy environment.
And if they can’t show that they did that upfront thoughtful analysis about environmental impacts, then they are not going to be able to show down the line that they did the work necessary to ensure that they haven’t infringed on the constitutional right. And we know this because we’ve actually had cases in Pennsylvania where we’ve challenged permits that government officials have issued for one polluting operation or another and made the argument that the government is unable to defend constitutionally the decision that they made because they didn’t do the work up front to make sure that they weren’t going to infringe on the environmental rights of the impacted communities.
Are siding with us. So we know that kind of cumulative upfront scientific analysis, the kinds of things that you hear about when you think about NEPA, that kind of analysis actually becomes part of the day in and day out work That government officials have to undertake in order to support decisions and actions that are going to have environmental ramifications. And so if you think about that in the climate context, think about how powerful that is, right? Right now, government decision makers are thinking about, do we frack or don’t we frack?
Where do we drill? How do we drill, right? They’re not thinking about if we create energy in this way, what are going to be the ramifications for the environment? What are going to be the ramifications for environmental rights of going down that energy path? Now, because of a Green Amendment, when government officials are thinking about how are we going to create energy, it can’t be presumed that we can frack or drill. They have to think, how can we create energy? And ensure that we are protecting the environmental rights of all the people, including future generations, when we make the decisions about energy creation.
That necessarily takes fracking out as an option and requires that government officials start focusing on those clean energy strategies. To the extent, just like that contaminated site that I talked about, you know, to the extent that somebody can make the case that decisions and actions have already happened that are infringing on the constitutional right to a healthy environment. And I include in a Green Amendment, in a modern day Green Amendment, the right to a stable climate. A Green Amendment could and should get government officials to be thinking about to what extent they have already rendered decisions or are failing to take actions that are resulting in an infringement on the constitutional right to a stable climate.
And then they’d have to remedy it. Exactly how that would play out in terms of Carbon sequestration or the kinds of context that you raise, I can’t tell you absolutely sitting here right now exactly how it would play out. But what I can tell you, right, what I can tell you is if we have a Green Amendment in every single state constitution across the nation and ultimately in the federal constitution that recognizes and protects the inalienable rights of present and future generations, right? To a stable climate, then we will be in a very powerful position to not only change, entirely shift the energy strategy of every state and of our nation, but we will be well positioned to be able to make the argument that government now has to be very proactive about restoring those natural systems that are essential for battling back climate change.
Ross Kenyon: Makes sense to me. I could see textual exegesis of such an amendment leading to carbon removal, but it’s too early to say. And yeah, it makes sense to me that potentially that could be a reading of this law. Which brings me to, well, we’re kind of running out of time a little bit here, Maia, but I want to get your take on Andrew Yang has been talking about a federal Green Amendment. I know a lot of your work has been at the state level. Passing or repealing federal amendments to the Constitution is notoriously difficult in the amount of approval it takes from elected officials.
But it seems like you’ve had more success at the state level. So what do you think of Andrew Yang’s play for it at the federal level and how’s it going at the state level for you?
Maya van Rossum: So I love that Andrew Yang has become aware of our Green Amendment movement and sees the power and importance of it for protecting our environment and for protecting the climate. That was wonderful and exciting. But it’s really, really important, right, that we get all people to recognize that a successful Green Amendment movement cannot, will not and should not begin at the federal level. And in fact, Green Amendments for the Generations, which Which is this new national movement that I’ve been leading these last couple of years. The ultimate goal is to have a federal green amendment, right?
But that’s step number two. We want and need green amendments in every single state country. Constitution across the nation. They are not only more accessible and therefore more likely to be successful, but they are very, very powerful because state green amendments apply to state action. And the states have a lot of power when it comes to the environment and the harmful impacts of environmental decision making that happens at the state level. So we need green amendments in every single state constitution across the nation. We do ultimately want and need a federal green amendment because the only way we’re going to hold Congress and the president and all of our federal agencies accountable for their violations of the inalienable right to a healthy environment is if we have...
We have a federal green amendment. But as you alluded to, if we start there, we’re not going to succeed, right? You need three quarters of the states to vote to pass to support the passage of a federal green amendment. If you were mapping out a successful grassroots strategy to ultimately get a federal Green Amendment, which Green Amendments for the Generations has and does and we are pursuing, you would begin at the states because passing state Green Amendments not only But you are doing the work of laying the groundwork necessary to ultimately get that three quarters support of the states for the passage of a federal Green Amendment.
Right. So we begin at the states. We get powerful protections at the state level. And in so doing that, we’re laying the groundwork necessary to ultimately successfully get a federal green amendment. And we have to be very clear. We want people to understand why. Just having a federal green amendment is not going to be good enough because that applies to federal government officials. Again, there’s a lot of power in the hands of the states when it comes to the environment. So we need state green amendments as well. We need the state and the feds.
Strategically, to be successful, we start with the states and we ultimately seek and secure the passage of a federal Green Amendment. And I have tried to reach out to Andrew Yang while I’m excited that he’s become aware of the Green Amendment movement and is embracing this idea. It really, really is important for him to understand that we need to start at the states. Since we started this Green Amendment movement, we’re having tremendous success. We have Green Amendment proposals actually advancing in four states. New York, New Jersey, Maryland, and West Virginia.
We’ve got green amendments activity, very powerful, strong activity happening in New Mexico, Delaware, and Maine. And I’ve got more than half a dozen other states where I’m speaking with legislators and community members working to figure out how to advance a green amendment in those states as well. And the truth is, in many of those situations, The way it all began was a single person heard me on a radio show or a podcast like this or saw me on television or read about it in the paper and they picked up the phone or they went on email.
Ross Kenyon: Well, if that’s you, listener, and you would like to get in touch with Maya or follow her work, Maya, what might be the best place someone could do so?
Maya van Rossum: If they go to www. forthegenerations.org, they will find me. If they go to www. greenamendment.org, they’ll get to the same place and they’ll find me.
Ross Kenyon: Great. Thank you. I hope someone listening, I hope this is useful for you if this is something that you’re interested in for the state in which you live. This is an interesting topic. There’s a lot more to discuss on it. Maybe we’ll have to have you back on sometime, Maya. I basically Andrew Yang is potentially the first presidential primary candidate who’s mentioned it. Will he be the last? Or are there even more already?
Maya van Rossum: He’s the only one that I’m aware of. But again, what I’m really most interested in right now is I’m most interested in hearing candidates that are running for office at the state level or who are already in office at the state level working to implement. We don’t want to get derailed by a misplaced focus on a federal green amendment first, because that will send the wrong message, right? It won’t be successful or it’s unlikely to be successful. And so that’ll send the wrong message. Everybody will be focusing their energy. We’re already seeing the power of a green amendment in Pennsylvania and in Montana, the only two states where we have them.
So, you know, a lot of good can come from starting with the states.
Ross Kenyon: Oh, sure. I mean, more for the traffic being driven to your website by having someone with such a giant podium even mentioning the phrase Green Amendment. But your point is well taken. Well, thank you, Maya. Thanks for being here. Maya Van Rossum. Check out those websites or her book, The Green Amendment, Securing Our Right to a Healthy Environment. Thanks for being here, Maya.
Maya van Rossum: Thank you, Ross, for having me and doing this important work.
Ross Kenyon: Thank you. And if you like the show, please give us a great rating and review on iTunes or Apple Podcasts, Stitcher. Tell your friends, help get the word out about what we’re doing here. We think it’s important. You probably do too if you’re listening and thank you for doing so.
