Green Amendments Gaining Ground: What Western Planners Should Know

by Daniel Pava, FAICP

For over 20 years, I implemented the National Environmental Policy Act (NEPA) as a planner at Los Alamos National Laboratory. We would explain to project managers in the context of building things that NEPA, signed into law by President Nixon in 1970, is the very foundation of the federal environmental protection edifice. 

NEPA is essentially classic planning in its process and intent. Sec. 102 [42 USC § 4332]. Begins with the statement, “The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this Act, and (2) all agencies of the Federal Government shall --(A) utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decision making which may have an impact on man's environment.”

When explaining NEPA, I also referred to it as the nation’s environmental constitution. Of course, an act of Congress is not actually part of the U.S. Constitution; however, that is what many state legislatures are considering by making “green amendments” to their constitutions. In fact, Montana is one of a few that have already done so. This trend toward environmental constitutionalism has implications for western planners and could alter how we make general and master plans and decisions at the planning commission and in our local government councils. Green amendments are not part of the similar sounding “Green New Deal,” albeit they share some similar goals.

According to the National Caucus of Environmental Legislators, currently ten states are considering bills in support of a constitutional green amendment. These include my state of New Mexico, where Senate Joint Resolution 3 has been making its way through our citizen legislature. 

According to the National Caucus of Environmental Legislators, “Green Amendments (often called “environmental rights amendments”) …serve to emphasize environmental health and safety as being part of our basic civil liberties. After lawyer and environmentalist Maya van Rossum helped land a legal victory against fracking around the Delaware River watershed, the Green Amendment movement was born, capitalizing on a long-ignored piece of Pennsylvania’s bill of rights. Support for the constitutional right to a clean environment is gaining momentum in other states as well, as legislators are beginning to recognize the power in including such basic, but strong legal language in a state constitution’s bill of rights.”

If Green Amendments seem revolutionary, they are not. Over 50 years ago Congress declared in the preamble to NEPA in Sec. 101 [42 USC § 4331].(a) that “The Congress, recognizing the profound impact of man's activity on the interrelations of all components of the natural environment, particularly the profound influences of population growth, high-density urbanization, industrial expansion, resource exploitation, and new and expanding technological advances and recognizing further the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man, declares that it is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.”

NEPA is implemented by each federal agency according to the rules issued by the President’s Council on Environmental Quality, the Environmental Protection Agency, and each agency’s own guidelines. The law is about the procedures that must be followed to transparently analyze the impacts of federally funded projects. However helpful the examination of federal procedures, many state leaders and activists feel that NEPA has not provided sufficient action or protection. 

According to one of the founders of the green amendment movement Maya K. van Rossum, “For decades, activists have relied on federal and state legislation to fight for a cleaner environment. And for decades, they have been fighting a losing battle. The sad truth is our laws are designed to accommodate pollution rather than prevent it. It’s no wonder people feel powerless when it comes to preserving the quality of their water, air, public parks, and special natural spaces…But there is a solution…bypass the laws and turn to the ultimate authority — our state and federal constitutions.”

According to the National Caucus of Environmental Legislators, “Montana’s usage of the Green Amendment to win a legal battle against a mining company outside of Yellowstone National Park…recognizes and protects the right to a healthy environment in the declaration of rights section of its constitution. The Montana Constitution reads as follows:

Article II, Declaration of Rights

  • 3, Inalienable Rights. All persons are born free and have certain inalienable rights. They include the right to a clean and healthful environment and the rights of pursuing life’s basic necessities, enjoying and defending their lives and liberties, acquiring, possessing and protecting property, and seeking their safety, health and happiness in all lawful ways. In enjoying these rights, all persons recognize corresponding responsibilities.

This Declaration of Rights language is enhanced by the following additional provisions in the Montana constitution in Article IX, Environment and Natural Resources.  

According to the National Caucus of Environmental Legislators, three key legal cases demonstrate the power and importance of Montana’s provision for environmental protection:

Meanwhile, back here in the Land of Enchantment (New Mexico), the proposed constitutional amendment would make clean air, water and land a fundamental right for all residents of the state, both current and future, has cleared its first hurdle with a 7-4 vote February 8, 2021 in the Senate Rules Committee. The Joint Resolution proposes amending the state constitution’s Bill of Rights to recognize and protect the rights of all of the people of New Mexico “to a clean and healthy environment, including water, air, soil, flora, fauna, ecosystems and climate, and to the preservation of the natural, cultural, scenic and healthful qualities of the environment”; to ensure these rights are protected for present and future generations; and to designate all the state’s government officials as trustees of the natural resources of the state constitutionally obligated to “conserve, protect and maintain” them.

According to one of the sponsors, Sen. Bill Soules, D-Las Cruces, the Green Amendment, would flip the default position now in place when establishing legal priorities, and ensure the protection of the environment gets top priority. An article in the Las Cruces Sun Times noted, “The right to a healthy environment is paramount. Without a planet to live on, all other rights are irrelevant,” said Kevin Bixby, executive director of the Southwest Environmental Center in Las Cruces and an advocate for the amendment. Senate Joint Resolution 3 now goes to the Senate Judiciary Committee. If passed by the Legislature, it would still need to be approved by the voters in 2022.

All of this may promote better planning in New Mexico because it could lead to more balance between development and environment, smarter growth, and improved procedures for reviews at the state and local levels.

About the Author
Dan Pava, FAICP is a recently retired from public planning as environmental planner for Los Alamos National Laboratories. He is the past president of Western Planning Resources. He has practiced environmental planning primarily in New Mexico, Oregon and California over his 35 year career. Prior to serving on the Sustainable Santa Fe Commission, Pava was on the Planning Commission and the Santa Fe Railyard Development Review Committee. He currently is principle for the consulting firm Planning Solutions.

Paul Moberly