On February 11, 2019, thirty-two West Virginia legislators — all Democrats — introduced Resolution 25 in the West Virginia House of Delegates. The Resolution called for an amendment to the West Virginia Constitution creating a right to clean air, pure water, and the preservation of the natural, scenic, historic, and aesthetic values of the environment. Modeled on a similar amendment in Pennsylvania, the “Green Amendment” declares that these public natural resources are the common property of the people and appoints the State of West Virginia as trustee of those resources. These declarations would have sweeping legal consequences if the Green Amendment is adopted.

The Green Amendment reads like this:

The people have a right to clean air, pure water, and the preservation of the natural, scenic, historic, and esthetic values of the environment. West Virginia’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the State shall conserve and maintain them for the benefit of all the people.

It was referred to the House Agriculture and Natural Resources Committee from which it did not emerge during the 2019 regular session. That Committee was co-chaired by Del. Roy Cooper and Del. Martin Anderson, both Republicans.

The Green Amendment will be re-introduced in the upcoming general session. Eastern Panhandle Delegates John Doyle, Sammi Brown and Isaac Sponaugle are among the co-sponsors. The Resolution will once again be referred to committee, where its future is uncertain.

According to Article 14-2 of the Constitution, the Green Amendment must be reported out of committee and then supported by two-thirds of both the House of Delegates and the Senate before appearing on the ballot in November.

The Green Amendment would substantially change the legal landscape regarding environmental rights and law. Presently, any rights to environmental cleanliness are created by statute or regulation. For example, DEP regulations now govern the amount of various chemicals that are permitted in our drinking water. The determination of what is permissible is heavily influenced by the industries that are affected by the regulation.

With a Green Amendment, the people’s right to a clean and healthy environment would occupy a higher order of legal significance. Statutes and regulations would have to be consistent with the right or be subject to rejection in a court as unconstitutional. If the West Virginia Legislature or the DEP created a statute or regulation affecting the cleanliness of drinking water, they could to do so only after considering how the protected environmental rights could be preserved with the least impact. This is a feature of acting as a trustee of those rights. Where protected environmental rights would be destroyed, no governmental action could be taken.

The trusteeship feature is very significant. The beneficiaries of the trust are the current generation of West Virginians and all future generations. So the government actor would have to consider not only the immediate effect of an action, but its long-term effect. And as a trustee, the primary concern would be the preservation of the environment. Where job creation or some other competing policy objective conflicted with these rights and could not be reconciled, the competing objectives would have to give way.

Taking the Rockwool situation as an example, if the Green Amendment were in place a private citizen would not be able to sue the company directly for any industrial activity. Instead the private citizen would challenge the state for issuing the air quality permit. Perhaps even local governments, which are instrumentalities of the state, would be subject to suit for acts in the permitting process that unconstitutionally infringed the protected rights.

Pennsylvania’s Green Amendment was enacted in 1971. But through early judicial interpretation its impact was blunted. Instead of reading and enforcing the plain language of the Amendment, Pennsylvania courts treated it as a policy statement the meaning of which was determined by legislatively-created statutes and rules. This ended in 2012 with the case of Robinson Township v. Commonwealth, which successfully challenged the constitutionality of a one-size-fits-all zoning scheme that permitted drilling, fracking pads and gas wells in every zoning district, including residential districts, near schools, playgrounds and hospitals.

The Robinson Township court ruled that the people had withheld from government the power to trample environmental rights, which the Green Amendment had raised to the same level as the right to free speech or the right to be free from unreasonable searches and seizures. While the Green Amendment did not impose on the legislature a duty to enact affirmative statutes, a duty was created to avoid infringing those rights by legislative action.

Like West Virginia’s proposed Green Amendment, Pennsylvania’s placed on the Commonwealth the duty to preserve and maintain the state’s public natural resources. This duty was held by the court to mean that the government must prevent and remedy the degradation, diminution, or depletion of public natural resources and do so in a way that is consistent with the fiduciary obligations of a trustee, including the duties of prudence, loyalty and impartiality.

The principle of anti-degradation does not mean “no activity.” Instead it allows for sustainable development and activities that do not harm the quality and quantity of the water, air, fish and other aspects of the natural environment, now or in the future. Under this standard, it is hard to imagine how mountaintop removal mining could be given a permit by state authorities.

Pennsylvania is not the only state with a Green Amendment. The Montana Constitution declares a right to a “clean and healthful environment.” This is supported by other features of the state’s constitution. A section entitled Protection and Improvement reads like this:

The state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations. The legislature shall provide adequate remedies for the protection of the environmental life support system from degradation and provide adequate remedies to prevent unreasonable depletion and degradation of natural resources.

The Montana Supreme Court enforced these obligations against the Montana Department of Environmental Quality when it issued a permit to a massive open-pit gold mine to discharge polluted water into streams.

In fact there is a movement, called For the Generations, devoted to the passage of Green Amendments across the country. In advancing our own Green Amendment, progressive West Virginia legislators are out in front of many states. This Amendment would be a game-changer for us. Wish them luck.