UC Law Journal


Amber Polk


The political push for the adoption of state-level “green amendments” in the United States has gained significant traction in just the last couple of years. Green amendments add an environmental right to a state’s constitution. Five such amendments were made in the 1970s in Pennsylvania, Montana, Hawaii, Massachusetts, and Illinois. This Article looks in depth at the case law that has developed the contours of these constitutional environmental rights in the wake of the political revival of environmental constitutionalism in the United States. I distill two lessons from this jurisprudence. First, constitutional environmental rights are interpreted by the courts as procedural rights, not substantive rights. Second, in interpreting constitutional environmental rights, courts look to other legal doctrines to define the content and scope of the constitutional environmental right, generally on the basis of the constitutional language. I argue that because these rights are interpreted as procedural rights, they fail to effectuate the paradigm shift that we should expect from a rights-based environmentalism, and so the promise of environmental constitutionalism remains unfulfilled.

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