Author ORCID Identifier

Mark Nevitt 0000-0001-9690-0326

Document Type

Article

Publication Date

2025

Keywords

Green Amendments, Climate plaintiffs, Standing, State constitutions, Environmental rights

Abstract

This Essay proceeds in three Parts. In Part I, I describe and analyze which states have climate and environmental amendments within their state constitutions. Here, I focus on three states (Hawaii, Montana, and Pennsylvania) that have comparably strong Green Amendments and have experienced litigation in recent years enforcing these constitutional provisions. I describe and analyze three cases: Navahine F. v. Hawaii Department of Transportation (Hawaii), Held v. Montana (Montana), and Robinson Township (Pennsylvania). I argue that these three decisions—all of which enjoyed varying degrees of success—will spur greater efforts to constitutionalize state environmental rights. Indeed, there are grassroot efforts within several states to amend their respective state constitutions to add new Green Amendments. In Part II, I address the unique legal challenges litigants face when asserting rights-based environmental claims. Constitutionalizing environmental rights via state or federal constitutions face justiciability obstacles centering around redressability. I conclude in Part III by addressing the challenges and opportunities in constitutionalizing environmental rights. Here, I argue that rights-based environmentalism will play a growing role in state courts but will continue to struggle in federal courts. Following the success of plaintiffs in Navahine F. and Held, I identify several factors that will help determine the success of prospective Green Amendment lawsuits.

While I do not anticipate a tsunami of successful litigation anytime soon, Green Amendments lawsuits can play an important role in advancing environmental rights, particularly if a state has taken a specific legislative action that counteracts the underlying constitutional provision.

First Page

1029

Publication Title

Florida International University Law Review

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