Why Constitutional Environmental Rights Don't Matter

• Pages: 10231-10250
• Date: 01 May 2026
• Published date: 01 May 2026
• Author: Sonya Ziaja
• Subject Matter: Derecho del Medio Ambiente

ARTICLES

MAY/JUNE 2026 ENVIRONMENTAL LAW REPORTER 56 ELR 10231

WHY CONSTITUTIONAL

ENVIRONMENTAL RIGHTS

DON'T MATTER

by Sonya Ziaja

Sonya Ziaja is an Assistant Professor of Law at University of Baltimore School of Law

and Research Affiliate at the CEU Democracy Institute.

As the federal government abandons climate action and environmental protection, advocates and scholars

pin their hopes on state constitutional amendments to fill the void. The underlying idea is that state consti-

tutions will change hearts and minds, leading to fast and meaningful action. Detractors argue that these

constitutional rights are meaningless. This Article provides original data on the role of state constitutional

environmental rights in the day-to-day work of civil servants. It argues that environmental rights amendments

are only one small part of complex systems that influence beliefs and actions on the ground, and do not have

a direct impact on natural resources managers. It also highlights mechanisms to strengthen constitutional

environmental rights: other rights, specifically the public trust doctrine, do have significant influence; advo-

cates may bolster the meaning of environmental right s through trainings, linking them to native cultural rights,

and through litigation; and state natural resources agencies need to be adequately funded and staffed.

SUMMARYSUMMARY

As the federal government retreats from environ-

mental and public health protection, advocates and

scholars are turning t heir attention to state law and

state constitutional law to ll the void.1 e stake s are high;

the security of water resources, ecos ystems, economies, and

1. E.g., Quinn Yeargain, Decarbonizing Constitutions, 41 Y L.  P’ R.

1 (2022) (arguing that state constitutions provide a unique mechanism for

furthering climate goals in the absence of federal action).

the well-being of millions of people depend on the pres-

ence and enforcement of environmental law. Yet, the pace

of global warming leaves vanishingly little time to adjust

course. Inaction has its costs. So too does time and invest-

ment in well-meaning changes to law that w ill not lead to

action. Are state constitutions up to the task?

Over the past half-centur y, advocates of environmental

rights have succeeded in passing constitutional amend-

ments in six states.2 Environmental rights are now expe-

2. Following Profs. John Dernbach and Amber Polk’s restrained approaches,

I include these as Illinois, Hawaii, Pennsylvania, Massachusetts, New York,

and Montana. See, e.g., John Dernbach, e Environmental Rights Provisions

of U.S. State Constitutions: A Comparative Analysis, in E L

B  C (2023); see also Amber Polk, e Unfullled Promise

of Environmental Constitutionalism, 74 H L.J. 123, 127 (2023). Cf.

Barry E. Hill, Environmental Rights, Public Trust, and Public Nuisance: Ad-

dressing Climate Injustices rough State Climate Liability Litigation, 50 ELR

11022 (Dec. 2020), https://www.elr.info/articles/elr-articles/environmen-

tal-rights-public-trust-and-public-nuisance-addressing-climate (discussing

Rhode Island’s environmental constitutional provisions). Other states have

adopted environmental provisions without explicitly creating rights, and

this list is much longer. E.g., Barton H. ompson Jr., Constitutionalizing

the Environment: e History and Future of Montana’s Environmental Provi-

sions, 64 M. L. R. 157, 158 (2003).

Author’s Note: The author thanks Dean Cinnamon Car-

larne, and Profs. Alyse Bertenthal, Sam Bookman, Rebecca

Bratspies, John Dernbach, Michael Gerrard, Tracy Hester,

Sharon Jacobs, Sam Kalen, James May, Andrew Mergen,

Dave Owen, Heather Payne, and Amber Polk for their com-

ments and encouragement to take on this work. This project

is indebted to Prof. Melissa Scanlan’s generosity, offering

lessons learned from her own excellent longitudinal studies

of water managers in Wisconsin. Earlier versions benefit-

ted greatly from the review of participants of the Columbia

Law School’s Sabin Colloquium on Innovative Environmen-

tal Law Scholarship and Loyola Chicago’s Environmental

Writing Workshop, along with the faculties of Ohio State

University and Georgia State University.

Copyright © 2026 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, https://www.eli.org

56 ELR 10232 ENVIRONMENTAL LAW REPORTER MAY/JUNE 2026

riencing a “political revival”3 at multiple scales, with some

recent wins through litigation in Hawaii4 and Montana.5

At the global scale, environmental rights are now part of

fund amental hu man right s.6 Concurrent with these eorts,

legal scholars have produced signica nt works that con-

sider how environmental rights have been and may be

litigated,7 especially with rega rd to climate change. But the

life of law is not limited to courtrooms and litigants.8 To

3. Polk, supra note 2, at 125. See J M  E D, G J

H  E C (3d ed., United Na-

tions Environment Programme 2019); Brian Preston, e Nature, Content

and Realisation of the Right to a Clean, Healthy and Sustainable Environment,

36 J. E’ L. 159-85 (2024); Craig Martin, Drop in the Ocean: e Hidden

Power of Rights-Based Climate Change Litigation, 56 C W. R. J. I’

L. 151 (2024) (discussing international environmental rights); M K. 

R, T G A (2022).

Scholars in the late 20th century tended to be more skeptical of con-

stitutional environmental rights. See, e.g., Barton H. ompson Jr. Envi-

ronmental Policy and State Constitutions: e Potential Role of Substantive

Guidance, 27 R L.J. 863, 871 (1996); J.B. Ruhl, e Metrics of Con-

stitutional Amendments: And Why Proposed Environmental Quality Amend-

ments Don’t Measure Up, 74 N D L. R. 245 (1999).

4. Press Release, Josh Green, Governor, Hawaii, Historic Agreement Settles Na-

vahine Climate Litigation (June 20, 2024), https://perma.cc/4FFK-ALZ8.

5. Held v. Montana, 560 P.3d 1235, 1260-61 (Mont. 2024).

6. e United Nations General Assembly voted to recognize a “human right

to a clean, healthy and sustainable environment.” G.A. Res. A/76/300 (July

28, 2022).

7. Polk, supra note 2, at 127; John C. Dernbach, Taking the Pennsylvania Con-

stitution Seriously When It Protects the Environment: Part I—An Interpretative

Framework for Article I, Section 27, 103 D. L. R. 693 (1998); John

C. Dernbach, Taking the Pennsylvania Constitution Seriously When It Pro-

tects the Environment: Part II—Environmental Rights and Public Trust, 97

D. L. R. 104 (1999); John C. Dernbach, e Potential Meanings of a

Constitutional Public Trust, 45 E’ L. 463 (2015); John Dernbach, ink-

ing Anew About the Environmental Rights Amendment: An Analysis of Recent

Commonwealth Court Decisions, 30 W C. L. R. 147 (2021);

James R. May & Erin Daly, Can the U.S. Constitution Encompass a Right to a

Stable Climate? (Yes, It Can.), 39 UCLA J. E’ L.  P’ 39, 58 (2021);

James R. May, Subnational Climate Rights in America, 26 U. P. J. C.

L. 26, 45-60 (2024) (discussing litigation under state constitutional envi-

ronmental rights); Rebecca Bratspies, Administering Environmental Justice:

How New York’s Environmental Rights Amendment Could Transform Business

as Usual, 41 P E’ L. R. 100 (2024) (discussing the interpretation

and implementation of New York’s environmental rights amendment); Paul

Rink, Conceptualizing U.S. Strategic Climate Rights Litigation, 49 H.

E’ L. R. 149 (2025); Sarah Everhart, Green Amendments and Ham:

How Green Amendment Jurisprudence Can Inform Maine’s Right to Food, 16

M. L. R. 203 (2024); Evan Bianchi et al., e Private Litigation Impact

of New York’s Green Amendment, 49 C. J. E’ L. 357 (2024); Sam

Bookman, Defensive Environmental Constitutionalism: American Possibilities,

26 U. P. J. C. L. 1 (2024); Johanna Adashek, Do It for the Kids: Pro-

tecting Future Generations From Climate Change Impacts and Future Pandem-

ics in Maryland Using an Environmental Rights Amendment, 45 P. L

 R. L. R. 113 (2022); Andrea White, Protecting Future Generations

From Climate Change in the United States, 49 E L.Q. 501 (2022);

Melanie Hess, Building Blocks of a Fundamental Right: A ought Experiment

on the Constitutional Right to a Livable Climate, 1 N D J. E-

 T. 525 (2020); Sarah Hyde, Healthy Environment, Healthy Mind:

Constitutionally Guaranteeing Children the Right to a Healthful Environment,

10 C.-K J. E’  E L. 1 (2020); Hill, supra note 2; Jacob

Elkin, Environmental Justice and Pennsylvania’s Environmental Rights Amend-

ment: Applying the Duty of Impartiality to Discriminatory Siting, 11 C.

J. R  L. 195 (2021).

8. Bryant G. Garth, James Willard Hurst as Entrepreneur for the Field of Law

and Social Science, 18 L.  H. R. 37 (2000); Michaela Anang-Hadjico-

standi et al., Environmental Geography and Law: Towards a Synthesis, 99 T-

 L. R. 811 (2025); R C. E, O W L:

H N S D 282-92 (Harvard Univ. Press 1994);

Melissa K. Scanlan, e Evolution of the Public Trust Doctrine and the Degra-

dation of Trust Resources: Courts, Trustees and Political Power in Wisconsin, 27

E L.Q. 135 (2000); Melissa K. Scanlan, Protecting the Public Trust

and Human Rights in the Great Lakes, 2006 M. S. L. R. 1333 (2006);

answer whether constitutional environmental rights mat-

ter, we need to look to how those rights function, or fail,

outside of traditional legal contexts.9

is Article brings a qua litative empirical approach10 to

this issue,11 providing original data from the experience of

bureaucrats in environmental and natura l resources agen-

cies—agencies that have enforcement and/or permitting

authority over water and resources management—in a

sample of states that (1)already had a constitutional right

to a healthy environment, (2)faced unique environmen-

tal challenges, and (3)had dierent wording or structure

of their amendments from other states.12 Agenc y attorney s

from Pennsylvania and New York declined on behalf of

their agencies to participate in the study.13 How ever, c ur-

rent and former natural resources agency sta in Montana

and Hawaii did participate.14

Natural resources managers, of course, are not the

only players who matter to securing a healthy environ-

Melissa K. Scanlan, Implementing the Public Trust Doctrine: A Lakeside View

Into the Trustee’s World, 39 E L.Q. 123 (2012); Sonya Ziaja, e

Secret Lives of Environmental Rights, 41 P E’ L. R. 345 (2024).

As Sam Bookman puts it, constitutional environmentalism matters

“beyond the world of rights and courts.” Sam Bookman, Demystifying En-

vironmental Constitutionalism, 54 E’ L. 1, 6 (2024). Paul Rink similarly

points to potential societal consequences of litigation under constitutional

environmental rights in his discussion of “category 3” and “category 4” cli-

mate litigation. Rink, supra note 7, at 190-205 (2025) (discussing broader

societal impacts beyond successes in the courtroom).

9. See Bryant Garth & Austin Sarat, Studying How Law Matters: An Introduc-

tion, in H D L M 3-5 (Garth & Sarat eds. 1998) (discussing

the relationship between law on the books and law in action as understood

by generations of law and society scholars).

10. e methods and interview instruments for this project were reviewed and

approved by the University of Baltimore Institutional Review Board on Oc-

tober 19, 2021.

11. e lack of empirical studies of how environmental rights work on the

ground has been a concern for scholars in this area. See, e.g., James R.

May, e Case for Environmental Human Rights: Recognition, Implementa-

tion, and Outcomes, 42 C L. R. 983, 987 (2021) (“ere is also

spare demonstrable evidence that legal recognition of a right to a healthy

environment improves environmental outcomes, suggesting a need for

further interrogation.”).

12. My gratitude to Profs. Katrina Kuh, Richard Wallsgrove, Sandra Zellmar,

and John Dernbach for making initial introductions in state agencies.

13. Despite kind introductions from key gatekeepers, New York declined to

participate because of pending litigation over its recently adopted amend-

ment, and Pennsylvania similarly declined to participate. ese early set-

backs, though, are consistent with the practice of interdisciplinary research.

See, e.g., Simon Halliday & Patrick Schmidt, C L  S-

 R 5-7 (2009) (discussing the role of serendipity and bad luck

in law and society scholarship).

14. H. C. art. XI, §9:

Each person has the right to a clean and healthful environment, as

dened by laws relating to environmental quality, including control

of pollution and conservation, protection and enhancement of nat-

ural resources. Any person may enforce this right against any party,

public or private, through appropriate legal proceedings, subject to

reasonable limitations and regulation as provided by law.

M. C. art. II, §3 (“All persons are born free and have certain in-

alienable rights. ey include the right to a clean and healthful environ-

ment. ... In enjoying these rights, all persons recognize corresponding

responsibilities.”). M. C. art. IX, §1:

(1)e state and each person shall maintain and improve a clean

and healthful environment in Montana for present and future gen-

erations. (2)e legislature shall provide for the administration and

enforcement of this duty. (3)e legislature shall provide adequate

remedies for the protection of the environmental life support sys-

tem from degradation and provide adequate remedies to prevent

unreasonable depletion and degradation of natural resources.

Copyright © 2026 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, https://www.eli.org