Kentucky Deserves a “Green” Amendment to the State Constitution
Kentucky Deserves a “Green” Amendment to the State Constitution
"Existing constitutional rights cannot be fully realized if they are not applied to environmental protection as well."
Over the weekend, Rep. Josie Raymond alluded on Twitter to the fact that she and fellow Louisville legislator McKenzie Cantrell were planning on introducing a “green amendment” to the Kentucky Constitution this session: a Red River Gorge-sized leap forward for environmental protections, public health and rural communities across the state if it is able to pass.
But the concept of a “green amendment” might initially be a little confusing (or, frankly, far-fetched) for people who are so accustomed to living in an extraction economy that it seems there is no other approach the natural environment than take, take, take.
Fortunately, there is. This sort of amendment typically affirms that the natural environment itself has fundamental legal protections, and that all humans deserve the right to exist in a healthy environment. Yes, everyone. And while Raymond and Cantrell’s specific amendment hasn’t been released yet, over 110 countries around the world from Bangladesh to Bolivia—along with states like Illinois, Montana and Pennsylvania—have already added constitutional amendments affirming that the right to a healthy environment is a basic human right, so we have quite a deep bench of diverse potential blueprints to examine while thinking about how such legislation could impact Kentuckians. (Plus, Raymond pre-filed a similar bill last session.)
In states and nation-states where a version of an environmental constitutional amendment has been adopted—and, once again, there are plenty of them around the globe—the positive outcomes have been sweeping: from stronger environmental laws; to improved enforcement of current laws; to reductions in environmental injustices; to a leveled playing field with regards to social and economic rights (Boyd, 2013). Most of the time, these constitutional amendments take the form of either procedural rights, substantive entitlements or a mix of both. Substantive entitlements, for example, mean that a local group could potentially sue if a company decides to dump coal slurry into their local waterways, while procedural rights mean that the government has the “obligation to consult with communities before they take actions that will affect their environment, or [give] individuals the right to participate in governmental processes that will affect their environment.” (Daly, Winter 2012)
Dr. Deepa Badrinarayana argues in her work, The ‘Right’ Right to Environmental Protection: What We Can Discern From the American and Indian Constitutional Experience (Badrinarayana, 2017) that “existing constitutional rights cannot be fully realized if they are not applied to environmental protection as well.” In Kentucky, we’ve seen this play out for decades, as our collective rural health woes can often be traced back to an environment that itself is not healthy due to generational degradation, the extraction economy and policies that ignore the larger implications of pollution for the sake of industrial lobbies. And if our federal government isn’t going to step up on behalf of a healthy environment anytime soon—which it appears it is not—it’s up to states to take charge.
Could Kentucky be uniquely positioned to lead the way on this? Maybe so. In his work, Greening Constitutions with Environmental Rights: Testing the Isomorphism, Dr. Joshua Gellers explores whether environmental constitutionalism is adopted based on regional isomorphism: the tendency among states (or countries) within a region to converge on certain policies. His research—much of which is visually represented in his Enviro Rights Map, a website that catalogs constitutional environmental rights throughout the world—finds that, contrary to what might be assumed, this is not the case (Gellers, 2017).
For example, the fact that Montana has a “green” amendment didn’t encourage Wyoming or North Dakota to make the same choice simply through the assumption that neighboring states—with similar geographies and, relatively speaking, histories—would influence one another on this specific form of environmental policy.
In Kentucky’s case, this potentially bodes well for support of the movement. First, it proves that just because the majority of our neighboring states haven’t adopted similar policies (Ohio, Illinois and Virginia being the only contiguous exceptions) we will be influenced against making such a strong, specific stance that would move the commonwealth toward a healthier future. Second, it reinforces the cultural notion of Kentucky as a united, one-of-a-kind state—Kentucky against all of y’all, as they say—which would help in building out the movement as something completely homegrown and grassroots, rather than presented by outside forces, which has the possibility to automatically lose the trust of large swaths of the population (Elam, Spring 2002).
Of course, this is predicated on the assumption that our elected officials are working for the best interest of their communities while both listening and responding to the needs of constituents, which, in reality, doesn’t happen a lot of the time. You’d be hard pressed to convince people in power that when Nicholas Robertson, former legal advisor for the International Union for the Conservation of Nature, writes, “A central idea is that the ending of the fossil fuel era can be seen as an opportunity rather than a threat, that life after oil [and coal] can be more abundant and fulfilling than before,” it has any mark of truth.
(Fog rolling in over Red River Gorge, Getty Images)
But Appalachian Kentucky could benefit in immeasurable ways from supporting an environmental amendment to the Kentucky Constitution, including:
1. It would affirm the intrinsic value of Kentucky’s land and nature;
Look, we live in a beautiful place, and it’s time to stop taking that for granted. With a constitutional environmental amendment that affirms the intrinsic value of the land—ideally combined with consistent local and statewide legislative action around the same issues (Badrinarayana, 2017)—Appalachian Kentucky communities would have greater recourse to fight against external industrial forces, particularly from companies with deep pockets and unwieldy lobbyist influence.
2. And help improve the long-term health of communities;
Greater health equity is at the very core of most “green” amendments—and lord knows, we need that in Kentucky. This addition would be just as much for the health of the people living alongside the land as for the land itself.
Take our waterways, for instance. Kentucky has a long history of waste-filled and polluted waterways that have resulted in major public health crises, like Martin County’s undrinkable, sludge-tainted tap water that still pours out of faucets to this day. By including provisions within an environmental constitutional amendment about the health of the environment as directly related to the health of individuals, the state would move toward preventing future environmentally-based public health disasters and, in turn, building a healthier Kentucky.
3. While protecting the environment for future generations;
An environmental protection amendment could help keep Kentucky a brilliantly biodiverse place for generations that come—and who could speak against that? Plenty of legislators love to position themselves as pro-life when it comes to abortion rights, but fall silent when it comes to how we’ll protect the quality of life for the children who are already here.
4. And moving away from environmental degradation toward forward-thinking industries.
Hang with me here, it’s about to get a little wonky. If we follow the logic that “rule of law” is a primary social value (Voigt, 2013) this could mean that by adding environmental protections to the Kentucky Constitution—thus making it a foundational “rule of law”—there becomes a greater impetus for the adoption of sustainability into the cultural fabric, helping prevent any “paper tiger” (Badrinarayana, 2017) situations and causing a wider understanding of the importance of environmental protections.
Similar to the case outlined by Franklin L. Kury, who helped draft the “green” constitutional amendment for Pennsylvania in 1971, Kentucky has the opportunity to completely shift the “rule of law” and operational structure of a state that’s long been too wedded to extraction industries.
“The [environmental constitutional] amendment—during its thirty years—[has] had a salutary effect,” Kury wrote for the Pennsylvania Conservation Land Trust in 2018. “Its principles have been incorporated into the permit and operational programs of all the state agencies that relate to the environment…and everyone elected to any public office in Pennsylvania swears to uphold the amendment when he or she takes the oath of office. The amendment has forced developers and others who have an adverse impact on the environment to plan their project so as to minimize negative environmental impact. This in itself is revolutionary when considered against Pennsylvania’s history.”
We’ve started to see some instances of large-scale attempts to move toward more sustainable industries in Appalachian Kentucky—like the hydroponic greenhouses of AppHarvest and many yet-to-materialize solar projects—which are primarily funded by outsider money and producing mixed results, at best. But by making environmental rights a rule of law, it’s easy to image how economic just transition can flourish, with community-based projects sprouting at a local level.
Several states are ahead of us in either ratifying full environmental constitutional amendments, or simply adopting statewide policies that are steps in the right direction. Below are several ways that Kentucky’s environmental amendment could learn from those in other states.
Louisiana: Louisiana—a state well-known for its deep reliance on the oil and gas industry—adopted an official “statement of public policy” that’s notable for its inclusion of tourism-based language in the provision: The natural resources of the state, including air and water, and the healthful, scenic, historic, and esthetic quality of the environment shall be protected, conserved, and replenished in so far as possible and consistent with the health, safety, and welfare of the people. The legislature shall enact laws to implement this policy.
While this might not go as far as some might like in conveying the intrinsic importance of the land itself, if pockets of Appalachian Kentucky are attempting to rebrand as hot beds for “adventure tourism”—the whole Kentucky Wildlands campaign comes to mind—this surely would benefit those marketing efforts.
Montana: Within Montana’s constitutional environmental amendment, it’s outlined clearly how individuals within the state have the inalienable right to a healthy environment: All persons are born free and have certain inalienable rights. They include the right to a clean and healthful environment.
Boom, simple, mic drop.
Ohio: Language in an official “statement of public policy” from Ohio takes a more Anthropocenic approach to why state-mandated environmental protections are important: “…to control, prevent, minimize, clean up, or remediate certain contamination of or pollution from lands in the state and water contamination or pollution…to enhance the availability, public use, and enjoyment of natural areas and resources; and to create and preserve jobs and enhance employment opportunities.”
Ohio knows that in order to grow the economy, you must first give people a healthy place to live. Kentucky legislators, are you listening?
Pennsylvania: The environmental rights amendment in Pennsylvania contains a “trustee clause” that allows it to hold more legal sway and influence than those in other states: Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.
Kentucky and Pennsylvania both have a deep history of relying on the extraction economy—particularly coal. Kentucky could benefit from a similar “trustee clause” in any environmental constitutional amendment that reinforces the state is a steward of the land itself.
Additional Reading:
Badrinarayana, Deepa. “The ‘Right’ Right to Environmental Protection: What We Can Discern From the American and Indian Constitutional Experience.” Brooklyn Journal of International Law, Vol. 43, No. 1, 2017, pp. 76-128.
Gellers, Joshua. “Greening Constitutions with Environmental Rights: Testing the Isomorphism Thesis.” The Review of Policy Research, Vol.29, No. 4, 2017, pp. 523-543.
Robinson, Nicholas A. “Updating New York’s Constitutional Environmental Rights.” Pace Law Review, Volume 38, Issue 1, 2017.
Ed. Voigt, Christina. Rule of Law for Nature: New Dimensions and Ideas in Environmental Law. Illustrated edition, Cambridge University Press. 2013.
We’ll be back Thursday with yet another tiny toe-dip into the world of audio and, of course, another round of our ever-popular legislative superlatives on Friday. Also, the clock is ticking to take advantage of our January paid subscriber deal, so if you haven’t gone behind the paywall yet, what are you waiting for? These are bargain basement prices here, y’all.