LSCA/CCI Writing Competition Winner Noah Hines explores “Green Amendments” and corporate climate accountability

We are delighted to share the winning piece from our first student writing competition, hosted in conjunction with the Center for Climate Integrity. Students interested in participating can see information about this year’s competition at this link; submissions are due by April 19. Below, 2023 winner Noah Hines expounds upon the role constitutional amendments can play in holding corporations accountable for their climate impacts.

Green Amendments as Tools for Corporate Accountability[i]

The term “climate impacts” is roughly fifty years old.[ii] It describes the various effects of climate change, covering both long term impacts like gradual increases in temperature and sudden shifts like the deadly heat dome that spread over northwestern North America in 2021.[iii] Understanding what climate change is reveals that the term “climate impacts” does not describe wholly modern phenomena, but rather that it describes phenomena that are the result of actions which significantly predate the term itself. In other words: The activities of past generations have led to the present flooding, burning, and suffocation of modern landscapes and human beings that many academics now characterize as “climate impacts.” One may be tempted to either simply move past the uncommonly long cause-and-effect chains linking climate changes and impacts (“that was then, this is now”) or to simply lament the injustice of how now-dead actors wielded, sometimes unknowingly, vast authority over the now-living (“and there’s nothing anyone can do about those actors now”). This note rests on a different approach: Just as historical contributors to climate change effectively imposed the harmful effects of their actions on future generations, so can present actors reach backwards, identify the parties most responsible for those harms, and hold them accountable. In the context of climate change, doing so is simplified: many of the corporate actors most responsible for climate change still exist.

This note identifies so-called “Green Amendments” as ideal tools for holding corporate contributors to climate change accountable. The term “Green Amendment” was first coined by author Maya van Rossum in her 2017 book The Green Amendment: Securing Our Right to a Healthy Environment,[iv] in which she argues that modern environmental protection laws are fundamentally failing the most vulnerable people in society and proposes the creation of new constitutional rights as a solution.[v] The provisions van Rossum argues ought to be added to state constitutions as “Green Amendments” are also sometimes called “Environmental Rights Amendments” and generally enumerate the right of all citizens to a clean or healthy environment.[vi] Green Amendments currently exist in Pennsylvania, Montana, Illinois, Hawaii, Massachusetts, Rhode Island, and New York.[vii] This note will provide examples of how those provisions have already changed the landscape of corporate accountability and environmental law in those states while proposing that enacting more Green Amendments will reinforce those changes.

This note will focus on the possibility that Green Amendments can create new means of achieving corporate accountability. Today, large corporations bear the bulk of responsibility for human-caused climate change, and historically underserved populations bear the bulk of climate change’s harmful consequences.[viii] Outside of the ballot box, little opportunity exists for these populations to see these corporations held accountable. Green Amendments play a critical role in remedying this gap in access to justice; their enactments create a basis for individuals and organizations to force state governments to protect populations and ecosystems from climate change, and to finance necessary climate adaptation by prosecuting the corporations most responsible for climate change.[ix]

Part I of this paper will provide a brief overview of existing Green Amendments, and their current role in the pursuit of corporate accountability. Part II will describe a model Green Amendment, and explain how it gives states the best chance to hold current and historic corporate polluters accountable.[x]

Part I: The Current Landscape

            American corporations are uniquely responsible for climate change. Twenty corporations have collectively contributed roughly thirty-five percent of all fossil fuel and cement emissions worldwide since 1965, and over half of these collective emissions are attributed to US-tied fossil fuel companies.[xi] These emissions worsen the quality of the environment for all people, particularly vulnerable populations.[xii] Modern environmental protection laws arm governments with sufficient tools to curb ongoing pollution, enabling them to mandate a reduction in corporate polluters’ greenhouse has emissions; however a major problem in corporate accountability persists: Corporations have largely escaped liability for their past contributions to climate change, even as climate change continues to harm living populations.[xiii] In order to achieve corporate accountability, the law must connect harmful climate impacts to the corporations that are responsible for their existence. Green Amendments have the potential to do so.

a.     Green Amendments Generally

Green Amendments currently exist in seven states.[xiv] In December of 2021, New York enacted the most recent Green Amendment via a ballot initiative that added a right to a “healthful environment” to the state’s constitution.[xv] Other Green Amendments came about in various ways. Prior to New York, the last Green Amendment was enacted in Hawaii, in 1978, after a statewide constitutional convention.[xvi] Illinois enacted its Green Amendment in 1972 after a constitutional convention process that took over seven years to complete.[xvii] Montana’s Green Amendment was also enacted after a 1972 constitutional convention.[xviii] Massachusetts voted to enact its Green Amendment in the same year.[xix] Pennsylvania was the first state to enact a Green Amendment, in 1971, less than one year after the first Earth Day.[xx] Rhode Island’s Green Amendment was enacted as part of its first state constitution, and covers both fishery rights and shore privileges protected under its colonial charter while also mandating that the state “adopt all means necessary and proper by law to protect the natural environment of the people of the state.”[xxi]

In the following subsection, I will focus on direct examples of Green Amendments being used to punish corporations for their polluting activities, and end by describing how Montana’s Green Amendment has been used in a way that opens the door for real corporate accountability.

b.     Existing Green Amendments and Corporate Litigation

Green Amendments have had varying impacts on corporate climate litigation. State courts interpret Green Amendments under the Public Trust Doctrine, which positions the public as the owner of certain natural or cultural resources and the government as their caretaker or defender.[xxii] Writing for the Georgetown Environmental Law Review, Sean Lyness explains how the Public Trust Doctrine is “undoubtedly state-specific,” but that “whatever its particular current status – statutory, constitutional, or otherwise – the public trust doctrine maintains a common law dimension.”[xxiii] State courts, therefore, are empowered by the Public Trust Doctrine to significantly alter the way state governments address the issue of corporate accountability through their decisions. In turn, Green Amendments instruct courts on what is properly considered part of the public trust, and on what duties the state is bound by in relation to that trust.

One of the first cases involving Pennsylvania’s Green Amendment involved a corporation’s planned construction of an observation tower near the historic Gettysburg Battlefield.[xxiv] The state argued the construction of the tower would disrupt the “historic and aesthetic values,” protected under the State’s new Green Amendment, of the environment of that hallowed ground.[xxv] Although the state of Pennsylvania was not involved in the deal that led to the planned construction, the state argued that the Green Amendment was self-executing, and the state was therefore entitled to bring the lawsuit anyway.[xxvi] The court declined to extend this meaning to the amendment, finding that it was not self-executing because Pennsylvania had no supporting legislation defining what values the amendment protects, but the court noted that the state’s Green Amendment expanded the power of the state to “conserve and maintain [the state’s public natural resources] for the benefit of all the people.”[xxvii]

Modern plaintiffs have been empowered by the way Pennsylvania’s Green Amendment expands the state’s regulatory power over polluting corporations in different contexts, including litigation aimed at preventing the state from hampering local efforts to protect their environments. In 2012, Robinson Township, PA, challenged a newly amended state law that restricted the town’s ability regulate fracking within its jurisdiction.[xxviii] In overturning the relevant portions of the amended law, the state supreme court interpreted the “public natural resources” that Pennsylvanians have a right to enjoy under their Green Amendment as including “resources that implicate public interest, such as ambient air, surface and ground water, wild flora, and fauna (including fish) that are outside the scope of purely private property.’”[xxix] In addition, the court recognized that the state was subject to a duty to refrain from taking unreasonable actions that violate its trustee duties over the state’s public natural resources, and a duty to “to act affirmatively to protect the environment.”[xxx] Thus, the court found that the state legislature’s public trust duties prevented it from halting local governments’ efforts to preserve their public natural resources.

The supreme court of Hawaii recently connected its state constitution’s guarantee of due process to its Green Amendment.[xxxi] In 2017, the Sierra Club challenged Hawaii’s Public Utilities Commission’s approval of a purchase agreement that saw the public utility purchase power from a facility owned by a private company which, according to the Sierra Club, over-relied on burning fossil fuels.[xxxii] The Commission initially denied the Sierra Club’s motion to intervene in the permitting process, and in turn the Sierra Club argued that it (specifically, several of its members who lived near the site that the electric company wanted to use) had a due process right to participate in the hearing because the coal-burning allowed by the permit would harm Sierra Club’s members’ “health, aesthetic, and recreational interests.”[xxxiii] The lower court ruled against the Sierra Club without considering its due process argument, but the state supreme court held that the Sierra Club had asserted a protectable interest in a clean environment and that the lower court erred in not applying due process in the context of the right to a clean and healthful environment enumerated in the state constitution.[xxxiv] Thus, the impact of Hawaii’s Green Amendment was twofold: Not only does the Green Amendment establish the right to a clean environment for each of its citizens, but it also alters the legal landscape of corporate accountability by expanding the scope of due process to cover those asserting their right to a clean environment.

In 2020, the supreme court of Montana examined a case involving a Canadian corporation seeking a license for mining exploration near Yellowstone.[xxxv] The corporation initially obtained the license from the state Department of Environmental Quality, and a 2011 legislative amendment to Montana’s constitution prohibited courts from issuing injunctions in permitting situations like this one.[xxxvi] The state supreme court, in upholding a state district court decision, not only agreed that the Department’s decision to issue the permit should be remanded “for additional analysis,”[xxxvii] but also held that the prohibitive legislative amendment was unconstitutional because it conflicted with the state’s Green Amendment (which guarantees “the right to a clean and healthful environment”[xxxviii]) and with another constitutional provision that requires its legislature to “provide adequate remedies to prevent unreasonable depletion and degradation of natural resources.”[xxxix] Here again, provisions in Montana’s constitution that protect the public’s environment were doubly effective; they enabled a challenge to the legality of the permit in the first place, and strengthened the legal checks involved in the prevention of environmental degradation by overpowering provisions which limited courts’ power in this context.[xl] 

Other states’ Green Amendment have been cited by courts in limiting corporations’ ability to pollute local ecosystems, and holding accountable corporate polluters for their past harmful actions. In 2016, Rhode Island’s Green Amendment was cited by the state supreme court in upholding an administrative decision to punish a corporation for petroleum leaching from its pipelines without having to show that the corporation had knowledge of the leaching.[xli] In that case, a corporation challenged a fine imposed on them by the state Department of Environmental Management for the oil leaching out of pipelines located on land owned by the corporation, alleging that the Department did not have the authority to impose the fine without showing causation.[xlii] The court held that, in light of the state’s Green Amendment, the law cited by the Department in issuing the fine “combines the need to conserve natural resources and protect the environment with the desire to protect the citizens of this state,” the statute authorizes the penalization of the defendant for the leaked oil without having to show that the corporation permitted or was even aware of the leak.[xliii]

The state of Rhode Island is now suing over a dozen major oil producers for their role in causing harmful climate impacts, citing its Green Amendment as the basis for one of eight causes of action, and seeking significant amounts of damages from these oil producers.[xliv] While the outcome of this case is still forthcoming, the role of the state’s Green Amendment as a link between those most responsible for climate change and those most impacted by it (namely, the public in general) has emerged as a powerful one in pursuing corporate accountability.

c.     Held v. Montana as a Signal

On August 14, 2023, the Montana First Judicial District Court delivered its opinion in the ongoing Held v. Montana case. Held does not directly involve a corporate polluter, and instead arose from several young plaintiffs asserting that their rights under the state’s Green Amendment were infringed by a state law prohibiting the consideration of GHGs when issuing permits. However, the court’s interpretation of Montana’s Green Amendment carries potentially monumental implications for how the provision, and similarly-worded amendments to other states’ constitutions, could be used to force governments to hold corporations accountable for their contributions to climate change. The Held court held that Montana’s Green Amendment “requires enhancement of Montana's environment” and includes “an affirmative duty upon [the government of Montana] to take active steps to realize this right [to a clean and healthful environment].”[xlv] The court goes on to point out that the state’s Green Amendment requires the state to provide “adequate remedies for the protection of the environmental life support system from degradation” and recognizes that this “life support system” necessarily includes climate.[xlvi] Finally, the court held that Montanans’ environment is “unconstitutionally degraded and depleted due to the current atmospheric concentration of GHGs climate change.”[xlvii]

In other words, the court acknowledged that the presence of climate-related harms suffered by Montanans right now amount to an infringement of their rights as laid out in their state’s Green Amendment, and that the state has an affirmative duty to see those rights restored by enhancing its environment. As evidenced by the 2013 Robinson Township ruling discussed above, the idea that a Green Amendment creates an affirmative duty is not new; it is the combination of this idea with the recognition that existing climate change is currently interfering with citizens’ Green Amendment rights that carries major potential for achieving corporate accountability for climate change.[xlviii] The implications of Held will be discussed further in Part II, however it is important to note here that all of the above holdings pulled from the case rested on Montana’s Green Amendment. The existence of this provision drastically improved the ability of several young people to force their government to factor climate change into its decision making, and serves as an example of the way Green Amendments can play a major role in forcing governments to act on corporate accountability.[xlix]

The next part, again drawing from the work of activists like van Rossum, will describe a model Green Amendment and explain how its widespread enactment would create effective new opportunities for corporate accountability. Specifically, this model will draw from the constitutional framework identified in Held, and could enable plaintiffs to force their governments to actively respond to the mounting harms of climate change by prosecuting the very corporations most responsible for those harms.

Part II: Creating a New Landscape

More Green Amendments will promote corporate climate accountability by empowering individuals and organizations to force their governments to prosecute corporate polluters. This part will propose model language for future Green Amendments, and explain why the characteristics of self-executing rights, generational language, and mandatory state-level enforcement present in the model language create an effective Green Amendment.

a. Shortcomings of the Current Landscape

Green Amendments create a necessary new path to corporate accountability. Efforts to use the law to achieve corporate climate accountability have generally taken the form of legislation crafted to mitigate future corporate contributions to climate change,[l] and tort claims aimed at corporate polluters which seek remedies for injuries caused by climate change.[li] Green Amendments, if enacted properly, create the potential for a third category of legal action that furthers corporate accountability: Green Amendments empower citizens to force their government to protect people and environments from climate change, and punish the corporate polluters responsible for harmful climate change.

Contributing to an article in the Environmental Law Reporter, van Rossum correctly points out that “We don't have to undertake a full investigation into our system of laws to understand that it is fundamentally flawed; we can literally just look at what's happening on the ground to see that our current system of laws is fundamentally failing us.”[lii] Van Rossum explains that “Not just any language will do when it comes to recognizing and protecting environmental rights” and argues that truly effective Green Amendments must be placed in the Bill of Rights section of a constitution, feature “generational” (focused on people, rather than natural resources) language, and be self-executing.[liii] In the next subpart, I will propose a model Green Amendment, explain in what ways it both aligns and departs from van Rossum’s three qualifications, and describe the ways Green Amendments like the proposed model could serve as an effective means of achieving corporate accountability.

b. “The people have a right to a safe and healthy environment. The state shall ensure the maintenance of a healthy environment and of the public natural resources for the benefit of all, including generations yet to come.”

The above section title, if added to a state constitution, could serve as an effective Green Amendment, and give state governments ample opportunity to hold corporations accountable for their contributions to climate change. The most important aspects of this model Green Amendment are its self-executing nature, its focus on personal enjoyment of the environment rather than the preservation of the environment itself, and the imposition of a duty on the state to maintain the quality of the environment. Absent from this model is any requirement that the Green Amendment be placed in the Bill of Rights section of the constitution. Finally, this model would most effectively be implemented at the state level.

          i.      The Importance of Self-Execution and Generational Language

An effective Green Amendment would create self-executing right with language that prohibits the state from taking actions which abridge the people’s right to a clean environment. Self-executing constitutional rights come from “provisions which are immediately effective without the aid of ancillary legislation.”[liv] In a 1994 article centered around Montana’s Green Amendment, Tammy Wyatt-Shaw outlines the difference between constitutional provisions that create self-executing rights and those that do not.[lv] This distinction is based on the language of the provisions themselves, and those that “direct the legislature, grant a right, or impose a duty” are self-executing, and do not require plaintiffs to point to additional legal authority in order to invoke the provision.[lvi] Such provisions offer the strongest form for an effective Green Amendment that would enable plaintiffs to challenge governmental actions (or, crucially, non-actions) that violate their right to enjoy a clean environment.

Importantly, the question of whether a constitutional provision creates a self-executing right is a matter of judicial interpretation, and different state courts address this question in different ways.[lvii] For example, the supreme court of Vermont has established a three-part test to determine whether a provision is self-executing.[lviii] Therefore, the text of any given Green Amendment must be tailored according to the doctrine of self-execution specific to the state in which that Green Amendment would exist.

An effective Green Amendment must also use language focused on multi-generational enjoyment of a healthy environment, not simply on the preservation of existing natural resources.[lix] The cascading harmful impacts of climate change will affect different populations at different times, with many climate impacts arriving long after the activity that caused them actually occurred. This idea of intergenerational equity, and of how living generations of people may owe future generations certain duties, is too far removed from the topic of corporate accountability in the context of present climate impacts to be fully discussed here.[lx] That being said, an effective Green Amendment must prohibit not only activities that infringe on current people’s right to a clean environment, but also the ability of future generations to enjoy this right in their own time.

          ii. Other Considerations

Van Rossum also encourages the placement of Green Amendments in the Bill of Rights section of constitutions, but this detail is not necessary for an effective Green Amendment. Placing a formal declaration that all people have a right to a clean environment adjacent to historically significant declarations of rights like the freedom of speech and religion may be important in the context of generating public opinion in favor of environmental rights. However, judicial interpretations of existing Green Amendments and the question of self-execution put no weight on the location of a given provision within constitutions themselves.[lxi] In other words, there is no reason to expect that a Green Amendment situated in a Bill of Rights will be more legally impactful than one situated elsewhere in a constitution.

Green Amendments can achieve corporate accountability by empowering (or forcing) state governments to prosecute corporations, so implementing Green Amendments at the state level should be the focus of legal activists in this context. As explained in Part I, existing Green Amendments examined by state courts are interpreted within the scope of the public trust doctrine, which enable states to prosecute parties whose actions harm their citizens’ natural environment. But in a simpler context, pursuing accountability for some of the largest and well-financed organizations in history mandates practical concerns.[lxii] Strategies for corporate climate accountability that aim to create individual claims against corporate polluters for people negatively impacted by climate change are laudable and should be explored; however, governments are far better suited to take on corporations than any other kind of party. In this context, Green Amendments bridge the gap between the public interest in corporate accountability and the possibility of it ever occurring. Considering the current impracticality of any proposed amendment to the federal Constitution surviving the Article V process, our focus should be on enacting Green Amendments at the state level.[lxiii]  Doing so would allow public interest organizations, communities impacted by climate change, and individual plaintiffs to force their governments to effectively pursue corporate accountability.

Of course, states do not need Green Amendments to pass environmental protection legislation, and state courts do not need Green Amendments to cultivate a public trust doctrine friendly to plaintiffs in corporate climate liability cases.[lxiv] However, Part I explains how Green Amendments have the capacity to expand the regulatory power of states in the context of holding corporations accountable for their contributions to climate change in several ways, including enabling Due Process claims for non-state parties who wish to challenge transactions between the state and a corporation that will contribute to climate change (as in In re Application of Maui Elec. Co.) and enabling courts to overrule other laws that make it easier for corporations to pollute ecosystems (as in Park County. Environmental Council v. Montana Department of Environmental Quality). In addition, when paired with a state government willing to prosecute corporations for their previous polluting activities (either at a local or global level, as the Rhode Island cases show) Green Amendments serve as an effective connection between the public interest in a clean environment and the state’s ability to punishing those who violate it. Most importantly, Green Amendments can impose duties on their states to protect citizens’ right to a clean environment from the impacts of climate change, as the interpretation of Montana’s Green Amendment in Held exemplifies.  

c. Implications of the Held Decision for Green Amendments

The Held court’s explanation of Montana’s Green Amendment provides the blueprint for connecting corporations’ past contributions to climate change to legal causes of action that seek to hold those corporations accountable. Acknowledging that existing climate-related harms violate Green Amendment rights, and that the state has a duty to take action to reestablish those rights,[lxv] opens the door for future litigation, as states would be forced to address climate harms, including by holding accountable the corporations most responsible for them. Specifically, constitutionally-mandated state action will necessarily cost money, and that money should come from the small number of private corporations most responsible for creating harmful climate impacts, not the public.

The particulars of this theory of liability escape the scope of this note, and are better left to future scholars, however the Rhode Island cases outlined in Part I may be a particularly good place to start. There, based on its Green Amendment, the state court upheld fines levied against a polluting corporation without requiring a showing that the corporation was aware of the harm it was causing.[lxvi] Then, the Green Amendment was cited by the state in its climate liability lawsuit against the major oil and gas producers.[lxvii]

Conclusion: Closing the Gap

Green Amendments enable the pursuit of corporate accountability in a number of ways, interacting with the legal doctrines of their respective states to create unique legal landscapes that are friendlier to plaintiffs seeking to see corporate polluters held accountable. Compared to statutes, Green Amendments are better suited to endure political shifts in state legislatures. So far, no Green Amendment has ever been removed from a state constitution.

J.B. Ruhl, in a 1997 article titled “An Environmental Rights Amendment: Good Message, Bad Idea” argued that Green Amendments are unnecessary in light of existing environmental regulations, and posited that this same concern killed a proposed national Green Amendment in 1968.[lxviii] Ruhl was wrong about the efficacy of then-existing environmental protection laws in stopping climate change; in a larger sense, the existing framework of environmental protection in the US has erred in how it attributes liability for the climate change currently harming individuals and communities across the country. We should not be so confident as to believe that merely drafting new legislation, or crafting new legal arguments built around existing legislation or common law will protect future generations and punish the right parties. Our climates and corporations move faster than legislatures. Thus, the goal of a common right to a clean environment itself must be codified in our governments’ foundational documents in ways that ensure those governments actively protect the public environment by punishing the corporations most responsible for climate change; Green Amendments allow us to accomplish this.
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[i] Much of the foundational research and ideas behind this paper grew from my work on a forthcoming note to be published in the Indiana Journal of Law and Social Equality, which focuses on the potential impact of Green Amendments in addressing environmental injustice, specifically in the context of corporate climate liability litigation. I am indebted to my notes editor, Briana Elizondo, and the entire IJLSE staff for their help with that note, which allowed me to create this one. Noah Hines, Corporate Climate Litigation and Environmental Justice: How Green Amendments Can Be Used, 12 Ind. J. L. & Soc. Equal. ___ (2024).

[ii] As measured by entering “climate impacts” into Google Books Ngram viewer, an online tool that scans available books for terms entered by the user. “Books Ngram Viewer” Google (last visited Sept. 1, 2023), https://books.google.com/ngrams/graph?content=climate+impacts&year_start=1800&year_end=2019&corpus=en-2019&smoothing=3.

[iii] “2021 Northwest Heat Dome: Causes, Impacts, and Future Outlook” USDA Climate Hubs (last visited Sep. 4, 2023), https://www.climatehubs.usda.gov/hubs/northwest/topic/2021-northwest-heat-dome-causes-impacts-and-future-outlook.

[iv] Maya K. van Rossum, The Green Amendment: Securing Our Right to A Healthy Environment (2017). Van Rossum has specific qualifications for what she considers to be true “Green” Amendments to state constitutions, and not all environmental rights amendments satisfy these qualifications. For the sake of consistency, I will be referring to all current and potential amendments to state constitutions that enshrine a right to a clean or healthful environment as “Green Amendments” in this note.

[v] Id.; see also, Green Amendments: Vehicles for Environmental Justice, 51 Envtl. L. Rep. (ELI) 10903, 10904 (2021).

[vi] Johanna Adashek, Do It for the Kids: Protecting Future Generations from Climate Change Impacts and Future Pandemics in Maryland Using an Environmental Rights Amendment, 45 Pub. Land & Resources L. Rev. 113, 129-30 (2022).

[vii] Pen. Const. art. 1 § 7; Mon. art. 9 § 1; Ill. Const. art. 11 § 2; Haw. Const. art. 9 § 8; Mass. Const. art. 49; R.I. Const. art. 1 § 17; N.Y. Const. art. 1 § 19.

[viii] Paul Griffin, CDP Carbon Majors Report 2017, The Carbon Majors Database (2017), https://cdn.cdp.net/cdp-production/cms/reports/documents/000/002/327/original/Carbon-Majors-Report-2017.pdf?1501833772; William C.C. Kemp-Neal, Environmental Racism: Using Environmental Planning to Lift People Out of Poverty, and Re-Shape the Effects of Climate Change & Pollution in Communities of Color, 32 Fordham Envtl. L. Rev. 295, 304 (2021).

[ix] The final step here, drawing funds from the party most responsible for the harms caused by climate change, is mentioned but not focused on in this note.

[x] While Green Amendments also create greater opportunities for states to mitigate future contributions to climate change, this note is focused on accountability rather than mitigation.

[xi] Richard Hale, “Update of Carbon Majors 1965-2018” Climate Accountability Institute (2020), https://climateaccountability.org/pdf/CAI%20PressRelease%20Dec20.pdf.

[xii] Kemp-Neal, supra note 8.

[xiii] See “2021 Northwest Heat Dome”, supra note 3.

[xiv] Stacey Sublett Halliday, Daniel M. Krainin, Julius M. Redd, Sarah A. Kettenmann, & Anthony G. Papetti, New York Becomes the Third State to Adopt a Constitutional Green Amendment, The Nat. L. Rev. (Oct. 24, 2022), https://www.natlawreview.com/article/new-york-becomes-third-state-to-adopt-constitutional-green-amendment.

[xv] Id.

[xvi] 1978 Constitutional Convention, The Hawai’i State Constitutional Convention Clearinghouse, https://hawaii.concon.info/?page_id=214 (last visited Nov. 11, 2022).

[xvii] Illinois Commission on Intergovernmental Cooperation, Chronology of Events Surrounding the 1970 Constitutional Convention, 4 (1988), https://www.ilga.gov/commission/lru/Chronology.pdf.

[xviii] Genevieve Bombard, Joshua Kapczynski, Azania Maitland, Catherine Reed, Imari Roque & Hoshi Salcedo, The Precedents and Potential of State Green Amendments, The Rockefeller Institute, 10 (2021), https://rockinst.org/wp-content/uploads/2021/07/CLPS-green-amendments-report.pdf [hereinafter The Rockefeller Institute].

[xix] Areas of Practice, Article 97, McGregor, Legere & Stevens PC, https://www.mcgregorlaw.com/areas-of-practice/105-article-97 (last visited Nov. 18, 2022).

[xx] Pennsylvania Department of Conservation & Natural Resources, The People’s Right to a Clean Environment (May 12, 2021), https://www.dcnr.pa.gov/GoodNatured/pages/Article.aspx?post=171.

[xxi] R.I. Const. art. 1 sec. 17. Rhode Island did not officially adopt its state constitution until 1842.

[xxii] Barry E. Hill, Environmental Rights, Public Trust, and Public Nuisance: Addressing Climate Injustices Through State Climate Liability Litigation, 50 Envtl. L. Rep. 11022 (2020).

[xxiii] Sean Lyness, The Local Public Trust Doctrine, 34 Geo. Envtl. L. Rev. 1, 11 (2021).

[xxiv] The Rockefeller Institute, supra note 18, at 10.

[xxv] Com. by Shapp v. Nat'l Gettysburg Battlefield Tower, Inc., 311 A.2d 588, 589 (1973).

[xxvi] Id. The construction of the tower was the result of a deal struck between the National Park Service and National Gettysburg Battlefield Tower, Inc., a private corporation.

[xxvii] Id. at 591.

[xxviii] Robinson Twp., Washington Cnty. v. Com., 83 A.3d 901, 913-16 (2013).

[xxix] See Pen. Const. art. 1 § 7; Robinson Twp., supra note 28, at 955.

[xxx] Id.

[xxxi] In re Application of Maui Elec. Co., Ltd., 408 P.3d 1, 5-6 (2017).

[xxxii] Id.

[xxxiii] Id. at 6.

[xxxiv] Id. at 5.

[xxxv] The Rockefeller Institute, supra note 18, at 17.

[xxxvi] Id.

[xxxvii] Park Cnty. Env't Council v. Montana Dep't of Env't Quality, 477 P.3d 288, 299 (2020).

[xxxviii] Mont. Const. art. II, § 3.

[xxxix] Mont. Const. art. IX, § 1.

[xl] Park Cnty. Env't Council v. Montana Dep't of Env't Quality, 477 P.3d 288, 296 (2020).

[xli] Power Test Realty Co. P'ship v. Coit, 134 A.3d 1213, 1219 (R.I. 2016).

[xlii] Id.

[xliii] Id. at 1221.

[xliv] Pl. Compl. at 138-39, Kilmartin v. Chevron et al, No. PC-2018-4716 (Bristol Cnty, R.I., Superior Ct., submitted Jul. 2, 2018) (This complaint is available online as well. “State of Rhode Island” The Center for Climate Integrity (last visited Sep. 1, 2023), https://climateintegrity.org/cases/rhode-island.).

[xlv] Id. at 96.

[xlvi] Id. at 97, 98.

[xlvii] Id. at 98.

[xlviii] Similarly significant could be a holding that the citizens of Rhode Island are being harmed by Chevron and other corporations’ contributions to climate change in Kilmartin v. Chevron. See Pl. Compl., supra note 44.

[xlix] Here again it is worth noting that major progress toward corporate accountability can be made within states whose legislatures are currently not interested in sweeping environmental protection; it was the Green Amendments, not legislation, that established Pennsylvania and Montana’s affirmative duties to protect their citizens from environmental degradation.

[l] See Generally Richard B. Stewart, A New Generation of Environmental Regulation?, 29 Cap. U. L. Rev. 21, 21-38 (2001) (explaining the existing environmental regulatory system in the US).

[li] See Generally Karen C. Sokol, Seeking (Some) Climate Justice in State Tort Law, 95 Wash. L. Rev. 1383 (2020).

[lii] Green Amendments: Vehicles for Environmental Justice, supra note 5, at 10904.

[liii] Id.

[liv] BLACK'S LAW DICTIONARY 1360 (6th ed. 1990).

[lv] Tammy Wyatt-Shaw, The Doctrine of Self-Execution and the Environmental Provisions of the Montana State Constitution: "They Mean Something", 15 Pub. Land L. Rev. 219 (1994).

[lvi] Id. at 225-226 (“Mandatory-prohibitory provisions present an easy case … [a]ny legislation which is contrary to the principle contained in a mandatory-prohibitory provision may be struck down as unconstitutional.”).

[lvii] See David M. Gareau, Allowing A Cause of Action to Arise Directly from A Violation of the Ohio Constitution, 43 Clev. St. L. Rev. 459, 487-484 (1995) (explaining how courts in various states address the question of self-executing constitutional provisions.).

[lviii] Id. at 481; Shields v. Gerhart, 658 A.2d 924, 928 (1995).

[lix] As van Rossum explains: “The language needs to talk about the rights of all people. Ideally, the language is generational. It needs to be clear about the kind of rights that we're talking about--things like clean water and clean air and healthy environments as opposed to the right to navigate waterways. Those are just fundamentally different.” Green Amendments: Vehicles for Environmental Justice, supra note 5, at 10904.

[lx] Edith Brown Weiss discusses these ideas at length in a previous article of hers, which includes ample references to other works on this topic. Our Rights and Obligations to Future Generations for the Environment, 84 Am. J. Int'l L. 198, 204 (1990).

[lxi] Recall that only the Green Amendments of New York, Pennsylvania, and Montana currently exist within their states’ bill of rights. See discussion of Green Amendment placement in note 22.

[lxii] Jeff Desjardins, “The Most Valuable Companies of All Time” Visual Capitalist (last visited Sep. 1, 2023), https://www.visualcapitalist.com/most-valuable-companies-all-time/.

[lxiii] However, a national Green Amendment does become more possible as more state-level Green Amendments are enacted. Hines, supra note 1, at ___ (explaining how public awareness of environmental issues increasing at the state level is often reflected by changes to national environmental policy); see U.S. Const. Art. V.

[lxiv] Even states with Green Amendments do not always rely on them in corporate climate liability litigation, exemplified by the relatively small role the Green Amendments of Illinois and Massachusetts play in such litigation.

[lxv] See discussion on pages eleven and twelve of Part I.

[lxvi] Power Test Realty Co. P'ship supra note 41.

[lxvii] Pl. Compl. supra note 44. The obvious differentiator in this context is that Rhode Island is actively trying to punish a polluter, not being forced by citizen plaintiffs to do so.

[lxviii] J.B. Ruhl, An Environmental Rights Amendment: Good Message, Bad Idea, 11 Nat. Resources & Environment 46–49 (1997).