Could an Arizona amendment that protects environmental rights be passed?

Signs posted at Oak Flat campground protest the possibility of the federal government clearing the way for a copper mine on the land held sacred by the Apache and other Arizona tribes near Oak Flat.

Arizona state Sen. Juan Mendezwaswritingabillto strengthen water protections in Arizona when helearned about anemerginglegal idea that he now believes could provide even stronger and broader protections for the environment.

The idea camefrom Maya van Rossum, a lawyer and environmental activistwhose organization successfullybrought down a pro-fracking lawin 2013 usingaseldom usedenvironmental rights amendment inPennsylvaniasconstitution. The state’s bill contains an amendment that states that people have a rightto clean air, water, and preservation of the environment.

Since then, van Rossum has been urging other states to adopt similar amendments.

NowMendezwantstoamend Arizona’s constitution to recognize the rights to a clean, healthy environment. The amendment is three sentences long and would effectively make environmental rights equal to free speech, freedom religion, gun rights, and other rights in the state.

Juan Mendez is a state senator from Tempe.

Mendez (D-Tempe) believes that a green amend could address a number of ongoing problems, including the Hot buttonsituation in Oak FlatThe proposed copper mine in the area has sparked environmental and Indigenous activists.

The right to a healthy environment isa conceptsomegovernment bodies across the world have beenconsideringrecently.

In October, a month before theclimate conference in Glasgow, the United Nations Human RightsCouncilrecognized the Human right to a clean, sustainable, and healthy environment environment.About amonth later, New York ratified an amendment to its state constitution, recognizing the right to ahealthyenvironmentin the bill of rights.

More than 150 countriesAll countries recognize some degree of the right to a healthy environment in their constitutions. According to several experts in international environment law, the United States is not one of the few.

Activists are tryingto solve thatwithenvironmental rights amendments, also known as green amendments. This would modify thebillof rightsin state constitutionsto recognize a right to a healthyenvironment.

What does it mean for the environment to be a human right?

According toChinosoAnozie a law professor at Arizona State University specializing in environmental justice, elevating a clean and healthy environment to a human right places the environment on a higher pedestal.

When you speak of human rights, you mean the inalienable human rights that are attached to all human beings. Anozie stated that these rights cannot be taken away from people, including their right to privacy and the right for them to live a normal life. When you view some of these issues as human right, it raises the consciousness. It raises the awareness of some of these rights.

The U.N. Human Rights Council Resolution follows decades of efforts linking environmental problems to human right issues, which proponents argue are inextricably related.

Jim Anaya is an international law professor who was also a former U.N. special raporteur on Indigenous rights. He said that in the mid-1990s, international human rights institutions began to link specific environmental issues with human rights violations.

Anaya stated that there is a growing awareness that the environment and the enjoyment of human rights are interconnected. Human rights are affected almost invariably when the environment is altered.

The resolution received 43 votes in support and no votes against. Russia, China, India, and Japan were the only countries that did not vote. The United States isnt eligible to vote after the Trump administrationwithdrewfromthe Human Rights Councilin2018.

Before the resolution, lawyers needed to prove how certain environmental problems, like mining, climate change anddeforestation,affected existing human rights, like the rights to life and health, according to ASU law professor Dan Bodansky, who specializes in international environmental law.

In one case in the early 2000s,the Inuit people filed a complaint againstthe U.S. government forfailing tocontributeadequatelyto climate mitigation efforts andfor the countrysoutsized role incausingglobal warming.Thepetition saidglobal warming harmedthe Inuit peoples human rights, including their rightstolife, property,healthand subsistence. The petitioners spent considerable time and effort arguingthatclimate change had affected those human rights.

The petition was not granted. The court said that the United States cannot be held solely liable for global warming. The new Human Rights Council resolution allows lawyers to not only show how environmental problems affect other human rights but also to argue directly that certain actions are in violation of the humanright to a healthy environment.

Bodansky said that I believe (the resolution will be used). It’s unclear how successful it will prove to be. Each country will have their own opinions on how much weight to this resolution.

The solution is not binding in the United States. Courts are often reluctant to give international law weight.

Most courts in most countries look to international documents and international standards to strengthen and interpret domestic law. Anaya stated that many constitutions, if not all, require that international human right standards be applied by the courts, or at least used as an interpretive tool.

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In countries that have rights language for the environmental, there is no guarantee they will be used. Sarah Porter, director at ASU’s Water Policy Center, pointed out South Africa which has a constitutional rights to water. However, in 2018, Cape Town, the largest city in South Africa, nearly ran out of water. The government declared a national emergency.

Porter said that the constitutional right to water did not make a difference in solving all of these problems associated with securing water supplies for a growing population.

Anaya called this resolution a moral policy document and said that any government body, including the Phoenix City Council or the Arizona Legislature could adopt it.

Anaya stated that Arizona does not need a constitution provision to allow different government agencies to pay attention to the document and be guided by it. Some may argue that the document is not binding. You don’t need to make it binding for a good idea to be valid.

“Green amendments” may offer legal teeth

While itsunlikelythat the Human Rights Council resolution will hold much weightin U.S.courts,activistsarepursuingothermechanisms to give the right to ahealthyenvironment legal authority.

The state legislature passed the law despite the protests of Van Rossum, an environmental activist. Butvan Rossum (an attorney) decided that the law was severe enough to warrant legal action.

She discovered that Pennsylvania had an amendement to its bill of rights, which recognized the right to a clean environment. The amendment was ratified by the legislature in the 1970s, but had not been used effectively since the courts determined that it was meant to be a statementof policy only.

Van Rossum stated that we gave legal life to the long-ignored amendment on environmental rights. This overturned 42 years of bad precedent.

Van Rossum looked through state constitutions and found that Montana had a comparable amendment that was ratified during the 1970s. She later invented the term “green amendment” and advocated for green amendments to be adopted by other states and eventually, the United States.

Since then, green amendments have been used in Pennsylvania to stop it from being dissolved. Diverting fundsThis money should have been used to protect natural resources and to fund the general operating budget. It also could have been used to stop Montana from issuing permits. Industrial gold miningoperations. Municipal officials also used green amendments as support for their decisions Certain development projects are unacceptable.

Van Rossum states that New York, Montana, Pennsylvania and New York have all adopted green amendments. Twelve more states are also considering them.

While many state constitutions contain language that is related to the environment, they are not as strong as a green amend.

Many states include environmental concerns in their constitutions. Van Rossum said that some states even mention environmental rights. But they immediately undermine the authority and meaning of the provision by changing where they place the language and how they craft it.

According to van Rossum a green amend must contain a few items. It must be included in the bill of right and self-executing. This means that the amendment is immediately effective and doesn’t need any legislation. It must clearly define that it protects life-sustaining elements of nature like clean water, air, and land. Italso mustapply to alllevelsofgovernmentthatare bound under the states constitution,includingcity councils, regulatory agencies, the governors office and thestate legislature.

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Van Rossum also recommends that amendments contain language about protecting future generations and current generations.

Many state constitutions assign responsibility to legislatures for managing natural resources, pollution, and other issues. However, van Rossum says that this means that politicians can decide how much, or even if, they want the environment to be protected.

She said that the green amendment limits government authority. It is the people who are expressing concern to the government about their environment rights.

Van Rossum also spoke about the green amendments utility for environmental justice.If a clean and healthy environment is made a human right, it meansmarginalized communities have the same rights astheirmore privilegedcounterparts.For example, if the city were to place a landfill near a marginalized community,itcould potentially becomea constitutional issue, since it would violate theirrightsto a healthy environment.

VanRossum stated that historically, communities of color, Indigenous communities, and low-income communities were sacrificed to protect everyone else. But now, because we all have equal constitutional rights, those communities can now…claim that there has been a constitutional violation.

Cori Bell, an attorney from the Natural Resources Defense Council said that green amendments enable states to assess a project’s overall cost to the environment. This is significant because environmental laws are often separate, with the state treating clean water and clean air separately.

Agencies might not be considering the cumulative impact of a specific project. They will issue a Clean Air Act permit separately from a Clean Water Act permit. Bell stated that there may not be an assessment of all environmental harms associated with a project. These amendments to the environmental rights permit that. These amendments allow you to look at the total impact of our projects. This is very important.

Although some may be concerned about green amends opening the floodgates to litigation, Bell stated that she doesn’t believe this is true.

People who are interested in bringing lawsuits under these Amendments are often very careful about the facts. It’s an important right that you don’t want to be undermined by bad lawsuits.

Bell stated that she sees these amendments as the beginning of an environmental activism movement.

She stated that she is optimistic that New York will be the catalyst for the new green wave.

Could a green amendment be used in Arizona to save Oak Flat

Mendez, who considers himself one of Arizona’s most progressive legislators, decided to pursue a Green Amendment after hearing Van Rossum speak at an event for legislators interested on the environment.

He said that he likes the idea because it is proactive and doesn’t require a court to resolve environmental problems.

According to the Rockefeller Institute ReportThe green amendment “shifts burden of proof to those who would pollute.” According to the report, in theory, it is up to would-be polluters, not communities, to prove that they won’t cause harm.

Hewrote the billlast year, but itultimatelyfailedtoevenreceive a hearing in theNatural Resources, Energy and WaterCommittee.

Sen. Sine Kerr (R-Buckeye), who chairs the committee, did not return repeated calls for comment.

Mendez saidmanymembers of the Republican-controlled Legislaturearent interested in creating stronger protections for the environmentfor fears it might hurt development.He saidtheydontwantto do anything that would give someonepause about moving to Arizona.

Mendez stated that it’s almost like a strange, unspoken sin that we are not supposed to do anything that hinders growth or development. Anything that acknowledges that water is running out is unacceptable.

Mendez believes that the amendment could give lawyers a stronger argument to approachthe casein Oak Flat.

Oak Flat is on federal land. Therefore, Arizona’s state constitution won’t apply to Oak Flat. Oak Flat would become private property if it was transferred to Resolution Copper, a mining company. Mendez’s policy advisor believes there is strong evidence that private land actions would need to be in compliance with state law.

Michael Nixon, a national lawyer in environmental and cultural resourceslawyer, and the lead counsel forApachestrongholdin the Oak Flatcase, stated that a green amend “could only aid” the Oak Flat case. He said Mendez’s amendment is thoughtful.

“These types intelligent and creatively proposed laws will face an uphill battle because of the forces industrialists have and the entrenched corporate interest that have captivated these natural resources not only for their own purposes but also for a lot of politicians through whom laws must be passed by a majority,” Nixon stated.

Mendezsaid it was important to draw attention and explain why he still supports the amendment, even though it is unlikely that it will be ratified.

People believe there are laws protecting the environment. It’s frightening for them to find out that there isn’t any law that actually protects the environment in an proactive way, he said. It is my responsibility to facilitate this conversation. So even though the Arizona Legislature can’t guarantee that deliberation will take place on our bills, I’m trying my best to get it going on the public to force the Legislature to address the issue.

Zayna Sayed is an environmental reporter with The Arizona Republic/azcentral. Follow her reporting on Twitter at@zaynasyed_and send tips or other information about stories tozayna.syed@arizonarepublic.com.

The Nina Mason Pulliam Charitable Trust has provided funding to support environmental coverage on azcentral.com. Follow The Republic environmental reporting team atenvironment.azcentral.comand@azcenvironment onFacebook,TwitterandInstagram.

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