Please note that views presented in blog articles are those of the author, not those of the Wisconsin Department of Justice, the section, nor the State Bar of Wisconsin.

On April 16, 2025, a group of Wisconsin legislators announced their proposal to enshrine a right to clean water, air, and soil in the Wisconsin Constitution. In part, the proposed amendment reads:

The people, including future generations, have the right to a clean, safe, and healthy natural environment, including clean water, clean air, healthy soils, self-sustaining ecosystems, and a safe and stable climate, and to the preservation of the natural, cultural, and healthful qualities of the environment. These rights shall never be infringed, shall be subject to strict scrutiny review in court, shall be protected equitably for all communities in the state, and are self-executing.

The “green amendment” must proceed through the full amendment process before it becomes enshrined in the Wisconsin Constitution. That process requires a majority vote in both houses of the legislature during two consecutive legislative sessions, and ratification by a majority vote of the statewide electorate.

An Overview of Green Amendments

Green amendments are self-executing provisions, found under a constitution’s Bill of Rights, which guarantee individual rights to environmental essentials such as clean and healthy air, water, and environments. Found in three state constitutions, green amendments first gained relevance during the environmental movement of the 1960s and 70s.^[1] In 1971, Pennsylvania became the first state to adopt a green amendment, with Montana following suit in 1972. Five decades later, New York adopted a green amendment in 2021.

Several other states – including Hawaii, Illinois, and Massachusetts – have adopted constitutional provisions related to environmental protection, but not in their Bill of Rights.

Judicial Treatment of State Green Amendments

Consulting jurisprudence from states with comparable constitutional amendments helps to gauge the potential impact of a green amendment in Wisconsin.

Pennsylvania. Decided in 1976, Payne v. Kassab was one of the first major cases to test Pennsylvania’s green amendment. Considering a challenge to a street-widening project in a scenic and historic area, the Payne court held that the “new amendment speaks in no such absolute terms” as to create an “automatic right to relief,” despite its inclusion in Pennsylvania’s Declaration of Rights.^[2] The court ultimately permitted the construction project to move forward, reasoning that a balance must be struck between the new amendment and the Commonwealth’s obligation to maintain an adequate public highway system. The Payne decision represented a near-immediate devaluation of the green amendment and remained the guiding case on Pennsylvania environmental rights litigation for decades.^[3]

In 2013, a landmark decision by the Pennsylvania Supreme Court in Robinson Township v. Commonwealth partially restored the green amendment’s status as a fundamental right. In this case, a coalition of plaintiffs challenged a provision of a state oil and gas statute which removed regulatory hurdles for entities seeking to drill near bodies of water. Noting that “some properties and communities will carry much heavier environmental and habitability burdens than others,” the court found that “[t]his disparate effect is irreconcilable with the express command that the trustee will manage the corpus of the trust for the benefit of ‘all the people.’”^[4] The challenged statutory provisions were ultimately struck down as unconstitutional, but the holding in Robinson Township was a plurality, rather than majority, opinion.

Robinson Township led the court to completely redevelop its green amendment jurisprudence. In 2017, a majority opinion from the Pennsylvania Supreme Court in Pennsylvania Env't Def. Found. v. Commonwealth (PEDF) adopted Robinson Township’s core principles and made many of them binding legal precedent. First, the court declined to apply the Payne balancing test, noting that the test “strips the [green amendment] of its meaning.”^[5] The court further noted “[t]he Commonwealth's fiduciary duty to ‘conserve and maintain’ our public natural resources is a duty owed to the beneficiaries of the public trust, namely ‘the people, including generations yet to come.’”^[6] Finally, the court affirmed that the public trust provisions of the green amendment are self-executing against the government.

As a whole, the Robinson Township and PEDF decisions represent a drastic departure from Payne, as well as a full-throated endorsement of the judicial enforceability of Pennsylvania’s green amendment.

Montana. Montana’s green amendment remained effectively dormant until 1999, when the Montana Supreme Court held that the two separate provisions of the state’s green amendment – one of which falls outside the state’s Bill of Rights – must be read together as a fundamental right.^[7]

Through a series of subsequent cases, the Montana Supreme Court continued to develop its green amendment jurisprudence. In 2001, the Court invalidated a contract requiring a party to drill and test a well because performance of the contract created a “very real possibility of substantial environmental degradation,” which is, “most importantly, not in accord with the guarantees and mandates of Montana’s [green amendment].”^[8] The Court also held in a pair of cases that the green amendment does not support a cause of action for money damages when adequate alternative remedies exist under the common law or statute.^[9] In 2020, the Court struck down amendments to the Montana Environmental Policy Act (MEPA) that prohibited equitable relief for violations of the Act, because it was irreconcilable with the green amendment.^[10]

In 2024, the Montana Supreme Court decided Held v. Montana, wherein a group of 16 Montana youth residents initiated litigation against the state, challenging a MEPA provision that “forbids the State and its agents from considering the impacts of greenhouse gas emissions or climate change.” The district court had previously ruled in favor of the plaintiffs, holding that Montana had violated the state’s guarantee to a clean and healthful environment. The court found the MEPA limitation to be a facial violation of the green amendment that was not narrowly tailored, nor did it further a compelling state interest. The Montana Supreme Court affirmed the district court’s ruling, holding that “Montana’s right to a clean and healthful environment and environmental life support system includes a stable climate, which is clearly within the object and true principles of the Framers inclusion of the right to a clean and healthful environment.”

New York. Adopted in 2021, New York’s green amendment has been the subject of limited litigation. Within the past four years, environmental advocacy rooted in New York’s green amendment has been largely unsuccessful. New York courts have held that the amendment is not retroactive^[11] and that the amendment is self-executing and allows enforcement against the government, but it does not necessarily govern the rights of citizens against private individuals.^[12] Like Pennsylvania and Montana, New York’s green amendment jurisprudence will take more than four years to develop.

Conclusion

The Wisconsin green amendment proposal is far from codified. Even so, environmental rights litigation in Pennsylvania, Montana, and New York serves as a useful guide to the potential impact of enshrining a green amendment in the Wisconsin Constitution.

This article was originally published on the State Bar of Wisconsin’s Environmental Law Section Blog. Visit the State Bar sections or the Environmental Law Section webpages to learn more about the benefits of section membership.

Endnotes

[1] Richard O. Brooks, A Constitutional Right to a Healthful Environment, 16 VT. L. REV. 1063, 1063-64 (Spring 1992). ↩

[2] Payne v. Kassab, 468 Pa. 226, 361 A.2d 263, 273 (1976). ↩

[3] John C. Dernbach, et. al., Recognition of Environmental Rights for Pennsylvania Citizens: Pennsylvania Environmental Defense Foundation v. Commonwealth of Pennsylvania, 70 Rutgers U.L. Rev. 803, 813 (2018). ↩

[4] Robinson Twp., Washington Cnty. v. Com., 623 Pa. 564, 83 A.3d 901, 980 (2013). ↩

[5] Pennsylvania Env't Def. Found. v. Commonwealth, 640 Pa. 55, 161 A.3d 911, 930 (2017). ↩

[6] Id. at 934. ↩

[7] Montana Env't Info. Ctr. v. Dep't of Env't Quality (MEIC), 988 P.2d 1236, 1237(Mont. 1999). ↩

[8] Cape-France Enterprises v. Est. of Peed, 29 P.3d 1011, 1017 (Mont. 2001). ↩

[9] See Shammel v. Canyon Res. Corp., 167 P.3d 886 (Mont. 2007); Sunburst Sch. Dist. No. 2 v. Texaco, Inc., 165 P.3d 1079 (Mont. 2007). ↩

[10] Park Cnty. Env't Council v. Mont. Dep't of Env't Quality, 477 P.3d 288 (Mont. 2020). ↩

[11] W. New York Youth Climate Council v. New York State Dep't of Transportation, 224 N.Y.S.3d 790, 805 (N.Y. Sup. Ct. 2024). ↩

[12] See Fresh Air for the Eastside, Inc. v. State, No. E2022000699, 2022 WL 18141022 (N.Y. Sup. Ct. Dec. 20, 2022). ↩