California Advances Green Amendment and Polluter Pays Climate Legislation

The Golden State is a step closer to enshrining the right to a healthy environment in its constitution, and to making Big Oil help pay for climate damages.

In July 2022 the United Nations General Assembly adopted a historic resolution formally recognizing that a clean, healthy, and sustainable environment is a universal human right. Although not legally binding, the resolution makes an important statement of principle: “that nobody can take nature, clean air and water, or a stable climate away from us – at least, not without a fight,” in the words of UN Environment Program Executive Director Inger Andersen. The UN tweeted that recognition of this environmental right “is expected to be a catalyst for #ClimateAction,” and supporters hoped it would encourage more countries and states to take further action to legally secure the right through constitutional amendment or legislation. According to a 2021 report, over 100 countries already had constitutional recognition of the right to a clean, healthy and sustainable environment, and several regional human rights treaties also recognized it. And as of February this year, additional nations such as Canada had formalized recognition, bringing the total to 161 out of 193 UN member states that have incorporated this right into domestic law.

Legal recognition brings the right out of the realm of the symbolic and gives it the potential for enforcement. In an ideal world, people wouldn’t need to go to court to enforce their human rights from government infringement, but unfortunately that is not our reality. With increasing understanding that the climate crisis threatens human rights on a massive scale, the adoption into domestic law of the right to a healthy environment is a form of climate action, providing citizens an avenue for holding governments accountable to their obligation to not exacerbate climate change and environmental damage. In the US, this right was used to defeat a pro-fracking law in Pennsylvania and to invalidate a law in Montana banning state regulators from taking climate change and greenhouse gas emissions into account in environmental reviews during the permitting process. Both Pennsylvania and Montana enshrined environmental rights into Article I of their constitutions (where fundamental rights are generally outlined) in the 1970s. In 2021 voters in New York approved a proposal to amend that state’s constitution to recognize such a right (also in Article I), making it the third state in the US to adopt a so-called constitutional “green amendment.” Several other states have environmental rights provisions in their constitutions, but not in the bill of rights section up top where it really matters, according to Maya van Rossum, an environmental advocate and attorney who coined the term “green amendment” and founded a grassroots movement pushing for its adoption in states across the country.

I reported on this campaign a few months ago and spoke with a state lawmaker in California who introduced a green amendment proposal for the Golden State in January. Assembly Constitutional Amendment 16 (ACA-16) would amend the California constitution to recognize in Article I that “the people have a right to clean air and water and a healthy environment.” California Assemblymember Isaac Bryan, lead sponsor of the bill, told me he is optimistic it would clear the Assembly by June and eventually make it onto the ballot in November, where California voters would decide whether or not to adopt this environmental rights recognition. If California were to approve it, it would mean that 1 in 8 Americans would have legal recognition of the fundamental right to clean air and water and a healthy environment, he said.

The state legislature took a step toward that objective today by advancing ACA-16 out of committee in the Assembly; the proposal passed out of the Appropriations Committee on May 16, and will now advance to a vote by the full lower legislative chamber. By the end of next week, California’s green amendment could pass the full Assembly.

Climate advocates in the state are rallying behind this legislative initiative, with nearly 100 organizations across California formally backing it.

“ACA 16 is game changing legislation that would enshrine our right to a safe and livable planet. We have a right to not be poisoned by toxic pollution and unsafe environmental conditions,” Nicolas Gardner of Sunrise Movement LA said upon the bill’s passage through the Assembly Natural Resources Committee last month.

With ACA-16 now moving to a full floor vote, it’s “a huge step towards guaranteeing every person’s right to a healthy environment,” Hollin Kretzmann, a senior attorney with the Center for Biological Diversity’s Climate Law Institute, told me. “We all deserve clean air and water and a healthy climate, so it’s important that we enshrine these rights in the state constitution just like other states have,” he said.

Bryan argues that constitutional recognition of environmental rights is necessary for California to “continue making equitable environmental progress” and to help insulate its hard-won climate and environmental measures from potential rollbacks. Adoption of a green amendment, he told me, is an urgent priority. “It’s something that should have been done many years ago. Now is the right time, many years ago was the right time. We are behind, all of us, in the fight to preserve and to create a sustainable planet.”

The California Chamber of Commerce is a lead voice opposing California’s green amendment proposal, arguing it is too generalized and vague and could open the door to numerous legal challenges to development projects in the state.

Bryan responded to that claim in a recent interview with ABC10, noting that in New York there are some lawsuits citing that state’s green amendment where the state is using its authority to hold polluters accountable. “What I think [the Chamber] is afraid [of] is the people of California will have a new tool to hold polluters accountable, and that new tool scares them a little bit.”  

As the Los Angeles Times editorial board explains in an April 24 editorial endorsing the proposal advancing to the November ballot: “Enshrining environmental rights in California’s constitution would give citizens a new tool to hold the government accountable for failing to act in the interest of environmental health, protection and justice. That could, in turn, force the state to crack down on polluters.”

Bill to Make Big Oil Pay for Climate Costs Moves Forward

Another bill swiftly moving through the California legislature that would more directly hold corporate climate polluters accountable is SB 1497, the Polluter Pays Climate Cost Recovery Act. It’s California’s version of so-called “climate superfund” bills proposed in several other states like New York and Vermont. Modeled after the federal Superfund program that holds polluters liable for hazardous waste contamination, these bills seek to make large fossil fuel extractors and refiners – companies like Chevron and ExxonMobil – liable and force them to help pay for their role in contributing to heat-trapping emissions that are fueling damaging and costly climate impacts, from torrential flooding and sea level rise to lethal heat and worsening wildfires. California is already spending billions of dollars responding to climate-related disasters, and the intent of the legislation is to shift some of this cost burden from taxpayers onto the fossil fuel corporations that are profiting from the extraction of these planet-wrecking fuels.

“As the state faces a [budget] deficit, the polluters who profited from causing the climate crisis must pay their fair share. The legislature needs to pass this crucial bill to make them do it,” said Kassie Siegel, director of the Center for Biological Diversity’s Climate Law Institute.

California’s legislature took a step forward on this front as SB 1497 advanced out of the Senate Appropriations Committee Thursday on a 5-2 vote. It will next be voted on by the full Senate. Should the bill pass there by the May 24 deadline, it will then move on to the Assembly.

New York’s climate superfund bill passed the state senate last year but did not advance in the state’s Assembly. Vermont’s version of the bill has now passed the full legislature and is expected to become the first of these polluter pays climate bills to get enacted into law, which would be a groundbreaking development in climate accountability. For more on that, check out this new Wicked Problems podcast episode where I discuss the backdrop for Vermont’s legislation and explain why it is so significant.

Vermont may be the first state to hold Big Oil liable for climate pollution; will California be next? Also, will California become the fourth state to enshrine the fundamental right to a clean and healthy environment in its constitution? This all remains to be seen, but for now, California is making progress on both fronts.

“California is putting people over polluters with both of these bills,” Kretzmann told me. “We’re taking our right to a healthy environment and clean air and clean water seriously by moving these two crucial bills forward.”