Racial Justice Demands Constitutional “Green Amendments”

Following the brutal murder of George Floyd, the American public has taken to the streets, demanding systemic change to end racism. Far from seeing this murder, or those of Tamir Rice, Michael Brown, Breonna Taylor, Rayshard Brooks, Eric Garner and others, as isolated instances of malice, Americans now widely acknowledge how failures in policing, educational opportunity, and judicial policy all work to disadvantage Black Americans, along with Native Americans, and other communities of color.  

Black Americans already suffer three times more COVID infections than their white counterparts, and their death rate is six times greater than whites. That’s in part because Black Americans are more likely to have jobs on the front lines, increasing their exposure to COVID-19. Facing structural barriers to healthcare, Black Americans, like other communities of color, are also more likely to suffer from the underlying conditions that increase the odds of hospitalization and death from COVID-19. But amongst the more insidious and under-acknowledged reasons for the higher death toll from COVID-19 for Black Americans, Native Americans, and other communities of color is “environmental racism.”   

That means that while we rally to reform policing, and work to end all forms of systemic inequality, we cannot neglect the environment.  We can’t achieve true racial equality without achieving environmental equality. And doing that requires more than another law, policy, or program. To overcome the deeply entrenched, and sadly racialized environmental inequality that plagues our country, we must instead use the strategy that ended slavery, secured voting rights, and promised due process protections for all people: our state and federal constitutions. 

Environmental racism is just too widespread and ingrained in our society to entrust to politics and politicians. You see environmental racism in the slow response to Hurricane Katrina and the Flint water crisis, both of which would have garnered swift and robust responses had they occurred in wealthy, white communities. Because of systemic discrimination and lack of opportunity, you also see it in American social geography.  Communities of color disproportionately live in environmental sacrifice zones, where industrial contaminants, pollution, and other poisons degrade water, air, and soil, causing heart disease, asthma, cancer, compromised immune systems, and other serious illnesses. As a result, and regardless of economic status, Black people in America are 1.54 times more likely than their white counterparts to breath the fine particulate matter that leads to heart attacks, cancer, low birth weights, high blood pressure, and even premature death. Hispanics and Native Americans too suffer higher rates of dangerous airborne pollution. Over half of people living within 1.8 miles of hazardous waste facilities are Black Americans and other communities of color, and they must endure the health, quality of life, and economic harms that result. In neighborhoods with multiple hazardous sites, this percentage soars to as high as 69 percent. Dangerous air pollution levels around public schools also disproportionately affects Black, Hispanic, Asian/Pacific Islander, and low-income children, leading to higher rates of exposure to neurotoxicants like lead, mercury, and cyanide compounds. And a recent tour of the Chaco Canyon region in New Mexico demonstrates with devastating clarity, indigenous communities continue to serve as environmental and fossil fuel sacrifice zones with drilling sites, wastewater pits, and truck traffic overwhelming the people, lands, homes, and landscapes found there.   

Time and again, environmental leaders have turned to state and federal legislatures to solve environmental degradation and have achieved important progress through noble legislative milestones like the Clean Water Act, Clean Air Act, and Safe Drinking Water Act. But environmental harms persist and grow, with communities of color disproportionately, and increasingly, on the front lines. Constitutional protection, through the passage and enforcement of what I call  “Green Amendments,” is our only hope for reversing this trend and making lasting progress.  

I don’t mean to suggest that constitutional recognition is an instant solution, as the troubled history of race relations since the passage of the thirteenth, fourteenth and fifteenth amendments sadly makes clear. But constitutional recognition is an important precondition for lasting and enduring change. It was through the constitution that we ended segregation in public schools, and protected the rights of same- sex couples to marry.  In addition to serving as the supreme law of the land, constitutional protection inspires and defends the activism, protest, litigation, and righteous indignation that ultimately secures and locks in progress.   

And unlike many well-meaning laws, constitutional protection leads to tangible results. In 2013, for example, Pennsylvania’s environmental right’s amendment (it’s “Green Amendment”) protected vulnerable communities from increasing and irreversible environmental harm and economic ruin. Under a lax legal regime, the fossil fuel industry’s shale gas extraction and drilling activities overwhelmed Pennsylvania communities, contaminating drinking water, emitting dangerous toxins into the air, disrupting communities with truck and industrial machinery traffic, releasing climate changing emissions, destroying forests, and wreaking harm on community peace. After the legislature passed a new law allowing the industry to escalate these environmental and community harms, there was only one tool available to stop the law and its increasing environmental devastation: the Pennsylvania constitution’s environmental rights amendment. The victory we secured on the basis of Pennsylvania’s Green Amendment was a turning point—the foundation for a new strategy to protect our threatened environments and residents. The victory also demonstrates that it’s not through the federal constitution  alone that people can defend their inalienable rights – there’s also tremendous power in constitutional protection at the state level too. Unfortunately, Pennsylvania is one of only two states with a Green Amendment that recognizes and protects clean water, clean air, a stable climate and a healthy environment as inalienable rights worthy of highest constitutional protection – we need them in the other forty-eight states and ultimately at the federal level to forever end environmental racism.  

The brutal murders of Black Americans have sparked a proactive uprising with communities joining together to demand that cities, states, and our federal government demilitarize and retrain our police, and address the racial inequities within our medical, judicial, and educational systems. But even if we eliminate police violence, and overturn all other economic disparities, racial inequality will persist if we don’t solve environmental racism. It’s time to reclaim our environmental rights, and protect our communities and natural landscapes from government-sanctioned violence. The only way to do this is through our constitutions. Let’s champion Green Amendments in state constitutions across our nation, and build momentum to secure one in our federal constitution, so that we can truly deliver on the promise of racial, and environmental, justice for all.