Michelle Henkin always assumed she had a right to things like clean water and fresh air.

Then the New Harbor woman read about a growing movement to create constitutional rights to a healthy environment, and she did some research.

“It’s not written down in the constitution anywhere, either in Maine and federally, and I never realized that,” she said.

Henkin and Anne Burt of Edgecomb, a friend and fellow environmentalist, launched a campaign to change Maine’s Constitution, a daunting process that requires the support of lawmakers from both parties and a majority of Maine voters. The Pine Tree Amendment is now poised for a vote before the full Legislature as soon as this week and could appear on the November ballot.

Proponents say the amendment would require lawmakers to consider the environmental impacts, based on scientific evidence, before voting on policy proposals, while also giving residents the legal standing to challenge any law, policy or permit approval that would have adverse environmental impacts.

But, as with the constitutional right to food sovereignty approved by Maine voters last year and a right-to-privacy amendment that also is before the Legislature, opponents argue that the amendment is so broad that it would lead to unnecessary litigation and unintended consequences.

The bill, sponsored by Sen. Chloe Maxmin, D-Nobleboro, has the support of Sen. Rick Bennett, R-Oxford. But other Republicans on the Environment and Natural Resources Committee voted against it, joining the Maine Municipal Association and Maine State Chamber of Commerce in opposition.

Maxmin said a constitutional right is needed because state lawmakers and governors can roll back existing laws that protect the environment.

“It’s the climate crisis and really watching other state legislatures rolling back key environmental protections and seeing this trend of our environmental and climate laws being at the whim of the political winds, instead of rooted in science and reality,” Maxmin said of her support for the measure.

Proponents point to the state’s approval of using sludge contaminated with so-called forever chemicals to fertilize farmlands, as well as mining projects, the disposal of out-of-state trash and South Portland residents’ concerns over oil tank farm emissions as reasons why the amendment is needed.

But state agencies have expressed concerns. The Maine Department of Environmental Protection testified against the original version of the bill. A spokesperson said the department did not have a position on the amended version, which removes phrases including “pure water,” a standard that opponents argued would be impossible to meet.

Meghan Russo, manager of legislative and constituent affairs for the Maine Department of Transportation, raised concerns in an email to some lawmakers earlier this year. Russo said the department supports the goal of having a healthy environment but worried that the amendment could be used to stop bridge replacements, bike-path construction, port development and other projects.

“That opposition could make the argument that the project in question infringes upon their right to a clean and healthy environment,” Russo wrote on Jan. 22. “As many of you know, our process, whether dictated by federal oversight on federally funded projects, or state requirements on state funded projects, already requires and allows for significant public involvement.”

Henkin dismissed those types of concerns as “knee-jerk reactions.”

While a handful of states have some mention of environmental rights in their state constitutions or are pursuing amendments, only Pennsylvania and Montana have longstanding constitutional language similar to Maine’s proposal, according to advocates. Both of those states enacted those amendments in the 1970s. New York joined them last fall, they said.

Maine’s Legislature has considered 22 constitutional amendments during the current session. Only three are still alive.

In addition to the healthy environment proposal, South Portland Democratic Rep. Lois Reckitt’s proposed Equal Rights Amendment still faces final votes, even though the measure fell short of the two-thirds threshold needed in initial votes in the House and Senate. And Saco Democratic Rep. Maggie O’Neil’s amendment proposing a right to privacy was pared down and came out with a split committee vote recommending passage.

Last fall, Mainers voted overwhelmingly to amend the state constitution to add a right to food, even though few people understood the practical impact of the amendment. The referendum asked voters if they favored an amendment to the Maine Constitution “to declare that all individuals have a natural, inherent and unalienable right to grow, raise, harvest, produce and consume the food of their own choosing for their own nourishment, sustenance, bodily health and well-being.”

Maine became the first state to enact such an amendment. And while the impacts are not yet known, several experts predicted the new constitutional language will need to be interpreted by the courts.

Dmitry Bam, vice dean and provost at the University of Maine School of Law, said the scope of the proposed constitutional right to a healthy environment also would have to be decided by the courts, because the language is so broad. Courts likely would defer to a state agency’s analysis about whether a specific policy or approval was in line with the intent of the constitutional right, he said.

Bam said lawmakers would have little leeway to clarify the intent of such an amendment because a constitution by its very nature acts to restrain governmental action.

“Putting an amendment in place, if you’re an attorney, you have an avenue to challenge any regulation,” Bam said.

Nick Jacobs, an assistant professor of government at Colby College, said constitutional amendments have the advantage of carrying more symbolic weight than a law and can be a way of overcoming gridlock. But there is a downside to that as well, he said.

“What they’re really doing is farming out the work of policy implementation to courts and to lawyers,” Jacobs said, adding that courts are less accountable and less democratic than legislatures. “It overcomes gridlock and people tend to think of that as an advantage, but you pass the buck.”

John Lambert Jr., a Portland-based civil litigation attorney, described the proposed amendment as a “lawyers’ relief act” because of the wording. He said he believes the amendment will “become a sword against the state.”

“It’s just hopelessly vague,” Lambert said. 

But other constitutional rights are also vaguely worded, noted John Dernbach, director of the Environmental Law and Sustainability Center at the Widener University Commonwealth Law Center in Pennsylvania, which has a similar amendment in its constitution.

Dernbach has been following court cases that cite Pennsylvania’s amendment and said the concern about a litany of court challenges has not borne itself out. Instead, he said the cases tend to be used to cover environmental concerns not directly addressed in existing laws.

“This doesn’t turn everything upside down,” Dernbach said. “In many cases, the environmental rights amendment has the effect of filling gaps in existing statutory and regulatory programs.”

Dernbach said Pennsylvania’s amendment, enacted in 1971, was largely ignored until 2013, when a plurality of justices on the state Supreme Court cited the amendment to deem portions of a state law on shale gas drilling unconstitutional, because it upended local zoning and allowed drill sites everywhere, including in residential neighborhoods.

Another state Supreme Court ruling cited the amendment in 2017, Dernbach said. In that case, he said, revenue from shale gas drilling leases on public lands was being being used by state lawmakers to balance the state budget. But a majority of the court ruled that shale gas was a public natural resource and that any revenue generated from those leases should be used to conserve and maintain public natural resources generally.

“It’s fair to say that the revitalization of the Pennsylvania amendment has generated a lot of interest in a lot of places for comparable amendments,” Dernbach said.

Maine’s proposal, which is modeled after Pennsylvania’s, is being supported by the Maine Youth for Climate Justice, a coalition of people under the age of 30 advocating for bold climate action.

“As youth, we will live to see the effects of climate change and environmental degradation,” wrote Hallie Arno, on behalf of the group. “If we do not act, it will be us and our children who will not have clean air to breathe, water to drink, or functioning ecosystems to rely on. We will feel the effects of a crisis we did not create. It is critical that we take action now to protect the environment, and therefore our futures.”

Bennett, the Republican state senator, said the Pine Tree Amendment is a “common sense” measure to prevent governmental overreach.

Bennett opposed the Central Maine Power transmission corridor that was stopped last fall through a citizen referendum. However, he said his support for the amendment doesn’t stem from any specific issue, but out of an “abiding belief in the importance of our environment.”

“It’s sort of the thing people feel they already have a right to a clean and healthy environment,” Bennett said. “This would just enshrine that in the state’s founding document in a way that would be helpful to communicate to Mainers and the world beyond that this is important to us.”

Henkin said she expects a close vote in the House when the measure is brought forward.

“We hope it prevails this year,” she said. “If it doesn’t, we’ll just keep at it.”

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