State Constitutional Environmental Rights Provisions
Sierra Club wanted a hearing, not a verdict. In 2015 it asked Hawaii's Public Utilities Commission for permission to intervene in a routine proceeding approving a power purchase agreement with a plant that burned bagasse, a sugarcane byproduct, alongside a number of other fuels including coal and petroleum, arguing that the plant's heavy reliance on coal threatened its members' interest under the state constitution's own environmental rights clause. The commission said no. The Hawaii Supreme Court, three justices to two, said the commission was wrong to shut the door, and in doing so built a model for what a right to a clean and healthful environment is worth that looks nothing like Pennsylvania's or Montana's, even though all three states wrote something close to the same promise into their own constitutions.
Article XI, Section 9 of Hawaii's constitution guarantees each person a right to a clean and healthful environment, "as defined by laws relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources." In re Application of Maui Electric Co., 141 Hawai'i 249 (2017), held that this guarantee, read together with the state's own public utilities statute, gives rise to a protected property interest under the state due process clause, one substantial enough that denying Sierra Club a chance to be heard on the agreement's environmental consequences violated its members' due process rights. The court did not go on to decide whether the agreement itself was lawful or wise. The intermediate court of appeals had already dismissed Sierra Club's own appeal outright, for lack of appellate jurisdiction, on the theory that the commission's proceeding was never a contested case to begin with; the due process holding is what supplied that missing jurisdiction, and the majority vacated the dismissal and sent the case back to the intermediate court rather than ordering the commission itself to hold any particular hearing. Chief Justice Recktenwald, joined by Justice Nakayama, dissented, warning that the majority's reading of what counts as a protected property interest could carry unintended consequences well past this one proceeding. The right functions here as a key to the courtroom door, not as a standard for what has to happen once someone is inside it.
New York took the opposite path when its own environmental rights amendment, ratified in 2021 as Article I, Section 19, reached an appellate court on facts that look, on paper, like a stronger case than Hawaii's. Residents near an Albany County facility processing shale into aggregate intervened in a state enforcement action, arguing that the Department of Environmental Conservation's continued tolerance of the facility's permit violations, rather than any single decision to grant a permit, was itself violating their constitutional right to a healthful environment. New York's Third Department rejected the claim outright in February 2026, holding that the amendment does not create a self-executing substantive standard sitting above the state's existing environmental regulatory scheme, and that choices about modifying a permit, imposing a penalty or shutting a facility down remain discretionary agency functions the constitution does not convert into a judicially enforceable duty.
Norlite was not the first New York appellate court to reach that conclusion, only the most recent. Nineteen months earlier, in Fresh Air for the Eastside, Inc. v. State of New York, the Fourth Department dismissed a nearly identical suit brought by neighbors of a landfill in Perinton over the same Department of Environmental Conservation's alleged failure to curb ongoing odor and emissions violations, holding that the Green Amendment does not create a private right of action against a private polluter and does not loosen the traditional rule that mandamus will not compel an enforcement agency's discretionary choices. Two different appellate departments, reviewing two different facilities and two different sets of alleged violations, reached the identical structural conclusion about what New York's amendment does not do, and the Third Department's panel in Norlite had the earlier Fresh Air decision available to lean on when it got there.
Lay the readings side by side and the range is stark. Pennsylvania treats trust language as creating fiduciary duties over how public resources get managed. Montana treats a personal right as substantial enough on its own to invalidate a statute. Hawaii treats the same kind of promise as a door-opening interest, entitling a person to be heard without guaranteeing any particular outcome once she is. New York, on the facts Norlite presented, would not go even that far, treating the promise as aspirational against an agency's own enforcement discretion absent something in the text or the legislative record suggesting otherwise.
None of the four courts wrote as though it were choosing between competing models; each wrote as though it were simply reading its own state's text. And in a narrow sense each one was. Hawaii's provision ties the right to "laws relating to environmental quality," a qualifier neither Montana's nor Pennsylvania's carries, which gave the Hawaii Supreme Court somewhere to locate a procedural rather than substantive right. New York's Third Department leaned on the absence of any enforcement mechanism in the amendment's own text and on legislative history it read as disclaiming any expansion of citizens' existing rights against private violators, following the Fourth Department's own reasoning in Fresh Air rather than writing its rule from scratch. The results diverge less because the courts disagree about what a clean and healthful environment means than because the specific fifteen or so words surrounding that phrase differ from state to state in ways a reader skimming the headline promise would never notice. A voter told only the headline promise in any of the four states would have no way to guess which of the four legal postures her own state's version actually carries, since the amendments read almost interchangeably on a ballot and diverge only in the fine print courts end up parsing years later.