Maya K. van Rossum is the Delaware Riverkeeper and founder of Green Amendments for the Generations.
Climate change is already impacting Delaware communities. Rising sea levels are increasingly encroaching on ecosystems and communities with climbing floodwaters. Increasing saltwater intrusion is infecting forests, freshwater resources, farmlands and drinking-water wells.
Swift action is essential at all levels of government to avert the worst of the climate crisis. The scientific consensus is clear: We have a mere 10 years to take meaningful action to curb climate-changing emissions.
This is among the reasons why the U.S. Supreme Court ruling in the case West Virginia v. Environmental Protection Agency — in which a majority of the justices undermined the agency’s authority pursuant to the Clean Air Act for addressing climate-changing emissions from existing pollution sources — is so concerning for all Delawareans.
In Delaware, it is not just climate change that is of environmental concern. Delaware has the highest percentage of rivers and streams nationwide that fail to meet water-quality standards necessary to protect waterways for drinking, fishing, swimming and recreation, according to analysis by the Environmental Integrity Project. Assessment by the American Lung Association shows that air pollution also remains a concern for many Delaware communities.
And an environmental justice review led by the Union of Concerned Scientists, among others, documents that communities of color in the state continue to unfairly and disproportionately suffer the health, economic and quality-of-life impacts of environmental pollution and degradation.
Given this backdrop, having the U.S. Supreme Court signal a willingness to undermine federal environmental protections demands that Delaware take strong and comprehensive action at the state level to dramatically increase environmental and climate protection. Passing one more state law or regulation will not provide the broad protection necessary to address threats to water, air, climate, ecosystems and the problem of systemic environmental racism.
To transform Delaware’s existing environmental protection system in a meaningful and timely way, environmental rights must be recognized and given the same constitutional standing as other fundamental rights, such as speech, property and religious freedoms. A number of states, Delaware among them, are already on this constitutional path, advancing green amendments that will recognize clean water and air, a stable climate and healthy environments as fundamental rights, entitled to the highest legal protection. The need to proceed with this direct expression of constitutional protection for the environment was further illustrated in the recently decided Dobbs v. Jackson Women’s Health Organization case, in which the U.S. Supreme Court made clear that absent express, explicit and direct constitutional recognition, courts are not obligated to honor essential rights, freedoms and human health needs.
State passage of a constitutional green amendment can help fill gaps and provide the oversight our courts and our current system of environmental laws and governance so clearly need. A Delaware environmental-rights amendment is achievable in the near term through the constitutional-amendment process of the state — a process that requires passage twice by successive Delaware legislatures. Protective amendments of this kind already exist in neighboring Pennsylvania, nearby New York and in Montana as well. Among the dozen other states across our nation that are also on the green-amendment path are New Jersey, just across the Delaware River, as well as Maryland. It would be a stunning gap in protection for our region if all of our neighboring and nearby states had constitutional environmental rights while Delawareans did not.
We are at a pivotal moment for our state, nation and world. Environmental degradation is affecting all aspects of our lives and putting at risk the health and safety of future generations. At the same time, the U.S. Supreme Court is taking and undermining critical protections for all corners of our society — from women’s rights to protections from gun violence to the devastating consequences of environmental pollution and degradation.
State action to fill the breach is essential on all fronts. Sometimes, more laws will help. But when it comes to the environment, we have plenty of laws; what we need now are state-level green amendments, with one ultimately passed at the federal level when the seeds for success have been sown.
Delaware has long been recognized as a leader in legislative environmental protection — it is time for the state to become a leader in constitutional environmental rights, by putting in place the Delaware green amendment.