PPH - Pine Tree Amendment would enshrine a constitutional right to a clean environment

Supporters say it would give Mainers legal standing on issues such as PFAS and mining, but critics say it is too vague and would lead to endless litigation.

March 23, 2023
BY PENELOPE OVERTONSTAFF WRITER

State lawmakers are getting another chance to consider the Pine Tree Amendment, a bill that would give voters an opportunity to add the right to a clean and healthy environment to the Maine Constitution.

If approved, Maine would join seven other states to enshrine environmental protection in its state constitution alongside such celebrated rights as freedom of speech, the right to bear arms, and just compensation for the government seizure of private property.

"Without clean air, clean water and stable ecosystems, we would have trouble enjoying any other rights," said Rep. Maggie O'Neil, D-Saco, the bill's sponsor. "Before I can engage in dissenting speech or have my home be free from unreasonable search, I need to have clean air to breathe."

But first, supporters must overcome lawmakers' concerns that L.D. 928 would essentially transfer regulatory power from local and state governments to the courts, and could lead to a succession of costly, frivolous, and industry-chilling lawsuits.

"My concern on this is unintended consequences," said Rep. Michael Soboleski, R-Phillips. "This throws a very wide net. Somebody out snowmobiling, the fumes from their machine. A guy out snowshoeing doesn't want to smell fumes. Who has the right there?"

Such worries derailed last year's version of the bill, which twice came up short of the two-thirds majority needed to pass a constitutional amendment. In the first House vote, it failed by five votes. In the second, the margin grew to 13 votes. The Senate never voted on it.

A three-hour public hearing on the latest version of the bill drew a lot of support from environmental groups and youth activists and respectful opposition from industry groups, including farmers, builders, forest products, and the Maine State Chamber of Commerce.

Thornton Academy senior Cole Cochran, a co-founder of Maine Youth Action, warned lawmakers that climate change poses an imminent, existential threat to the future of Maine's forests, rivers and mountains. Maine has done good climate action work, but it must do more, he said.

"I am old enough to have seen the swings of politics," said Cochrane, who is heading to Harvard University this fall. "I find it imperative we have a measure that protects the basics of environmental rights as well as something that can last for future generations, regardless of who holds office."

Lincoln Academy junior Audrey Hufnagel of Damariscotta said the Pine Tree Amendment unites people around the idea of protecting the outdoor places they love and that make Maine a unique and special place. For her, it is the Damariscotta River.

"When I was younger, I explored the shores of the river, collecting mud and shells," Hufnagel said. "Now, I like to go on runs along the river or kayak with my friends in the summer. Last summer, I worked doing research on shellfish populations in the estuary."

The state chamber said the amendment is not needed. If adopted, the organization warned, L.D. 928 could slow down the permitting process and lead to unintended job and investment losses that would hurt Maine's economy.

"We would pose the question - is there a problem not being addressed?" asked Ben Lucas, the chamber's senior government relations specialist. "All one needs to do is to look out the window and see that protecting our environment in Maine is everyone's priority."

Patrick Strauch, executive director of the Maine Forest Products Council, said the bill would cause uncertainty that would hurt his industry at a critical time, just as it is gaining a variety of new operations that require business investment to help make up for recent industry losses.

"Should it pass, this bill would create an unstable and litigious regulatory environment that would have a severe impact on every sector of Maine's forest industry, from stump to mills," Strauch warned. "It creates instability in terms of the regulated community."

Despite these warnings, some pro-business Republicans insist a legal backstop is sometimes needed.

"Sadly, our government has shown that it cannot always be trusted," said Sen. Rick Bennett, R-Oxford. "The Pine Tree Amendment will help safeguard the harmonizing elements of our way of life, our shared values, and our common culture."

State agencies in the Mills administration offered differing opinions about the proposed amendment.

The Maine Department of Environmental Protection, which opposed the first version of last year's bill, had no opinion, saying it was too early to know the impact of such a constitutional change. The Maine Department of Transportation opposed the bill.

"A statement in Maine's Constitution that every citizen has the right to a clean and healthy environment would reflect Maine's values," said DEP Commissioner Melanie Loyzim. "Its actual effect would only be established through litigation and judicial precedent."

In written testimony, Meghan Russo, manager of legislative and constituent services at the Maine Department of Transportation, warned lawmakers of the potential for a whirlwind of litigation that could stop any project in its tracks.

"Its passage could allow any one person or entity who opposes a proposed MaineDOT project, anywhere from a bridge replacement, rehabilitation of rail lines, construction of a bike path, or port development and all points in between, to bring a court challenge halting the project," Russo wrote.

The amendment would require the state to consider environmental impacts as a guiding principle before adopting any law, policy, rule or permit, and give residents the legal standing to challenge that decision if all else fails and their right to a clean environment is ignored or flouted.

Opponents claim the amendment language is so vague and broad that this amendment could suffer the same fate as the recently adopted right to food amendment that voters approved in 2021. Hunters are using the amendment to try to overturn Maine's longtime ban on Sunday hunting.

Supporters have said the legal standing granted by the bill could help Maine residents impacted by forever chemicals, mining projects, fish farm pollution, and South Portland residents' concerns over oil tank farm emissions.

Lobstermen worry it would give environmental groups standing to challenge the state's lobster licensing program, but note it might help them fight against large wind projects that threaten to squeeze them out of productive fishing grounds.........................................

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