A serene view of Allagash Lake from the shore of Ledge Point Campground. John Ewing/staff photographer, file
State legislatures are getting another opportunity to consider the Pine Tree Amendment, a law that would give voters the ability to incorporate the right to a clean and healthy environment into the Maine constitution.
If approved, Maine would join seven other states to enshrine environmental protections in its state constitution, alongside such celebrated rights as free speech, the right to bear arms and equitable compensation for government confiscations of private property.
“Without clean air, clean water and stable ecosystems, we would struggle to exercise other rights,” said Rep. Maggie O’Neil, D-Saco, the sponsor of the bill. “Before I can voice dissenting opinions or have my home cleared of improper searches, I need clean air to breathe.”
But first, proponents must overcome lawmakers’ concerns that LD 928 would essentially shift regulatory power from local and state governments to the courts and could lead to a series of costly, frivolous, and industry-scary lawsuits.
“My concern is unintended consequences,” said Rep. Michael Soboleski, R-Phillips. “It casts a very wide net. Someone driving a snowmobile, the exhaust fumes from their machine. A guy who goes snowshoeing doesn’t want to smell fumes. Who has the right there?”
Such concerns derailed last year’s version of the bill, which twice failed to achieve the two-thirds majority needed to pass a constitutional amendment. In the first vote in the House of Representatives, she failed by five votes. In the second, the lead grew to 13 votes. The Senate never voted on it.
A three-hour public hearing on the latest version of the bill drew strong support from environmental groups and youth activists, and respectful opposition from industry groups including farmers, contractors, forest products and the Maine State Chamber of Commerce.
Supporters of the Pine Tree Amendment rallied during a March 2022 legislature session at the Maine State House in Augusta. Joe Phelan/Kennebec Journal
Thornton Academy senior Cole Cochran, 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 protection work, but it needs to do more, he said.
“I’m old enough to have seen the swings of politics,” said Cochrane, who will start at Harvard University this fall. “I think it’s imperative that we have a policy that protects the foundations of environmental rights and can last for future generations, regardless of who holds the office.”
Audrey Hufnagel, a Lincoln Academy junior from Damariscotta, said the Pine Tree Amendment unites people around the idea of protecting the outdoor places they love and making Maine a unique and special place. For them it is the Damariscotta River.
“When I was younger, I explored the banks of the river and collected mud and shells,” said Hufnagel. “Now in the summer I like to go jogging or kayaking along the river with my friends. Last summer I was working on studying shellfish populations in the estuary.”
The state chamber said the change was not necessary. If LD 928 is adopted, the organization warned, it could slow the permitting process and result in unintended job and investment losses that would hurt Maine’s economy.
“We would ask the question – is there an issue that isn’t being addressed?” asked Ben Lucas, the chamber’s senior government relations specialist. “All you have to do is look out the window and see that protecting our environment in Maine is a priority for everyone.”
Patrick Strauch, executive director of the Maine Forest Products Council, said the bill would introduce uncertainties that would hurt his industry at a critical time, as well as gaining a host of new operations that will require business investment to offset recent industry losses.
“If passed, this law would create an unstable and contentious regulatory environment that would have serious implications for every sector of Maine’s forest industry, from stump to mill,” Strauch warned. “It creates instability in terms of the regulated community.”
Despite these warnings, some pro-business Republicans insist that legal backing is sometimes needed.
“Unfortunately, our government has shown that it cannot always be trusted,” said Sen. Rick Bennett, R-Oxford. “The Pine Tree change will help preserve the harmonizing elements of our way of life, our shared values and our shared culture.”
Government agencies in the mill administration had mixed views on the proposed change.
The Maine Department of Environmental Protection, which opposed the first version of last year’s bill, had no opinion and said it was too early to know the impact of such a constitutional change. The Maine Department of Transportation rejected the bill.
“A declaration in the Maine 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 determined by litigation and precedent.”
In written testimony, Meghan Russo, chief of legislative and constituent services at the Maine Department of Transportation, warned lawmakers of the potential for a whirlwind of litigation that could halt any project.
“Its passage could allow any person or entity opposed to a proposed MaineDOT project, whether it is a bridge replacement, railroad rehabilitation, bike path construction, port development and everything in between, to pursue a legal challenge file to stop the project,” Russo wrote.
The amendment would require the state to consider environmental impact as a guiding principle before passing any law, policy, regulation or permit, and give residents the right to challenge that decision when all else fails and ignores or disregards their right to a clean environment becomes .
Opponents claim the amendment’s language is so vague and broad that it could suffer the same fate as the recently adopted Right to Food Amendment voters adopted in 2021. Hunters are using the change to try to lift Maine’s longstanding ban on Sunday hunting.
Proponents have said the legal standing granted by the bill could help Maine residents affected by chemicals, mining projects, pollution from fish farms and South Portland residents’ concerns about emissions from oil tank farms.
Lobster fishermen worry it would give environmental groups the right to challenge the state’s lobster licensing program, but note that it could help them fight big wind projects that threaten to crowd them out of productive fishing grounds.
According to the National Caucus of Environmental Legislators, environmental health clauses in the Montana and Pennsylvania state constitutions have been used in civil lawsuits over mining, sewage sludge, water quality, and access to environmental protection funds.
These states changed their constitutions in 1971. Hawaii, Illinois, Massachusetts and Rhode Island have since followed suit, according to Professor Anthony Moffa of the University of Maine Law School. In 2021, New York will become the youngest state to enshrine a right to a healthy environment into its constitution.
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