Nevada Trucking Association
State lawmakers have rarely produced anything as sobering as Assembly Joint Resolution 3 (AJR 3, sponsored by Assemblywoman Sarah Peters).
AJR 3 was a constitutional amendment declaring the inalienable right of Nevadans to a clean and healthy environment.
Sounds great, until you realize that the devil is in the details. Beneath its green aspiration, AJR 3 was booby-trapped with vague language and alarming state powers.
As written, AJR 3 would have put a legal sledgehammer into the eager hands of activists, nonprofits, or the ordinary citizen who wants to attack an industry. It had the potential to crush virtually any project that would build, mine, or manufacture useful things.
Trucking has no quarrel with a clean and healthy environment. Our industry has evolved steadily toward that goal. For example, it would take 60 of today’s new, clean powered, diesel trucks to equal the emissions of just one truck from a generation ago.
But trucking joined forces this year with other industries and labor unions oppose AJR 3, and thankfully, it did not pass. Here were a few of our worries.
The provisions of AJR3 raised more questions than they answered. Under the amendment, the state (and all government agencies in Nevada) would be obligated to enforce every individual’s right to a clean and healthy environment. Does that mean the government could have taken actions that no statute authorizes it to take? Almost certainly.
Would each person’s “inherent, inalienable, indefeasible and self-executing right to a clean and healthy environment,” invite litigation by private parties for perceived violations of those rights? It’s an engraved invitation, delivered on a silver platter.
By the way, whip out your law dictionary and take another look at that language. It appears the bill’s authors were stacking the deck for future court battles. “Indefeasible” means “cannot be defeated.” And “self-executing” means “immediately enforceable,” simply because there is a document declaring it.
No other steps needed on the road to enforcement. That suggests an alarming absence of due process.
If you doubt AJR3 would have been an obstacle to growth and progress, look to Montana, where a similar constitutional amendment defeated the state’s oil and gas permitting process this summer.
In Held v. Montana a group of children, ages 2-18, sued the state. The kids belonged to Montana’s politically-connected class, including the offspring of a Democratic candidate for the governor’s office. Their suit successfully overturned a provision in the Montana Environmental Policy Act (MEPA), barring consideration of how pending energy projects might affect climate change.
The court ruled that the MEPA provision is unconstitutional, as follows:
“By prohibiting consideration of climate change, [greenhouse gas] emissions, and how additional GHG emissions will contribute to climate change or be consistent with the Montana constitution, the MEPA limitation violates plaintiffs’ right to a clean and healthful environment.”
The Montana court also went so far as to acknowledge Montana’s contribution to global climate change. Could a Nevada judge open a similar door?
The potential harm from AJR 3 would extend to a wide array of projects that promote the public good. Any citizen could sue to halt a solar installation, a water project, or a health care facility.
No longer would mining minerals (even for electric car batteries) be challenged on behalf of a toad or a flower. The new plaintiff would be a Nevada third-grader with an “indefeasible” right to prevent the project’s environmental impact.
AJR 3 did not survive the 2023 Nevada legislature, but don’t be shocked if we see it again.