The first modification of the Constitution after it was adopted, emerged to remedy a concern over the vulnerability of States to private and foreign lawsuits that would essentially, nullify their authority to make laws at all. The 11th Amendment extends the right of sovereign immunity to States. States can waive this immunity, and sometimes they do. But courts have long upheld sovereign immunity (as long as it does not interfere with the 14th Amendment’s abolition of slavery).

Sovereign immunity is a handy tool in the tool chest that can be used in defense of environmental laws. Clean air, clean water, and preservation of nature are, after all, sovereign interests within a state’s borders. They can can and should be spelled out as such. That relates to States though, not local governments.

Local efforts to create a more democratic and sustainable world through environmental laws will inevitably receive opposition not only in enacting them, but also afterwards in lawsuits brought by wealthy corporations trying to remove them, proportional to the boldness of the law and the disposable wealth of the opposition. The mere threat of costly litigation is enough to intimidate local municipal governments into submission, even before they act.

We often hear that cities and town are our laboratories of innovation. This can be true as well for innovation in environmental protection. Maine is a home rule authority state. As the Constitution of the United Stated devolves unclaimed authority to the States under the 10th Amendment, so too, do home rule authority States devolve authority to local municipalities.

By explicitly stating that municipal governments are protecting vital State sovereign interests in their efforts to protect air quality, water quality, and natural preservation, as well as home rule authority­ – municipalities are acting as an arm of the State. These magic words can extend the right sovereign immunity to municipalities and help empower them to guard against the chilling effects of lawsuits in protecting these environmental interests.

See Eben Rose Webpage:

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