Path forward is uncertain but the new right would alter legal landscape in the state
By Zachary Matson
A proposed new constitutional right to “clean air and water, and a healthful environment” in New York could be a boon to environmentalists, but its impact is unclear and may take years to play out in the courts.
Environmental lawyers agree that if approved by voters during the Nov. 2 statewide election, the amendment, which would be inserted into the state’s bill of rights, would precipitate new lawsuits as the courts begin the long process of defining how the right will be protected in practice. But they disagree over whether any new litigation will be a trickle or an inundation.
The Adirondacks will surely factor into future litigation under such a constitutional privilege, and it’s unique collection of existing protections and salient environmental issues will shape what impact a new right to a “healthful environment” has on the region.
Opponents of the measure, including the New York Business Council, argue a new constitutional right would flood the courts with lawsuits and empower individual citizens and environmental organizations to challenge new development projects and impede small businesses with frivolous suits and persistent uncertainty.
The amendment’s supporters argue it would simply make real an entitlement most New Yorkers believe they already have.
“New York has been a leader in environmental protection for a long time, and I feel this is something we should have had a long time ago,” said Claudia Braymer, a Glens Falls-based attorney and member of the Warren County Board of Supervisors, adding she thinks the amendment would serve future generations grappling with climate change.
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If approved, the new right could factor in challenges to state and private decisions, give lawyers and plaintiffs a new cause of action in suits, prod state agencies to better enforce existing laws and bolster legislative efforts to strengthen the state’s environmental laws.
“I think it’s another tool in the toolbox,” said Bob Kafin, of Bolton Landing, a longtime environmental lawyer and the former board chair of the Adirondack Council. “Over time people who have felt their rights are being impinged have figured out a variety of ways to enforce them, that’s what will happen here.”
Kafin and other attorneys pointed out that the Green Amendment – a simple statement of 17 words – lacks any defining provisions or specificity over who can sue under the provision and in what situations.
The lack of specificity creates a long list of questions the courts will have to sort out, beginning with what actually constitutes “clean air and water” and a “healthful environment” and who has the standing to sue in what circumstances under the constitutional right.
“The constitutional amendment that’s being proposed doesn’t define anything in it,” said Rob Rosborough, a litigation and appeals partner at Whiteman, Osterman & Hanna in Albany. “The courts are going to be left to define all of this, and it doesn’t really limit who can sue who for what.”
Rosborough, who has worked on Adirondack cases at the State Court of Appeals, said the right is a good idea but its vagaries leave a lot of sorting to be done by judges.
“The idea in and of itself is a good one… but how narrowly that is going to be interpreted by the courts or how broadly it’s interpreted is going to be heavily debated for the next decade,” he said.
Rosborough said that as lawsuits under the right started in lower courts across the state, courts may initially set different standards and legal thresholds in different parts of the state. Over time, discrepancies will be bridged by the Court of Appeals, and case law could take years to take shape.
“You could have a different decision in Long Island than you have in Buffalo or Lake Placid,” he said.
In an explainer posted to the law firm’s website, environmental lawyers at Syracuse-based Bond, Schoeneck and King, which represents businesses, municipalities and other large institutions, laid out challenges and unanswered questions the amendment could raise. Environmental attorneys Robert Tyson and Amelia McLean-Robertson wrote that without more specific language no one knows what the right means, the scope of the protected right or how and when it will have been infringed.
“If the Green Amendment is approved by voters in November, it may lead to disputes and increased litigation, and New York courts will be tasked with interpreting and applying the Green Amendment,” they wrote.
The explainer warned that the courts may establish different standards in different parts of the state, and questioned whether judges would seek to define rules under the new right down to the parts-per-billion. They also noted that local governments may see the liberty as justifying stricter regulation.
“If passed, plaintiffs may view the Green Amendment as an opportunity to directly challenge activities that they consider to be harmful to the environment, to disproportionately impact disadvantaged communities and populations, or indeed, to simply be objectionable and undesirable,” the attorneys wrote.
Plaintiffs bringing lawsuits under existing laws and legal standards may also see the constitutional right as a potentially fruitful additional cause of action, a way to tack on a constitutional claim to the end of a complaint they planned to bring anyway.
Some attorneys pointed out that since there are already different paths to bring environmental lawsuits, a new constitutional right alone isn’t likely to spur a flurry of new suits and frivolous claims.
“I don’t think there are going to be a whole bunch of new challenges just because of this provision, but I could be proved wrong,” Braymer said.
In the park
Environmental litigation under a new entitlement to clean air and water would invariably make its way to the Adirondacks, but the Adirondack Park and the constitutionally-protected forest preserve presents a unique constitutional picture for the courts to consider.
Some attorneys speculated that the impact of a specified right could have a muted impact in some questions of protecting the public lands of the Adirondacks, given that the forest preserve has its own section of protections under the constitution’s Article 14 “forever wild” clause and a century of landmark court decisions.
But the region also faces many of the most potent environmental debates in the state, and some plaintiffs could try to use a new constitutional right to argue that actions emanating in the privately-owned part of the park have a negative impact on the public forest preserve.
“I wouldn’t be the least bit surprised if some of the earliest litigation begins there,” Kafin said of the Adirondacks. “There are private lands that can be used in a way that has an adverse impact on the forest preserve. The constitutional protection of the forest preserve doesn’t help you there, so if you create an additional right to a healthful environment and someone is doing something off of forest preserve land that has an impact on it, you can try to find a way to restrain it.”
The new tool could be used by people impacted by road salt contamination, although lawyers have mixed opinions over how large of an impact it could have for residents, who in many cases have struggled to gain traction in lawsuits against the state.
Dan Kelting, executive director of the Adirondack Watershed Institute at Paul Smith’s College, said, “I love the thought that everyone has a right to clean air and clean water and a healthful environment,” but he wondered what the amendment’s practical impact would be.
“When I first saw it I immediately thought about the people with wells contaminated by salt… does that mean people can use that as a mechanism for getting restitution,” he said. “Does it have any teeth?”
Kafin suggested the Green Amendment could be used by recreational users to press for protections of lakes or rivers that are polluted.
“This may create an additional right to clean water that is more general,” Kafin said.
A nudge for lawmakers
Beyond new ammunition for legal battles, the constitutional change could empower environmental advocates in the political realm. Activists could use the right in seeking legislation and investment as they make their case to lawmakers.
State legislators could also step in to provide further definition of when someone’s right to clean air and water has been violated to boost the ability of environmental and health regulators to act on violations. State lawmakers could also create a private right of action, specifying when individuals could initiate a legal action.
“The legislature could, as it has done in other areas, provide both the authority and funding for enforcement by parts of the government that we usually use to enforce laws,” Kafin said.
The amendment’s backers have argued that enshrining the right would help mitigate a history of pollution and other environmental harms disproportionately impacting marginalized communities.
Peter Bauer, who as executive director of Protect the Adirondacks recently won a landmark ruling on the constitution’s prohibition of removing timber from the forest preserve, likened the proposed new clean air and water right to the constitutional promise of a sound basic education. He said he didn’t have any particular cases in mind if the amendment is adopted.
“It becomes a tool for environmental protection that at this point would be largely aspirational until we start to see how it will be put into practice,” he said. “It’s not like we are waiting for this, we are not sitting here with 15 cases we have dreamed up.”
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Incredible. The epitome of arbitrary and capricious. Absolutely no definition or standard provided. A kindergartener could do better. Just confirms that no man’s/woman’s life, liberty or property are safe while the Legislature is in session.