New York’s Constitutional Right To The Environment

(ACOEL) | American College of Environmental Lawyers
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On November 4th, by a 2:1 majority, New York voters amended the State’s Constitution to provide a right to the environment for everyone in the State. The New York State Constitution’s Bill of Rights now provides in Article 1 that:

“Environmental rights. Each person shall have a right to clean air and water, and a healthful environment.”

Bills proposing this “Green Amendment” had passed both houses of the state legislature in consecutive two-year sessions, in accordance with New York’s Constitutional amendment procedures. The rights it guarantees are effective from the date of its adoption. It now awaits implementation by all State agencies and local governments.

While the environmental bar and law school professors in New York State had sought recognition of such a self-executing right for two decades, there were objections from some lawyers. For example, several bar associations took no stand, complaining that the words in the Green Amendment are vague and too general, despite the fact that courts have been able to construe the general words “due process of law” to protect the liberties of individuals ever since the Magna Carta. The Farm Bureau, some local chambers of commerce, and associations of local governments also opposed its adoption, evidently worried that ongoing pollution practices might subject them to lawsuits, and a few editorials urged “NO” votes, fearing a glut of new litigation.

Perhaps because of diminished capacity during Covid-19 shut-downs, there were no major environmental campaigns favoring the amendment. The electorates’ decision to add these rights was all the more remarkable because voters, on that same November ballot, declined to adopt proposed constitutional amendments on other topics. Evidently, this reflected voters’ concern that New York was failing to protect human health.

New York City is still recovering from Hurricane Sandy that occurred in 2012, and New Yorkers have grown anxious about escalating climate change impacts. Moreover, while the State has been slow to implement the Legislature’s 2019 “Climate Leadership and Protection Act”, voters are experiencing deteriorating ambient environmental conditions in the wake of localized flash floods and intense weather events, including measurable biodiversity losses that threaten New York agricultural production and threats to wild flora and fauna in New York’s fabled Adirondack & Catskill Forest Preserve, and are concerned about groundwater contamination on Long Island where sole source aquifers supply all the water.

  • Even though former Governor Andrew Cuomo largely ignored the trends in environmental degradation, the Legislature has been more attuned to the public’s growing environmental angst. Assembly Speaker Carl Heastie and Environmental Conservation Chair Steve Englebright, together since 2019 with Senator Andrea Stewart-Cousins, have been leading the legislative effort to rebuild depleted environmental agency budgets. Hailing from Long Island, Assemblyman Englebright led bipartisan support for twice enacting the laws to place the “Green Amendment” on the ballot. 

New Yorkers have long supported nature conservation. The State Forest Preserve’s “forever wild forest land” has been protected in the Constitution since 1894, and New York enacted the nation’s first codified Conservation Law in 1911. Governor Theodore Roosevelt shared New York’s conservation ethic across America, and subsequent governors, including Franklin Roosevelt, Nelson Rockefeller, Hugh Cary, Mario Cuomo and George Pataki, fostered stewardship of ecological and public health.  However, since 2017, environmental degradation has accelerated across New York. On November 4th voters evidently sought to send their State government a message: no more back-sliding on environmental quality. Clean air and water are birthrights.  A more detailed discussion of this topic can be found here:

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(ACOEL) | American College of Environmental Lawyers
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