New York’s Green Amendment: How Guidance from Other States Can Shape the Development of New York’s Newest Constitutional Right

Dechert LLP

Key Takeaways

  • The span of New York’s Green Amendment remains to be seen and will likely be left to the courts to determine.
  • Guidance from other states with Green Amendments—especially those that, like New York, include it in their Constitution’s Bill of Rights—may be a good starting point in assessing how New York’s Green Amendment may shape up in the courts.

Likened by some to motherhood and apple pie, the Environmental Rights Amendment was adopted by New York with a resounding “Yes” on November 2, 2021, with approximately 68% of voters approving the new amendment.1 This amendment, also known as the “Green Amendment” adds the following right to the New York Constitution’s Bill of Rights:

Each person shall have a right to clean air and water, and a healthful environment.2

Many Questions Remain

The impact of this single sentence on New York law remains unclear. The Sponsor Memo provides little in the way of interpretation, but states that the Amendment was spurred by “[r]ecent water contamination and ongoing concerns about air quality,” which it says “have highlighted the importance of clean drinking water and air as well as the need for additional protections.”3 But what those "additional protections" are is unclear.  For example, certain General Assembly members “assured” their colleagues that “this Constitutional Amendment does not” provide “a private right of action for environmental damage,”4 thought on its face, the Amendment provides the right to each person.5 It is also unclear whether, if a private right of action exists, it can be asserted against private companies. And whether individuals could use the Amendment to engage the government in their dealings with private companies also remains to be seen. 

Even fundamental questions have yet to be answered, such as how to define “clean” and “health,” and whether there are penalties for violations. Nor does the Green Amendment provide any guidance as to whether compliance with current regulations will be a safe harbor defense in ligation—for example, by complying with current emissions standards under New York or federal law. 

There is also uncertainty as to how this Amendment will affect state agencies’ and legislative bodies’ policymaking power. While both typically drive environmental policy, that power could now vest with private citizens—prosecuted through the courts—as they pursue litigation consistent with their own environmental ambitions and agendas. In the face of such litigation, courts may be tasked with evaluating the intricacies of environmental policy beyond constitutional boundaries. Such litigation could turn separation of powers on its head by devolving into a judicial evaluation of the merits of a particular economic and environmental policy, rather than just its legality.

Guidance from Other States With Green Amendments

In deciding how to answer the many open questions about the Green Amendment, courts may be guided by interpretation of similar provisions from other states.  The Sponsor Memo for the Amendment stated that it looked to “[s]everal other states including Pennsylvania, Hawaii, Massachusetts and Montana have constitutional protections in place to ensure access to clean air and water” to “follow those models and ensure that clean air and water are treated as fundamental rights for New Yorkers.”Of those states, only Pennsylvania and Montana, like New York, include their Green Amendment in their state Constitution’s Bill of Rights. And New York’s Amendment appears, on its face, to lack some of the features and limitations in similar provisions from other states. Below, we outline how those different amendments have been interpreted by the courts to inform how New York courts may decide the meaning of the Amendment here. 

Pennsylvania

Pennsylvania’s Green Amendment bears some similarities to New York’s, such as its inclusion in the Bill of Rights, that make it a useful framework to assess New York’s Green Amendment. Pennsylvania’s  Environmental Rights Amendment states as follows:

The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic, and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.7

Because the Amendment entrusts the Commonwealth of Pennsylvania with protecting these resources, and therefore courts have imposed limitations on how it may be enforced. First in a plurality opinion, the Pennsylvania Supreme Court reasoned that Pennsylvania’s Green Amendment allowed a legal challenge under the Amendment if either “the government has infringed upon citizens’ rights or the government has failed in its trustee obligations” or both.8 A later decision from the Pennsylvania Supreme Court crystalized this limitation as a restriction primarily on the state. In Pennsylvania Environmental Defense Foundation v. Commonwealth, the Supreme Court explained that the Green Amendment “places a limitation on the state’s power to act contrary to” the Green Amendment.9

Lower courts in Pennsylvania have likewise adopted this view: “The plain language of the Environmental Rights Amendment charges the Commonwealth, as trustee, with the duty to conserve and maintain Pennsylvania's public natural resources, and we are unaware of any case law applying this duty to non-Commonwealth entities.”10 In light of this authority, private action against private companies under the Green Amendment has not yet been endorsed by Pennsylvania courts.

Montana

Like Pennsylvania, Montana includes a Green Amendment in its Bill of Rights: “All persons are born free and have certain inalienable rights. They include the right to a clean and healthful environment.”11 The enforcement of perceived violations of the Amendment, however, appears in a different article of the Montana Constitution, which states that “[t]he State and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations” and “[t]he legislature shall provide adequate remedies for the protection of the environmental life support system from degradation and provide adequate remedies to prevent unreasonable depletion and degradation of natural resources.”12

Montana courts have thus interpreted these two provisions to require strict scrutiny review to “state or private action which implicates either constitutional provision.”13 Montana courts have also permitted private action against a public agency for dealings with a private company on the basis that those dealings were harmful to the environment.14 Though the Montana Environmental Information Center decision leaves open the question of whether a private action may violate the Green Amendment, the focus of litigation under the Green Amendment has been on state (not private) action.

Hawaii

Hawaii’s Constitution states that “[e]ach person has the right to a clean and healthful environment, as defined by laws relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources. Any person may enforce this right against any party, public or private, through appropriate legal proceedings, subject to reasonable limitations and regulation as provided by law.”15 The plain text of the statute suggests that anyone may enforce the right to a clean environment against any party (either public or private), but that the scope of a “clean and healthful” environment is determined by environmental regimes already in place. The Hawaii courts, however, have treated the Green Amendment as conferring a property right. For example, in In re Application of Maui Elec. Co., the Supreme Court of Hawaii held that there was a “protectable property interest” in the “right to a clean and healthful environment guaranteed by article XI, section 9.”16 More recent guidance from the Hawaii Supreme Court confirms the same: “Appellants possess a protected property interest in a clean and health environment under article XI, section 9 of the Hawaii State Constitution[.]”17

Because Hawaii’s Green Amendment was not originally introduced as part of the Constitution’s Bill of Rights, Hawaii legislators recently introduced a bill to add it: “Each person has a right to a clean and healthy environment, including pure water, clean air and healthy ecosystems, and to the preservation of the natural, cultural, scenic, and healthful qualities of the environment.”18 However, because Hawaii treats its Green Amendment more as a property interest more than a fundamental right, Montana and Pennsylvania interpretations are likely more analogous to New York’s Amendment.

Massachusetts

Though the New York legislature also cited Massachusetts’ Green Amendment as precedent, the language of the Massachusetts’ Green Amendment seems to pertain specifically to takings and easements for a “public purpose”:

The people shall have the right to clean air and water, freedom from excessive and unnecessary noise, and the natural, scenic, historic, and esthetic qualities of their environment; and the protection of the people in their right to the conservation, development, and utilization of the agricultural, mineral, forest, water, air, and other natural resources is hereby declared to be a public purpose.19

The Massachusetts Green Amendment further clarifies that “[t]he general court20 shall have the power to enact legislation necessary or expedient to protect such rights.”21 Moreover, “[i]n furtherance of the foregoing powers, the general court shall have the power to provide for the taking, upon payment of just compensation therefor, or for the acquisition by purchase or otherwise, of lands and easements or such other interests therein as may be deemed necessary to accomplish these purposes.”22 Finally, the amendment notes that “[l]ands and easements taken or acquired for such purposes shall not be used for other purposes or otherwise disposed of except by laws enacted by a two thirds vote, taken by yeas and nays, of each branch of the general court.”23

In light of this language, Massachusetts courts have typically evaluated this Amendment in the context of takings or easements.24 And because the amendment vests the general court with the power to protect the environmental rights of the people of Massachusetts, it appears that the general court did not contemplate private causes of action under this Amendment. These features likely make it less analogous to New York’s Green Amendment.

Illinois

The Illinois Constitution states that “[t]he public policy of the State and the duty of each person is to provide and maintain a healthful environment for the benefit of this and future generations.”25 It goes on to state that “[e]ach person has the right to a healthful environment” and “may enforce this right against any party, governmental or private, through appropriate legal proceedings subject to reasonable limitation and regulation as the General Assembly may provide by law.”26 Thus, unlike New York’s Green Amendment, the text of the Amendment suggests it expressly provides for a private right of action against any party—which presumably includes state and private agencies.

The Illinois Supreme Court, however, has construed the Amendment in line with precedent from other states and implemented safeguards against overbroad Green Amendment litigation. Based on the Committee Meeting notes in passing the Green Amendment, the Illinois Supreme Court held that “section 2 gives standing to an individual for a grievance common to members of the public,” but that it “is limited to granting standing and does not create any new causes of action.”27 A subsequent lower court decision has reiterated this principle: “While section 2 refers to individuals being able to enforce their right to a healthful environment, that section did not create any new causes of action but instead eliminated the need to show a special injury as is traditionally required in environmental nuisance cases.”28 Thus, even in instances where the statute appears to be broader than New York’s Green Amendment, courts have nevertheless been reluctant to permit a new species of private causes of action under the Green Amendment.

Rhode Island

Finally, Article 1, section 17 of the Rhode Island Constitution states as follows:

It shall be the duty of the general assembly to provide for the conservation of the air, land, water, plant, animal, mineral, and other natural resources of the state, and to adopt all means necessary and proper by law to protect the natural environment of the people of the state by providing adequate resource planning for the control and regulation of the use of the natural resources of the state and for the preservation, regeneration and restoration of the natural environment of the state.29

However, this provision is not considered a Green Amendment since the courts have limited it to fishery rights.30 Therefore, it will likely not provide useful guidance in interpreting New York’s Green Amendment.

Conclusions

Though the text of the New York Green Amendment provides more questions than answers, guidance from other states that have adopted a Green Amendment may prove useful in evaluating potential limitations that courts may apply in determining its scope. It will be up to the courts in the coming years to shape the impact of this Amendment on private citizens, state agencies, and companies alike. 

Footnotes

1) New York Environmental Rights Amendment, https://ballotpedia.org/New_York_Proposal_2,_Environmental_Rights_Amendment_(2021) (last accessed Nov. 5, 2021).

2) N.Y. Const. art. XIX.

3) See https://www.nysenate.gov/legislation/bills/2017/s5287 (last accessed Nov. 5, 2021).

4) See Feb. 8, 2021 Session Transcript (Statement of Assem. Simon).

5) See generally Jan. 12, 2021 Session Transcript.

6) Id.

7) PA. Const. art. 1, section 27.

8) Robinson Township v. Commonwealth of Pennsylvania, 632 Pa. 564, 642 (2013).

9) Pennsylvania Environmental Defense Foundation v. Commonwealth, 640 Pa. 55, 88 (2017) (emphasis added).

10) Feudale v. Aqua Pennsylvania, Inc., 122 A.3d 462, 466 (Pa. Commw. Ct. 2015); Marcellus Shale Coalition v. Dept. of Environmental Protection, 193 A.3d 447, 485 (Pa. Commw. Ct. 2018).

11) Mont. Const. art. II, section 3.

12) Mont. Const. art. IX, section 1.

13) Montana Environmental Information Center v. Department of Environmental Quality, 296 Mont. 207, 225 (1999).

14) See, e.g., Park County Environmental Council v. Montana Department of Environmental Quality, 402 Mont. 168, 193-194 (2020).

15) HI Const. art. XI, section 9.

16) In re Application of Maui Elec. Co., 141 Hawaii 249, 271 (2017).

17) Matter of Gas Company, LLC, 465 P.3d 633, 650 (2020).

18) See https://www.capitol.hawaii.gov/session2021/bills/SB502_HD1_.HTM (last accessed November 5, 2021).

19) MA. Const. art. XCVII.

20) The General Court refers to the Massachusetts state legislature.

21) Id.

22) Id.

23) Id.

24) See, e.g., Mahajan v. Dept. of Environmental Protection, 464 Mass. 604, 612 (2013).

25) IL. Const. art. IX, section 1.

26) IL. Const. art IX, section 2.

27) Glisson v. City of Marion, 720 N.Ed. 2d 1034 (1999).

28) See Helping Other Maintain Environmental Standards v. Bos, 406 Ill. App. 3d 669, 683 (2010).

29) R.I. Const. art 1, section 17.

30) See, e.g., Riley v. Rhode Island Dept. of Environmental Management, 941 A.2d 198, 208 (defining section 17 as “the ‘right of fishery’”).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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