Avoiding Mistakes in Implementing New York’s Green Amendment

In November 2021, New Yorkers voted overwhelmingly to amend Article I of the State Constitution—the Bill of Rights.1 The newly added Article I, § 19 is very short—just one sentence. In its entirety, the amendment reads: “Each person shall have a right to clean air and water, and a healthful environment.”2 This language, commonly called “the Green Amendment,” is both sweeping and simple. It guarantees all New Yorkers the constitutional right to live, work, and play in communities that are safe, healthy, and free from harmful environmental conditions. Assemblymember Steve Englebright, the amendment’s primary sponsor, described these basic environmental rights as “an elementary part of living in this great state.”3 Bold words indeed, reflecting the amendment’s potential to generate sweeping legal change that delivers environmental justice to long-suffering, disadvantaged communities.4 In adding this provision to the state constitution, New York joins a broader social consensus on environmental rights across the United States5 and around the world.6 Indeed, soon after New York amended its constitution, the United Nations General Assembly recognized the right to a clean, healthy and sustainable environment as a universal human right.7

Now that the New York Constitution has been amended, certain legal questions emerge immediately. Most pressingly, New Yorkers need to know whether Article I, § 19 is self-executing (meaning that it gives rise to a constitutional cause of action on its own) or whether it requires implementing legislation. A second pressing question is what this constitutional amendment means for how the Department of Environmental Conservation (DEC), as well as other state agencies and local government authorities, should incorporate constitutional environmental protections as they exercise their authority to implement the state’s suite of existing environmental laws and regulations.8

Although there are other states with environmental provisions in their constitutions,9 only the Pennsylvania and Montana, and now New York, constitutions contain “Green Amendments”—constitutional provisions that put environmental rights on par with other fundamental social and political rights like freedom of speech, freedom of religion, and property rights.10 Thus, as New York begins the process of fleshing out the contours of its own Green Amendment, it makes sense to look for lessons and models in Pennsylvania and Montana.

Indeed, the language is strikingly similar in all three state constitutions. Where the New York Constitution affirms that everyone has “a right to clean air and water, and a healthful environment,”11 Montana recognizes “the right to a clean and healthful environment” as an inalienable right.12 Pennsylvania’s constitutional right is arguably broader because it includes “scenic, historic, and esthetic values” but it begins with the same unadorned statement that “[t]he people have a right to clean air, pure water, and to the preservation” of the environment.13 This Pennsylvania provision, like New York’s Article I, § 19, is contained in the state’s Bill of Rights.14

The analogy is not perfect. There are significant differences between New York’s new constitutional environmental provision and the Pennsylvania and Montana constitutional provisions, both of which were adopted more than 50 years ago as part of the first wave of environmental legal protections following the first Earth Day.15 Most notably, both Pennsylvania16 and Montana17 included public trust provisions in their constitutional environmental provisions. New York’s Green Amendment does not, though the Adirondacks Forever Wild provision arguably serves some of the same functions, albeit in a more limited capacity.18 Despite this difference, there is much to learn from how Pennsylvania and Montana have interpreted their Green Amendments.

1. Is New York Constitution’s Article I, § 19
Self-Executing?

Constitutional provisions are said to be self-executing if they go into effect immediately after being created, without the need for implementing legislation.19 By contrast, a non-self-executing provision would require legislative implementation before it could be enforced by a court. Because the Green Amendment is found in the Bill of Rights in the New York Constitution, answering the self-executing question should be relatively easy.

Pennsylvania’s history with its Green Amendment seems quite helpful in showing why New York’s Green Amendment is self-executing. Like Article I, § 19, the Pennsylvania Constitution contains a clear statement recognizing environmental rights as fundamental rights.

Given the similarities among these provisions, and their common location in the Bill of Rights, looking to Pennsylvania makes sense. In particular, looking to the tortuous history of Pennsylvania’s Green Amendment can help New York avoid the errors of judicial interpretation that stymied full implementation of Pennsylvania’s Green Amendment for its first few decades.

An early case interpreting Pennsylvania’s Article I, § 27 clouded the issue of whether the Green Amendment was self-executing. In Commonwealth v. National Gettysburg Battlefield Tower, Inc.,20 decided soon after the Green Amendment’s ratification, Pennsylvania sued under the Green Amendment to enjoin construction of an observation tower on private land overlooking Gettysburg Battlefield National Park. The trial court ruled that the amendment was self-executing, but declined to grant injunction.21 Both rulings were upheld on appeal.22 At the Pennsylvania Supreme Court, there was a majority for refusing the injunction, but no agreement on whether the Green Amendment was self-executing.23 Three justices would have denied the injunction on the ground that the amendment was not self-executing.24 Two other justices concurred that the injunction should be denied, but explicitly stated that they did not join the plurality’s reason for denying the injunction.25 Two other justices dissented on the ground that the Green Amendment was self-executing.26 There was thus no majority on the question of whether the environmental rights amendment was self-executing.27 While this should have left intact the lower court decision that the amendment was self-executing,28 it instead laid the groundwork for the erroneous conclusion that the Green Amendment was not self-executing.29 One scholar of Pennsylvania constitutional law mused that perhaps the case “led lawyers and judges to view section 27 as entirely a grant of governmental authority, and not as a limitation on that authority.”30 It took another 40 years, until Pennsylvania Environmental Defense Foundation v. Commonwealth, for the Pennsylvania court to unambiguously clarify that Article I, § 27 was self-executing.31

Given the looming climate crisis, we do not have 40 years to play with. New York should learn from Pennsylvania’s errors and clarify immediately that the Green Amendment is self-executing. Corporate defendants are resistant to this idea and have suggested that environmental rights are not self-executing.32 It will be up to New York courts to reject this erroneous interpretation and affirm that the right is in fact self-executing.33 This seems to be happening. In Fresh Air for the East Side, the first case raising a claim under New York’s Green Amendment, the court rejected the invitation from regulated industry to find that § 19 was not self-executing.34 Instead the court noted that in New York constitutional provisions are presumptively self-executing, and specifically found § 19 to be self-executing.35

This ruling, which is in line with how New York courts treat other rights enshrined in Article I, seems likely to stand on appeal.36 Environmental rights thus join other constitutionally protected fundamental rights that are by design self-executing and must be upheld and protected by the government.37 This means that the right to clean air, water, and a healthy environment is guaranteed to everyone in New York, and the Green Amendment will apply in any case when the state, its agencies, or local governments do not respect these rights.

2. How Does the Green Amendment Affect Interpretation of Existing Law and Regulation in New York?

The question of how to interpret the intersection of New York’s Green Amendment and pre-existing environmental laws can similarly benefit from the lessons learned in Pennsylvania and Montana. In answering this question, New York should be guided by the principle that “neither the legislature nor an executive agency can define a constitutional right. The constitutional right exists independent of the implementing legislation of regulation, not the other way around.”38

An early case brought under Pennsylvania’s Green Amendment, Payne v. Kassab (1973),39 offers a cautionary lesson. In Payne, the Pennsylvania Commonwealth Court expressed concerns that interpreting Article I, § 27 to allow the public to broadly challenge agency environmental decision-making would open a floodgate of litigation. The court therefore articulated a three-part test for how courts should review agency decisions challenged under the Green Amendment. The Payne test had three components:

(1) Was there compliance with all applicable statutes and regulations relevant to the protection of the Commonwealth’s public natural resources?

(2) Does the record demonstrate a reasonable effort to reduce the environmental incursion to a minimum?

(3) Does the environmental harm which will result from the challenged decision or action so clearly outweigh the benefits to be derived therefrom that to proceed further would be an abuse of discretion?40

This test set an extremely low bar for constitutionality, anchoring the constitutional analysis in compliance with existing law. Under the Payne test, merely complying with existing law and regulation was enough to ensure that virtually every environmental decision would pass constitutional muster.41

It was not until the 2013 plurality decision in Robinson Township v. Commonwealth that the Pennsylvania Supreme Court revised this analysis, recognizing that the Green Amendment imposed a duty on both the Legislature and executive to refrain from actions that unduly infringed upon environmental rights protected in Article I, § 27.42 Four years later, in Pennsylvania Environmental Defense Foundation v. Commonwealth,43 the Pennsylvania Supreme Court explicitly rejected the Payne test, finding that “it strips the constitutional provision of its meaning.”44

In Pennsylvania Environmental Defense Foundation, the Pennsylvania Supreme Court made it clear that compliance with existing law did not answer the question of constitutionality under the Green Amendment. Rather, the court specifically stated that the constitutional right “places a limitation on the state’s power to act contrary to this right, and . . . any laws that unreasonably impair the right are unconstitutional.”45 Thus the constitutional right exists independent of the implementing legislation or regulation.46 In other words, the court rejected the proposition that because “an environmental law was created by the legislature, then by extension the law met the constitutional standard.”47

Montana grappled with similar questions about the effect of its Green Amendment on existing law. Like Pennsylvania, the state spent decades digging itself out from some early legal decisions that greatly weakened their Green Amendment. In 1976, the Montana Supreme Court decided Montana Wilderness Association v. Board of Health & Environmental Sciences, in which the court seemed to hold that compliance with pre-existing law was enough to satisfy the requirements of the Green Amendment.48 The dissenting opinion rightly objected that this decision took the teeth out of the Green Amendment, bemoaning that under the majority reasoning “the inalienable right of all persons to a clean and healthful environment guaranteed by Montana’s Constitution confers a right without a remedy. . .”49

Similarly, in 1979, in Kadillak v. Anaconda Co., the court assessed the relationship between constitutional environmental rights and the Montana Environmental Policy Act (MEPA), which had been enacted the year before the constitutional amendment.50 In this case, Butte residents sought to force the state to conduct an Environmental Impact Statement (EIS) before issuing a permit for disposal of mining waste.51 In rejecting the claim that an EIS was constitutionally required, the Montana Supreme Court relied wholly on case law that pre-dated the Green Amendment. Asserting that “there is no evidence that MEPA was enacted to implement the new constitutional guarantee of a ‘clean and healthful environment,’”52 the court therefore refused to re-interpret the state’s obligations under MEPA in light of the Green Amendment.

In the wake of Kadillak and Montana Wilderness Association, little happened under Montana’s eviscerated Green Amendment for the next two decades. In 1999, however, the Montana Supreme Court breathed new life into the Green Amendment in a case called Montana Environmental Information Center v. Department of Environmental Quality.53 This case involved a challenge to Montana’s Department of Environmental Quality (DEQ) policy of allowing mine waste discharge into streams and rivers with no environmental review.54 The petitioners argued the Montana Constitution’s Article II, § 3 guarantee of a “fundamental right to a clean and healthful environment” required that such decisions be subject to strict scrutiny, and that this constitutional guarantee, read in conjunction with the state duty to maintain the environment contained in Article IX, § 1, allowed Montana to act prospectively to prevent pollution before it occurred.55 The Supreme Court agreed, concluding that these two parts of Montana’s Constitution “were intended by the constitution’s framers to be interrelated and interdependent and that state or private action which implicates either, must be scrutinized consistently” using strict scrutiny.56 The court further determined that the “intention was to provide language and protections which are both anticipatory and preventative.”57

Recently, the Montana Supreme Court further underscored the state’s obligation to protect the environment under the Green Amendment. In Park County Environmental Council v. Montana Department of Environmental Quality,58 the court ruled that state environmental permitting processes failed to fulfill Montana’s constitutional right to a “clean and healthful environment” because they did not include anticipatory and preventative mechanisms in their legal frameworks.59 The court invalidated a 2011 amendment to the Montana Environmental Policy Act that purported to bar courts from issuing injunctions or otherwise suspending permits found to have been issued in violation of environmental laws.60 The unanimous court found that this legislative provision violated the state’s constitutional obligation to provide environmental review and protection before approving activities with the potential to degrade Montana’s environment.61 This decision made it clear that Montana’s constitutional mandate includes a duty to prevent environmental harms.

Perhaps the most interesting case under the Montana constitution is Held v. Montana, a case brought by Our Children’s Trust on behalf of a group of 16 young people.62 This case alleges that Montana’s fossil fuel energy system is violating their right under the Montana constitution to a stable climate as part of a clean and healthful environment.63 Aside from alleging that the specific environmental harms associated with climate change violate their constitutional rights, these plaintiffs also argue that the provision in the Montana Environmental Policy Act that prevents environmental review from considering “actual or potential impacts that are regional, national, or global in nature”64 (the so-called Climate Change Exception) violates Articles II and IX of Montana’s Constitution.

This lawsuit not only invokes the constitutional right to clean and healthful environment, but also relies on language in the Montana Constitution explicitly recognizing the rights of future generations. In August 2021, a Montana district court ruled that the youth plaintiffs had standing under the state constitution.65 The case is currently scheduled for trial beginning in June of 2023.66 There is no direct climate corollary in New York; indeed the Climate Leadership and Community Protection Act requires that every state agency, including DEC, assess whether their actions to issue permits are consistent with the state’s goal of reducing greenhouse gas emissions.67 However, this case may be instructive for how New York should reconsider categories of decisions that are currently categorically exempted from environmental review, particularly land use decisions.

3. Lessons to Learn

New York can learn from both the Pennsylvania and Montana examples and avoid their mistakes by recognizing that the Green Amendment disrupts the status quo and requires more stringent environmental decision-making under the National Environmental Policy Act (NEPA) and the New York State Environmental Quality Review Act (SEQRA).68 And, so far, New York courts seem to be doing just that. In the first case brought under New York’s Green Amendment, a Monroe County court faced and rejected claims that the constitutional right enshrined in Article I, § 19 was coterminous with existing law.

In Fresh Air for the Eastside, defendants claimed “that compliance with a permit issued by the Department of Environmental Conservation constitutes compliance with the constitutional environmental right.”69 In refusing to dismiss the claim, the court noted that “[c]omplying with the constitution is not optional for a state agency.”70 Indeed, the Constitution is the blueprint for governance in the state,71 and the executive branch of government has a constitutional obligation to ensure that the “laws are faithfully executed.”72 A new constitutional amendment has vastly different consequences for this duty than those that would flow from the more ordinary enactment of new legislation.73 As such, the court ruled that environmental plaintiffs had properly stated a cause of action against the state of New York under the Green Amendment vis-à-vis the state’s failure to adequately regulate a landfill alleged to be creating a nuisance.74

While some have raised concerns that the Green Amendment could be used to upend the state’s environmental decision-making entirely,75 the second New York court to entertain a claim under New York’s Green Amendment set some of those concerns to rest.76 Despite an invitation from plaintiffs to use the new constitutional provision to rewrite review of agency decision-making, the Renew 81 for All v. New York court used an ordinary “hard look” analysis to assess the adequacy of the Department of Transportation’s EIS for a proposed bypass reconstruction near Syracuse.77 The court denied the constitutional claim without further comment.78

Indeed, it seems most likely that the Green Amendment’s impact will be felt most in the context of assessing cumulative impacts, ensuring environmental justice, and regulating emerging contaminants. However, the amendment will also have a role in ratcheting up pollution standards overall and will likely give new impetus to nuisance-based claims of environmental harms. DEC will need to reconsider how to implement its existing mandates under New York’s Environmental Conservation Law79 in light of its obligation to comply with the Green Amendment. Where SEQRA balances environmental considerations with economic factors, there is now a constitutional imperative for ensuring a healthful environment. Indeed, the Fresh Air for the Environment court particularly noted that all state agencies and local governments “are obliged to respect [the Green Amendment] and to interpret their duties in a way that ensures a person’s environmental rights will be respected. . . . The fundamental right serves as a guide to agencies in interpreting their duties.”80

Practically, this means that as DEC, or any agency, implements its obligation to “consider the significant adverse environmental impacts of any discretionary actions [and] mitigate such impacts to the maximum extent practicable,”81 the balance of what kinds of impacts are deemed “adverse” and “significant” may change, as well as what kinds of mitigation are considered “practicable.” While this new balance is unlikely to result in “environmental protection at all costs,” 82 implementing the Green Amendment will require significant changes to business as usual. One area likely to see immediate change is the range of projects that are currently treated as exempt from environmental review under SEQRA. The Green Amendment now provides an independent mandate for assessing and mitigating environmental impacts, regardless of statutory or regulatory exemption.

There are currently two cases asking courts to assess precisely this question. The first, brought on behalf of residents in New York City’s Chinatown and the Lower East Side, challenges the Two Bridges Large Scale Residential Development on the ground that the SEQRA EIS process did not adequately protect residents’ constitutional environmental rights.83 Because the EIS was concluded before enactment of the Green Amendment, this case may be an important test of the amendment’s reach. In the second case, community members are suing the State of New York and Norlite LLC alleging that regulators have allowed the company to operate a hazardous waste incinerator in a manner that, inter alia, violates their constitutional rights to clean air and a healthful environment.84 This case may be an important test case for how much additional heft the Green Amendment gives to environmental justice communities complaining of lax state enforcement that puts their health and welfare in jeopardy.

Conclusion

The next few years will see New York defining the contours of its Green Amendment. There will undoubtedly be many other cases brought, and the courts’ decisions will flesh out who can bring actions, how their claims will be analyzed, how these rights will be enforced, and what sort of penalties may be used. In the interim, state agencies and local governments have an independent duty to reconsider their existing practices in light of the environmental rights that the amendment guarantees to each person. They should embrace this responsibility, rather than seek to avoid it.

Ensuring each person’s constitutional right to clean air, clean water, and a healthful environment will require changes in governmental operations. Learning from early mistakes in Pennsylvania and Montana can help New York get a jump start on successful implementation. Together with the new Cumulative Impacts law, and the CLCPA’s focus on disadvantaged communities, the Green Amendment requires proactive consideration of how to build positive environmental change.

Jaclyn Spencer is a 2L at the CUNY School of Law. As a long-time NYC resident and former public school teacher in the city, she is committed to helping ensure that all New Yorkers enjoy clean air and water, and a healthful environment.

Rebecca Bratspies is Professor of Law, CUNY School of Law, and director, Center for Urban Environmental Reform.

Endnotes

1 Rebecca Bratspies, This Changes Everything: New York’s Environmental Amendment, 33 Envt’l L. in N.Y 95 (Jun. 2022).

2 NY const. art. I, § 19. The Elisabeth Haub School of Law at Pace University has compiled a useful internet repository of resources pertaining to the Green Amendment, including pleadings and other legal documents for cases asserting rights under Art. I, § 19. See New York’s Environmental Rights Repository, https://nygreen.pace.edu.

3 Assemblymember Steve Engelbright on the Passage of a NYS Green Amendment (Apr. 30, 2019), https://nyassembly.gov/mem/Steve-Englebright/video/13189/#videos.

4 Before being added to the ballot, the proposed amendment first had to twice pass both houses of the state Legislature—something it also did by with overwhelming margins. This amendment clearly and unambiguously reflects the political will of the people of New York. New York Proposal 2: Environmental Rights Amendment (2021) Ballotpedia, https://ballotpedia.org/New_York_Proposal_2,_Environmental_Rights_Amendment_(2021).

5 Since New York’s historic vote to adopt Section 19, the New Mexico Legislature has taken up a similar environmental constitutional proposal. Scott Wyland, Lawmakers Consider Green Amendment to New Mexico Constitution, Santa Fe New Mexican (Jan. 16, 2022). Multiple other states are also considering Green Amendments. Maya van Rossum, How Green Amendments Protect Key Environmental Rights, Law360 (Nov. 23, 2021); Breaking Down State Green Amendments, NCEL Blog (Nov. 6, 2020). For more information on green amendments, see generally, Maya K. van Rossum, The Green Amendment: Securing Our Right to a Healthy Environment (2017). Moreover, surveys show that the American people overwhelmingly support the proposition that everyone has the right to breathe clean air. Rebecca Bratspies, Struggling to Breathe: Asthma, Pollution, and the Fight of Environmental Justice Data For Progress (2020).

6 Access to a Healthy Environment Declared a Human Right by U.N. Rights Council, U.N. News 0028Oct. 8, 2021) (describing the U.N. Human Rights Council vote on resolution 48/13 which recognized to a clean, healthy, and sustainable environment.).

7 G.A. Res. 76/300 (Jul. 28, 2022). This resolution built on the October 2021 Human Rights Council Human declaration recognizing “the right to a clean, healthy, and sustainable environment as a human right that is essential for the full enjoyment of all human rights.” Human Rights Council Res 48/13, U.N. Doc. A/HRC/Res/48/13 (Oct. 8, 2021).

8 The New York Environmental Conservation Law charges the New York State Department of Environmental Conservation with the obligation and duty to “conserve, improve, and protect” the state’s natural resources and environment, and to “prevent, abate, and control” pollution. ECL 1-0101, 3-0101;

9 See e.g., Haw. Const. art. XI, § 1; Mass. Const. art. 97; Ill. Const. art. XI, §§ ١, ٢.

10 See generally, Maya von Rossum, The Green Amendment: The People’s Fight For a Clean, Safe, and Healthy Environment (2022); Genevieve Bombard et al., The Precedents and Potential of State Green Amendments, Rockefeller Institute Of Government (July 2021) at 5, https://rockinst.org/wp-content/uploads/2021/07/CLPS-green-amendments-report.pdf.