What To Know About The Proposed Green Amendment In NY

By Marco Poggio | October 31, 2021, 8:02 PM EDT ·

When New Yorkers head to the polls Tuesday, they will have a chance to get their say on several proposed amendments to the state constitution addressing topics such as the redistricting process, voter registration, absentee ballots and increasing the New York City Civil Court's jurisdiction.

Another potentially consequential proposal would add "a right to clean air and water, and a healthful environment" to Article I of the New York Constitution, which contains the state's bill of rights.

If approved, the amendment would provide New Yorkers with an additional legal tool to protect their communities and their health from pollutants and help correct the state's course on environmental issues that have traditionally been worse in low-income communities and communities of color, experts say.

"The ways that our environmental laws have historically been drafted and implemented has meant that the overall interest of the public has consistently been interpreted and applied to expose poor communities of color to far higher levels of environmental contamination than others," Katrina Fischer Kuh, a professor of environmental law at Pace Law School, told Law360. "One value of recognizing an individual's right, I think, is to correct for that."

Alongside fundamental rights such as those to free speech, due process, religion and voting, the New York Constitution's Bill of Rights protects the people's right to play bingo and place bets on horse races. But it says nothing about the right to clean water and clean air.

"When we elevate this to the level of the constitution, it's a value statement," said Kate Kurera, an attorney and deputy director of Environmental Advocates NY, which advocates for the amendment. "Breathing clean air and drinking clean water are so fundamental to living healthy, sustainable, and prosperous lives as New Yorkers — the fact that it is not there seems to be a brazen omission."

The amendment would help enforce existing laws and test new ones. It could also be invoked by residents and environmental groups in the state pushing to fill gaps in environmental laws.

So far, only Pennsylvania and Montana have amended their constitutions, in 1971 and 1972, respectively, to emphasize environmental rights as basic civil liberties.

Other states — Hawaii, Illinois, Massachusetts and Rhode Island — have added language addressing environmental protection and pollution control, or recognizing environmental rights for their residents, but did not place them among their fundamental rights.

Eleven states, including New York, have introduced bills proposing so-called green amendments to their constitutions in recent years, and five more have expressed interest in doing so, according to the Nelson A. Rockefeller Institute of Government at the State University of New York, which is tracking state efforts.

Where States Stand On Green Amendments

Pennsylvania and Montana are the only two states to have included rights to a clean and healthy environment among the fundamental rights in their state constitutions. More states are now considering doing the same.

  • Adopted

  • Introduced

  • Expresssed interest
Source: Rockefeller Institute of Government
(as of October 2021)

According to a poll conducted by Siena College Research Institute in June, 80% of New Yorkers support the green amendment. The appeal is strongly bipartisan: 85% of Democratic, 64% of Republican, and 81% of independent registered voters said they supported the amendment. Support is also strong across races, but peaks at 86% with Latino voters.

In New York, there are two ways to modify the state constitution. One is that voters can periodically vote to hold a constitutional convention. In that case, the entire constitution is up for debate and subject to potential amendments.

The other mechanism, the one at play this year, requires two separate sessions of the Legislature to adopt a proposed constitutional amendment, which voters can then approve or reject on Election Day.

In 2017, as New York voters were called to decide whether to convene a constitutional convention, Kuh led a New York State Bar Association task force considering the environmental aspects of the state constitution.

What became clear from that analysis, Kuh said, was that New Yorkers were wary that a constitutional convention could jeopardize "forever wild" provisions in the state constitution, added in 1894, which prohibit development in the Adirondacks, a mountainous region stretching across the northeastern portion of the state that is also the source of the Hudson River, and the Catskills, from where New York City draws almost all of its drinking water.

The task force concluded it was best to add an environmental rights clause to the constitution using the legislative process, as other states had done in the past.

New Yorkers ultimately rejected the convening of a constitutional convention at the polls.

Green Amendments In State Constitutions

Pennsylvania and Montana have environmental rights included in their bills of rights, but the language differs.


Year: 1971

Where: Article I, Section 27

Text: 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.


Year: 1972

Where: Article II, Section 3

Text: Inalienable Rights. All persons are born free and have certain inalienable rights. They include the right to a clean and healthful environment and the rights of pursuing life's basic necessities, enjoying and defending their lives and liberties, acquiring, possessing and protecting property, and seeking their safety, health and happiness in all lawful ways. In enjoying these rights, all persons recognize corresponding responsibilities.

In April 2019, however, the Legislature passed green amendment legislation to add a right to clean air, clean water and a healthful environment to the state's Bill of Rights. The support was overwhelming: 45 to 17 votes in the Senate and 110 to 34 in the Assembly.

The amendment passed with an even larger margin in February this year. The Senate approved it with a 48 to 14 vote, and the Assembly passed it with a 124 to 25 vote. It is now up to New Yorkers to accept or reject the amendment, which shows up as Ballot Proposal 2.

The amendment proposal comes as the Biden administration is pushing a plan that would make environmental justice a priority.

Federal efforts include partnering with state environmental protection agencies and local communities. In September, the U.S. Environmental Protection Agency signed a five-year memorandum of understanding with the California Environmental Protection Agency to expand joint activities aimed at increasing environmental compliance and improving public health in communities that have historically borne the brunt of pollution. The memorandum was the first of its kind and is meant to inspire partnerships between federal and state governments across the country, the EPA said in a statement.

The EPA has also expanded partnerships with local governments. It has started a joint initiative with 40 municipalities along Mississippi River cities to address pollution caused by plastic waste.

Under the commerce clause in the U.S. Constitution, the federal government has the power to pass laws and regulations to restrict air and water pollution. With the power it is granted by Congress, the EPA sets federal thresholds for restrictions on pollutants. However, states can decide to pass stricter ones.

Overall, states largely draw their own paths on environmental policy.

New York has some of the most ambitious climate legislation in the country and the world, and has historically been a leader on environmental issues, experts say. In addition to the forever wild provisions in Article XIV of its constitution, the state was the first in the nation to codify laws for the preservation of the environment, in 1911.

In 1975, legislators passed the State Environmental Quality Review Act, which requires state and local government agencies to consider environmental impact equally with social and economic factors when engaging in decision-making.

New York has its own endangered species law, strong protection of flora and fauna, and has effectively set nearly 50% of its lands as protected areas.

More recently, New York has adopted some of the most stringent caps for toxic contaminants such as perfluorooctanoic acid and perfluorooctane sulfonic acid, both of which have been used in producing fire-fighting foams, and 1-4 dioxane, a solvent.

In addition, New York City has put in place an innovative quality control system to safeguard its massive drinking water supply — it delivers 1.2 billion gallons of drinking water to half of the state's population every day — which is considered among the best in the nation.

"New York state has a long tradition of leadership on the environment," said Nicholas A. Robinson, a legal scholar who has developed environmental law since 1969 and has served as a general counsel of the New York State Department of Environmental Conservation. He also teaches environmental law at Pace Law School.

The push for a green amendment in New York is in part motivated by the defunding of the state's Department of Environmental Conservation during the Cuomo administration that weakened the enforcement of state laws, Robinson said.

Despite strong protections for the environment, existing state laws have failed to prevent environmental issues such as air pollution, chemical contamination and poor drinking water quality from harming people, Kurera said.

Health hazards are particularly high in areas of the state where minorities live in larger numbers. People living near transportation corridors in the South Bronx, Queens and Brooklyn are much more likely to suffer from asthma than people living in greener areas of the state. Interstate highways cross low-income communities in Syracuse and Buffalo, exposing its residents to higher concentrations of air pollutants than those in more affluent areas.

Data on COVID-19 deaths showed higher mortality rates in communities with poorer air quality across the country. In New York, that means urban areas closer to highways.

Kurera, whose organization provides assistance to disadvantaged communities impacted by environmental issues, said the constitutional amendment would give additional protections to New Yorkers harmed by pollution.

"It will give the people of New York a tool to fill the gap when harm is being created, which is important, because harm still happens, regardless of all the other regulatory environmental tools that are out there," Kurera said.

Hoosick Falls, a village in upstate New York, has been the site of a water contamination crisis that involved perfluorooctanoic acid, or PFOA, a toxic chemical used to manufacture Teflon that has been linked to cancer and damages to the environment.

Over the course of two decades, the contamination, which was caused by a local circuit board laminates and fiberglass manufacturing plant, resulted in numerous cases of illness. A class action brought by hundreds of residents resulted in a $65 million settlement approved by a federal judge in July.

The outrage sparked by the water crisis in Hoosick Falls inspired state legislation passed last year banning the use of PFAS in food packaging. Known as "forever chemicals" because of how long they remain in the human body and the environment, PFAS are the broader class of chemicals to which PFOA belongs.

The push to add environmental rights language to the state constitution also came on the wave of advocacy following that incident, Kurera said.

Critics of the amendment say it would open the door to intense litigation. Kurera said those concerns are overblown. Montana and Pennsylvania, which added environmental rights language to their constitutions years ago, did not experience a surge of legal actions concerning the environment as a result.

"Constitutional challenges are not cheap," Kurera said.

If voters approve the amendment, it would take years for case law to develop around it. Courts will have to decide how to interpret and apply the amendment's language, which is purposefully broad. It's unlikely that lawyers working on environment-related litigation would base litigation solely on the amendment. Rather, they would add constitutional claims to other claims brought under state law.

Kuh said she expected that the environmental rights in the amendment will be interpreted to be self-executing, meaning that individuals could state a claim under it. However, it is likely that those rights won't be deemed enforceable against private parties, she said.

"People could obtain injunctive relief to prevent the government from violating their environmental rights, but it seems unlikely that they could obtain monetary damages," Kuh said.

Aside from providing fuel to litigation arising from harm, a constitutional right to a healthy environment will be most beneficial in informing the process of legislation, regulation and permit issuance in the state. Laws will have to pass the constitutional test, Kurera said.

"That's the most exciting thing about this," she said. "Having these rights is about being preventative, taking actions before harm occurs."

--Editing by Marygrace Murphy. Graphics by Ben Jay.

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