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Will New Yorkers have a constitutional right to clean water and air? Voters will decide this year

New Yorkers will vote in November on whether to add the “right to clean air and water and a healthful environment” to the state constitution, joining a nationwide “Green Amendment” movement.

If a simple majority says “Yes”, the constitution will be amended Jan. 1, 2022, potentially creating a new path for citizens to ask courts to compel enforcement of state environmental laws and regulations.

For example, such a constitutional right would have allowed residents of Hoosick Falls to petition a judge for a remedy for contamination of their drinking water with toxic PFAS “forever chemicals” instead of waiting two years for state agencies to act, one law professor has argued.

But major questions remain about how judges would interpret the proposed amendment — a mere 15 words backed up by a brief justification that refers to “recent water contamination and ongoing concerns about air quality.”

The language doesn’t explicitly say whether citizens are guaranteed a private right to sue without additional enabling legislation.

But Alan Knauf, an environmental attorney in Rochester, said that despite the proposed amendment’s brevity, “I predict it will be construed to allow such an action.”

In a recent article on Columbia Law School’s Climate Law Blog, Christine Weniger agreed. “The (proposed rights) will likely lead to increased citizen lawsuits on environmental questions,” Weniger wrote in September 2020.

“Whether these can be directed against private parties is not clear,” she added. But without any provision to the contrary, “it is not unreasonable to assume that enforcement can be directed against private parties, who, after all, are the largest sources of pollution.”

The scheduled November referendum results from majority votes in the state Senate and the state Assembly in both the 2019 and 2021 legislative sessions.

The Legislature’s action is part of a multi-state “Green Amendment” movement spearheaded by Pennsylvania attorney Maya K. Van Rossum.

Weniger noted that the constitutions of at least six other states — Hawaii, Illinois, Massachusetts, Montana, Pennsylvania and Rhode Island — protect environmental rights. Van Rossum says several more are on the brink of joining the group.

“It’s a growing national movement,” said Van Rossum, an advocate with the Delaware Riverkeeper Network. “It’s wonderful to see New York well on board among those in the lead.”

The New York Legislature’s action was made possible after control of the state Senate switched from Republicans to Democrats in 2018. This year Democrats unanimously favored of the amendment, as did a sprinkling of Republicans. The Assembly passed the measure 124-25. The Senate vote was 48-14. All “No” votes were Republicans.

State legislators who represent districts touching on the 11 Finger Lakes voted along party lines. The four Republican senators all voted No, while the two Democratic senators voted Yes. In the Assembly, the four Finger Lakes Republicans voted No, while the lone Democrat voted Yes.

The Business Council of New York State had lobbied against efforts to create a “self-executing” personal right sue over environmental rights “absent accompanying legislation.” The group said it would “create an unwarranted threshold level of standing for litigation,” arguing that existing legal remedies are adequate.

Environmental Advocates NY and the Adirondack Mountain Club led dozens of groups in favor the proposed amendment.

Gov. Andrew Cuomo, who’s been quiet on the issue, does not have the authority to veto the measure.

“He does, of course, have the bully pulpit,” Van Rossum said. “We would hope he would finally sit up and pay attention and speak in support of it. We have yet to hear from him.”

New Yorkers will vote on the amendment during the Nov. 2 election. Since 1995, voters have approved 76 percent of proposed constitutional amendments, E&E News has reported.

While it’s unclear how far courts would go in allowing New York’s proposed amendment to be used to compel enforcement of state environmental law, Pennsylvania’s more detailed 1971 constitutional provision led to a landmark ruling over rules for fracking natural gas wells.

Pennsylvania had enacted strongly pro-industry fracking regulations in 2012, including a medical gag rule. Doctors treating patients exposed to drilling chemicals or wellpad emissions were barred from speaking publicly about their cases.

Finger Lakes Partners (Billboard)

Van Rossum and other attorneys cited that state’s 1971 constitutional provision — which had long been treated more as a statement of policy than as an enforcement tool — in arguments that convinced the state Supreme Court to strike down the 2012 law.

That watershed environmental rights decision has fueled the Green Amendment movement nationwide. But it’s not directly applicable to New York, Weniger wrote, because Pennsylvania’s constitution explicitly names the state as trustee of its natural resources, while New York’s does not.

Nicholas A. Robinson, professor emeritus at Pace University, has argued that New York once led the nation in environmental conservation but has slipped markedly in recent years.

“New Yorkers suffer today from a deficit of environmental justice,” Robinson wrote in a 2017 article calling for a constitutional convention to deal with the problem.

A former general counsel at the state Department of Environmental Conservation, Robinson noted sharp cutbacks in DEC funding in the past decade that “effectively nullify the guarantees in New York’s Environmental Conservation Law.”

He cited contamination of drinking water in Hoosick Falls as a prime example of the regulatory breakdown.

“Since 2014, (Hoosick Falls residents) have had to drink, bathe in, and cook with water laced with toxic perfluoctanoic acid (PFOA), long before New York’s government acted to protect them.”

The Cuomo Administration eventually responded by setting limits on PFOA and PFOS that are among the strictest in the country. But those regulations are only beginning to be enforced on local water systems across the state.

“Proverbially, don’t we all live in Hoosick Falls?” Robinson mused in his 2017 article.

State environmental policy decisions have broad impact in the Finger Lakes.

While blooms of toxic algae (actually cyanobacteria) have become an increasingly common menace to the lakes, the DEC last year halted its funding for tests measuring the toxicity of blooms.

That leaves residents in waterfront homes and water treatment plants that draw from the lakes largely dependent on data supplied by non-profit groups, which have to raise money to fund their own toxicity tests.

And the DEC has gone to court to block public calls for environmental impact statements for major industrial projects such as Cargill’s immense salt mine beneath Cayuga Lake and Atlas Holding’s energy-hungry Bitcoin mining operation at its Greenidge power plant on Seneca Lake.

Van Rossum said the state’s proposed constitutional amendment could help the Finger Lakes residents, businesses and municipalities in their quest for environmental impact statements to rigorously analyze the risks of those projects.

“Certainly the Constitution (wouldn’t) say there has to be an EIS,” Van Rossum said. “But because of the Bill of Rights placement, there should be a focus on informed decision-making to avoid harm.

“Just like with the right to bear arms or the right to free speech — if there’s an action that could infringe on (personal environmental) rights, it’s incumbent on government to avoid harm….

“If one can make the argument that there is a violation, then the only way government can support it is to show a compelling state interest. And a compelling state interest is not profits for industry.”