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Green Amendment: Vital guarantee of clean water, or doorway to ‘nuisance’ lawsuits? Voters decide on November 2nd

Should the legal right to clean water and clean air be elevated to the status of the right to free speech, trial by jury and due process?

New York voters get to answer that question in a referendum Nov. 2 when they’re asked whether they favor adding the words “a right to clean water, clean air, and a healthful environment” to the state Constitution’s Bill of Rights.

Since the state Legislature has already passed the measure in two consecutive sessions, a majority ‘yes’ vote on “Proposal 2” on ballots Tuesday is the final hurdle in the constitutional amendment process. And if early polling is any guide, the measure will pass easily.

While three-quarters of the world’s national constitutions — 149 out of 193 — explicitly refer to environmental rights or responsibilities, the U.S. Constitution is in the silent minority.

But campaigns are now underway to put environmental rights clauses in 13 state constitutions.

While other states — New Mexico, Maine and Hawaii, for example — are “nipping at its heels, New York is the furthest along,” said Maya K. Van Rossum, the Pennsylvania attorney spearheading the nationwide “Green Amendment” movement. “It’s the only one that has gotten to the point of going to the people.”

One early application of the amendment, if it passes, could be the implementation of the state’s 2019 climate law, according to Michael B. Gerrard, a professor at Columbia Law School.

The Climate Leadership and Community Protection Act, or CLCPA, requires an 85 percent reduction in statewide greenhouse gas emissions by 2050 (from 1990 levels), and a Climate Action Council is preparing rules to enforce the mandate.

“If the final (enforcement) plan falls short,” Gerrard wrote in August, “some litigants may well invoke this amendment.”

Environmental blogger Christine Weniger agreed that the adopted amendment would “likely lead to increased citizen suits” on environmental questions.

“Whether these can be directed against private parties is not clear,” Weniger wrote last Fall in the Columbia Law School’s Climate Blog. “In light of the surprising brevity of the current proposal and its accompanying justification, much uncertainty over how exactly the courts will construe a new fundamental right remains.”

And that’s the problem, argue trade and lobbying groups like The Business Council and The New York Farm Bureau.

“The amendment represents the worst form of lawmaking — a proposal with no meaningful definitions or parameters, which would result in tremendous uncertainty as to how it will be applied, left to be sorted out through years of litigation,” the council wrote in a recent memo that urged a ‘no’ vote Nov. 2.

Tom Stebbins, executive director of the Lawsuit Reform Alliance of New York, was more succinct. “This will lead to an explosion of litigation,” he said.

New York’s first attempt to win legislative approval for the Green Amendment quickly died in 2017, when the state Senate was controlled by Republicans, who then and today mostly oppose the measure.

Since then, a combination of the Trump Administration’s policy of downplaying federal environmental enforcement and the New York State Senate’s switch to Democratic Party control turned the politics around.

Van Rossum, who teamed with Environmental Advocates of New York and others to win legislative approval in the 2019 and 2021 sessions, brought deep experience from Pennsylvania to the New York campaign.

Pennsylvania and Montana had been the only states to specify environmental rights in their state constitutions.

Pennsylvania adopted its sweeping amendment in 1971 in the wake of the first Earth Day. Article 1, Section 27 reads:

“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.”

But Section 27 had little practical effect for decades before Van Rossum and the Delaware Riverkeeper Network made it the linchpin of their argument against a state fracking law.

In a landmark 2013 decision, the Pennsylvania Supreme Court (that state’s highest court) reinstated property and municipal zoning rights that the fracking law had curtailed.

“In rendering its decision,” Van Rossum wrote in her book “The Green Amendment” (2017-Disruption Books), “the court vindicated the environmental rights amendment’s importance and power, promising all generations of Pennsylvanians that they would benefit from pure water, clean air and a healthy environment, and giving them the ability to defend that right in court.”

Aside from the conferring the potential to bring suit, the Green Amendment is apt to shift the way public officials address activities of government, including legislation, regulation, policy, programs, funding and permitting, Van Rossum said in a phone interview from New Mexico. “It is a firm statement to government officials that there is now a restraint … that says when a government acts, it may not do so in a way that infringes on environmental rights,” she added.

As in several other states, the New York campaign was spurred by an environmental horror story in Hoosick Falls, 30 miles northeast of Albany.

It started after Michael Hickey received shocking results from tests on samples of local drinking water he had sent to a Canadian lab in 2014. He paid for the tests because he suspected water contamination was the likely cause of his father’s death from kidney cancer after years of work at the Saint-Gobain plastics factory in town.

Blood tests later confirmed that the carcinogenic “forever chemical” PFOA had contaminated many in the community.

For several months during 2014 and 2015, Hickey appealed to the Cuomo Administration to act, but he was brushed off. Finally, a December 2015 article in The Albany Times-Union newspaper blew the lid off the story and mobilized the federal Environmental Protection Agency.

That led then-Gov. Andrew Cuomo to begin a push for tough new limits on PFOA and a related chemical in drinking water statewide. The rules were published in 2019 and enforcement began recently.

The state’s plodding response to the environmental crisis revealed an alarming regulatory slippage, according to Nicholas Robinson, professor emeritus at Pace University and a former general counsel for the state Department of Environmental Conservation.

In a 2017 article, Robinson called for a constitutional convention to address the governmental breakdown. Since then he has argued that a constitutional right to clean water would have enabled citizens like Hickey to petition the courts instead of waiting for non-responsive state regulators to act.

Similarly, citizens who have complained of toxic emissions and dust from the Dunn landfill in Rensselaer or the Norlite incinerator in Cohoes might use the constitutional right, if it is established, to press their own cases in court.

But empowering plaintiffs and their lawyers will be no help to farmers, Farm Bureau President David Fisher argued in a recent statement.

“A clean environment should be a priority for every New Yorker, but the vague Green Amendment would muddy the waters around good environmental policy,” Fisher wrote.

“This has implications for farmers who may face new legal challenges from anyone who disagrees with their farm practices, undermining strict, science-based environmental regulations already in place in New York State,” Fisher continued. “It could put right-to-farm laws in jeopardy that aim to protect family farms from nuisance lawsuits.”

But Jessica Marks of Mentz said the state permits farming practices that can impose serious hardships on farmers’ neighbors.

“Family farms are not the problem,” Marks said. “It’s the CAFOs (concentrated animal feeding operations), the factory farms, that are coming and putting in giant pits.”

Marks said she has lived in her home about 12 years and has nearly paid off the mortgage. About two years ago, a large pit was excavated on nearby property owned by a factory farmer. She said the pit, which is authorized to accept both food waste and farm manure, is leased to a local food digester.

Marks said trucks marked as septic waste haulers also regularly stop to unload, raising the prospect that human waste is part of the mix. Foul odors from the site forced her to shut down her pool early this summer. Her first-ever rat infestation is the the latest nuisance.

“I would say it (the green amendment) would be a good thing to pass if would give people like me a fighting chance,” Marks said.