New York Environmental Rights Amendment Takes Effect
In November 2021, New Yorkers voted to adopt a new environmental rights amendment (the “Amendment”) to the New York Constitution’s Bill of Rights. The Amendment was approved by voters in November after it had been approved in two successive legislative sessions in 2019 and 2021. The Amendment takes effect this month.
While several other states have environmental protections incorporated into their respective constitutions, New York joins only Montana and Pennsylvania to add environmental rights to their respective Bills of Rights. In a single sentence, the new Amendment in New York provides that, “Each person shall have a right to clean air and water, and a healthful environment.” N.Y. Const., Art. 1, § 19.
There is much uncertainty regarding what this Amendment affords New Yorkers. None of the Amendment’s words or phrases are defined, nor does the Amendment set out how it is to be implemented. Does the Amendment, for example, authorize a private cause of action by residents of New York against alleged polluters for infringing their rights? Does it create a private cause of action against the state or local government for failing to protect these new environmental rights? Does the Amendment expand the authority of executive agencies or local governments to regulate activities that might infringe environmental rights, or does the Amendment merely limit governmental action that would infringe on these environmental rights?
Potential answers to these questions may be found in neighboring Pennsylvania. As has been previously reported in our 2021 Forecast, courts there have been actively interpreting Pennsylvania’s version of an environmental rights amendment following the Pennsylvania Supreme Court’s 2017 decision in Pa. Envtl. Defense Found. v. Commonwealth, 161 A.3d 911 (Pa. 2017), which appeared to breathe life into an amendment that had until then been viewed as largely duplicative of state laws that protected the environment. Notably, however, although New York’s Amendment invokes similar rights of the people to “clean air and water,” New York’s version does not incorporate the “public trust” and “common property” principles that are found in the Pennsylvania amendment, which may limit reliance in New York on Pennsylvania decisions for interpretative assistance.
For now, only one thing remains clear: this new addition to the New York Constitution will be fodder for New York litigators and courts for the foreseeable future.