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A Dangerously Seductive Idea

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A Dangerously Seductive Idea

New York’s proposed Green Amendment could usher in “vigilante regulation through litigation.” October 19, 2021
New York
Politics and law
Infrastructure and energy

On November 2, New Yorkers will vote on five proposed changes to the state constitution. One of these, Proposition 2, would amend the constitution to include these seemingly innocuous words: “Each person shall have a right to clean air and water, and a healthful environment.”

Most voters will hear about the proposed amendment for the first time in the polling booth. Though the measure has been working its way through the legislature for several years, the so-called Green Amendment has received surprisingly little publicity or public pushback—and that’s a problem.

On its face, the proposal seems straightforward and appealing. Who could be against clean air and water? With backing from a host of environmental organizations, including the Nature Conservancy and the Natural Resources Defense Council, as well as putative good-government groups such as the League of Women Voters, the amendment is expected to pass decisively. But beneath its innocent veneer, the amendment could upend environmental law in the state.

“It’s a real wolf in sheep’s clothing,” Tom Stebbins, executive director of the Lawsuit Reform Alliance of New York (LRANY) told me. As written, the amendment appears to give individuals and activist groups undefined—potentially unlimited—rights to sue both the state government and private parties over perceived environmental wrongs. In other words, Stebbins says, the measure takes environmental enforcement “out of the hands of accountable elected officials and puts it in the hands of private attorneys. That’s not the way to govern.” Philip K. Howard, a longtime advocate of nonpartisan legal and regulatory reform, told me he believes the provision “will open a Pandora’s box of litigation.”

New York’s Green Amendment is the product of a long-term progressive project. For decades, activists have worked to redefine laudable goals—such as providing health care or housing—as “rights” on a par with those enumerated in the Constitution. (“The right to clean water, air and a healthful environment should be as fundamental as a person’s right to free speech and assembly,” one group maintains.) That effort has dovetailed with the rise of the “environmental justice” movement, which reframes environmental problems as examples of racial or class discrimination. A letter to state legislators in support of the measure signed by some 70 advocacy groups states that the “Green Amendment is a powerful and important tool for combating environmental racism.” According to the New York League of Conservation Voters, which backs the proposal, the amendment would mandate “that all people must have the same degree of protection from environmental health hazards.”

A handful of other states, including Pennsylvania, Montana, and Massachusetts, spell out a version of “environmental rights” in their constitutions. In 2013, activists in Pennsylvania relied on that state’s environmental rights amendment in a lawsuit to block a law reducing restrictions on fracking. The state’s supreme court ultimately struck down the fracking law, ruling that the amendment is “first and foremost a limitation on government authority.”

To date, few environmental-rights amendments have led to extensive litigation, but legal experts note that such amendments in Pennsylvania and other states are more narrowly focused than the one proposed for New York. An analysis published by the Nixon Peabody law firm observes that amendments in other states include specific details regarding enforcement and definitions. In contrast, “New York’s proposed amendment uses the most general wording feasible, giving great flexibility to the courts in New York to interpret and apply.”

The National Law Review calls the proposed amendment “simple, yet vague.” The amendment doesn’t define terms, such as “clean” and “healthful.” Nor does it spell out enforcement mechanisms, penalties for violations, or roles for existing state agencies. That vagueness wasn’t an oversight on the part of the measure’s authors. Green Amendment supporters know that the simple language will sound benign and appealing to voters, while the amendment’s lack of specificity will ensure maximum latitude for legal activists and law firms seeking to challenge both state regulations and private industry.

New York’s legislature is notoriously cozy with the state’s personal-injury trial bar, Stebbins says. So it isn’t a shock that the Green Amendment’s broad language will open up a lucrative new arena for litigation. The National Law Review notes that the text describing this “right to clean air and water, and a healthful environment” is an “outlier in terms of its brevity” compared with similar measures in other jurisdictions: “Unlike other states, the New York proposal—on purpose—does not rely on the New York legislature or state agencies to define or limit the right.”

The amendment’s seemingly limitless scope raises many questions. In particular, to what extent does it give private citizens standing to bring lawsuits against the government or against businesses and other parties? In legal terminology, that’s known as a direct right of action. It’s a feature of the Americans with Disabilities Act (ADA) and other laws. In theory, such provisions empower private citizens to help improve enforcement of a worthwhile law by spotting infractions and filing suits against lawbreakers. In practice, these rules (which often include financial rewards for plaintiffs) can turn into abusive free-for-alls. Some ADA plaintiffs file hundreds of suits a year. Legal experts say that the Green Amendment could give environmental plaintiffs similarly broad rights. “The proposal does not address enforcement,” the National Law Review observes, “but it is certain that private parties will attempt to use this new constitutional provision as a basis for a direct right of action to enforce state environmental laws against other private parties in state court.”

In apparently establishing a direct right of action against any party, New York’s Green Amendment is radically more expansive than similar amendments in other states. The Pennsylvania amendment, for example, specifies “the Commonwealth” as the “trustee of these resources.” Pennsylvania courts have ruled that while the amendment obligates the state to protect natural resources, it does not give citizens the right to file civil suits against private businesses or other parties. By opening the door to such civil suits—and by failing to define its terms—New York’s Green Amendment threatens to create a toxic legal climate. “Just think of all the claims demanding a ‘healthful environment,’” Howard says. “It would start an arms race among environmental groups and social justice groups for who can concoct the most dramatic theories.”

Without guidance from the state legislature, the National Law Journal says, it will be up to the courts to decide “how to operationalize this new fundamental right in the real world.” That could mean years of legal chaos as New York courts work out the rules of the road on a case-by-case basis—and as the inevitable appeals work their way (slowly) through higher courts. Over time, the courts might choose to place reasonable guardrails around how citizens can exercise their new environmental rights. Or they could lock in a maximalist interpretation of the amendment’s language. Either way, sorting this out might take decades.

This uncertain legal climate could be devastating for private industry in New York State. Businesses can cope with clear and consistently enforced regulations, but it’s hard to plan or raise capital in a capricious regulatory environment. Would a New York business be held liable for emissions levels that are currently legal under state law? Will development projects be subject to last-minute Green Amendment lawsuits even after passing environmental and zoning reviews? Even unsuccessful lawsuits can cost companies millions and delay projects for years.

Government agencies will also face uncertainty. New York has some of the strictest environmental laws in the nation, along with a robust state bureaucracy to enforce them. But the Green Amendment threatens to sideline those agencies, vesting the ultimate power to set environmental standards in the courts. Under a maximalist interpretation, the amendment would empower individual plaintiffs, activist groups, and the state’s endlessly innovative trial bar to dominate the environmental agenda. Ideally, federal and state environmental regulations are developed by politically accountable legislators and enforced by regulators with appropriate expertise. We expect legislators and regulators to weigh costs and benefits and hammer out policy compromises. The system is far from perfect, but it is reasonably democratic, transparent, and consistently applied.

Imagine instead a climate in which a willy-nilly barrage of lawsuits sets environmental standards. The result would be what one LRANY analyst calls “vigilante regulation through litigation.” Judges don’t have the expertise to determine whether, say, 49 parts per million of a particular pollutant constitutes a “healthy environment,” but 50 ppm does not. And the court system isn’t equipped to weigh the budgetary or economic costs of environmental rulings. Moreover, lawsuits are likely to favor localized concerns over statewide benefits. For example, I live close to a Metro North train line. That means that I’m subjected to more pollution from Metro North’s diesel locomotives than the average New Yorker. Will the Green Amendment give me standing to sue Metro North and demand that it stop using diesel trains? Should a single judge determine whether the broad benefits of mass transit outweigh the localized impact of diesel smoke? A courtroom is a terrible venue to grapple with such complex, society-wide questions. “The provision would empower courts to make critical policy choices with huge budgetary implications,” reform advocate Howard says. “It is profoundly anti-democratic.”

Defenders of the Green Amendment have little patience for these concerns. “If you’re not polluting the air or making water dangerous to drink, then you should not have any problems with this amendment,” Peter Iwanowicz, executive director of Environmental Advocates of New York told The City. But the idea that the Green Amendment will only harm polluters is simplistic. As currently written, it threatens to create delays and raise legal costs both for private industry and for public agencies such as the MTA. New York already leads the nation in civil litigation. LRANY estimates that litigation costs already add up to over $6,000 per household. The amendment would add to that burden.

Ironically, the Green Amendment might prove to be most troublesome for New York’s environmental agenda. A program launched by Governor Cuomo commits the state to eliminating carbon emissions from the electrical grid by 2040. That plan calls for rapidly building a huge number of solar and wind farms, and the construction of hundreds of miles of new power lines. Such clean-energy infrastructure projects—which involve heavy equipment, dust, and noise—invariably face resistance from nearby property owners. LRANY’s Stebbins has seen this issue first-hand, from his time working for a large wind-power firm. NIMBY lawsuits were a constant obstacle to getting wind projects approved and built. He believes the Green Amendment will dramatically increase such suits, making it harder for the state to achieve its decarbonization goals. “Even though the net environmental impact of a wind farm is overwhelmingly positive, individuals might be able to block it over very small and local concerns.”

Worse still, New York’s Green Amendment is part of a national trend. Environmental-rights amendments are moving through the legislatures of at least ten other states, including New Jersey, Maine, Washington, and Oregon. One of the leading groups backing such measures, Green Rights for the Generations, says it hopes to someday see a green amendment added to the U.S. Constitution. Before the environmental-rights juggernaut gets that far, let’s hope voters and policy experts take a more skeptical look at this dangerously seductive idea.

Photo by ED JONES/AFP via Getty Images

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