Bloomberg Law
June 24, 2022, 8:00 AM

New Yorkers’ Environmental Rights Are Under Attack

Rebecca Bratspies
Rebecca Bratspies
City University of New York School of Law
Katrina Fischer Kuh
Katrina Fischer Kuh
Pace University, Elisabeth Haub School of Law

In November 2021, over 70% of New Yorkers voted to amend the state’s constitution to explicitly protect New Yorkers’ fundamental right to clean air, clean water, and a healthful environment. New York thus joins Montana and Pennsylvania in enshrining robust constitutional environmental rights in the state constitution.

The first cases making claims under the new constitutional provision are now being filed, and states contemplating the adoption of environmental rights will be closely watching how courts define and apply New York’s amendment. Those states include New Mexico, Maine, and Maryland.

Unsurprisingly, corporate defendants argue that the new right doesn’t change anything. They claim that the environmental right is not self-executing, i.e., that the constitutional right provides no new protections and is instead defined and limited by pre-existing environmental laws. They could not be more wrong and courts in New York should be quick to affirm that the right is self-executing.

Environmental Rights in the State Constitution

New Yorkers voted to add environmental rights to the state constitution because they knew that existing environmental laws did not do enough to protect people, especially those living in disadvantaged communities. Two primary environmental problems prompted explicit constitutional recognition of environmental rights: gaps in the existing regulatory scheme, and environmental injustice.

Hoosick Falls exemplifies the first problem, that of regulatory gaps. In Hoosick Falls, residents were drinking water contaminated with the carcinogens per- and poly-fluorinated alkyl substances (PFAS). The state was unable to intervene because there were no water quality standards for these carcinogens and therefore the contaminated water did not violate the law.

The South Bronx exemplifies the second problem. Because the community is overburdened with polluting industry and infrastructure, existing laws do not do enough to provide clean air, clean water, and a healthy environment to residents.

For far too many environmental justice communities, often low-income communities of color, environmental conditions are unhealthy and have been unhealthy for generations. Even when environmental laws exist and are being applied, they do not deliver clean air, clean water, and a healthful environment for these communities.

New Yorkers voted overwhelmingly to adopt the environmental rights amendment because they recognized a plain truth: Even with good environmental laws and well-intentioned, hard-working agencies, residents will sometimes recognize that the status quo isn’t working before the politicians and regulators. The amendment gives New Yorkers a way to act when the legal status quo fails them.

It’s not surprising that corporate defendants don’t feel constrained to respect the democratic will and fundamental rights of New Yorkers. What is surprising is that attorneys arguing on behalf of New York City are also offering interpretations that would gut the constitutional environmental right.

In a recently filed brief, New York City claimed that compliance with a permit issued by the Department of Environmental Conservation constitutes compliance with the constitutional environmental right. While New York City does not go as far as to suggest that the right is not self-executing, the city’s argument fails to acknowledge that the law, the regulations issued to implement the law, or a specific permit issued under those laws and regulations might fall below the constitutional floor.

Courts will need to answer many questions about who can raise claims under the environmental rights amendment, when those claims can be raised, in what contexts, and the standards that will be used to evaluate such claims. Those questions about process and timing and the precise legal form challenges should take can, however, be vigorously and fairly explored without urging courts to gut the constitutional amendment.

Using Taxpayer Dollars to Undercut Rights

Most of the time, compliance with environmental laws and the permits issued under those laws will prevent violations of New Yorkers’ constitutional environmental rights. But the law doesn’t always get it right.

Sometimes, like in Hoosick Falls, a citizen will notice lots of people getting cancer, pay to sample his own water, learn that residents are being exposed to elevated levels of a known carcinogen, report the results—-and be told (correctly) by the New York State Department of Health that the drinking water complies with all relevant laws.

And sometimes, even if each individual local source of pollution operates with a legal permit and in compliance with relevant laws, the cumulative and aggregate impacts of too many pollution sources will produce an environment so contaminated that it violates the constitutional right.

The city is using the cover of complex arguments in a legal brief unlikely to be seen or understood by the public to try to undermine the democratically expressed will of New York voters. Instead, it could embrace the new environmental right to enhance its own regulation and enforcement for the benefit of its residents.

New York City residents who voted for the environmental rights amendment should be aware that their taxpayer dollars are being used to undercut their constitutional rights. As New Yorkers’ new environmental right enters the courtroom, corporate defendants will try their best to diminish it. But elected officials should work to protect and implement New Yorkers’ constitutional right to clean air, clean water, and a healthful environment.

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners. 

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Rebecca Bratspies is a professor of law at City University of New York (CUNY) School of Law, where she is founding director of the Center for Urban Environmental Reform. She is an internationally recognized expert on environmental justice, regulation of new agricultural technologies, and the human right to a healthy environment.

Katrina Fischer Kuh is the Haub Distinguished Professor of Environmental Law at the Elisabeth Haub School of Law at Pace University. She is accomplished scholar, particularly in the areas of climate change and sustainability, with experience working in the government and private sectors to protect the environment and natural resources.