Editor’s note: This commentary is in the March/April 2021 issue of Adirondack Explorer magazine, as part of our “It’s Debatable” feature. In this regular column, we invite organizations and/or individuals to address a particular issue. Click here to subscribe to the magazine, available in both print and digital formats: www.adirondackexplorer.org/subscribe.

The question: “Should clean air and water be added to the New York State Bill of Rights?”

YES by Peter Iwanowicz

Every New Yorker, no matter the color of their skin, or how much money they have, or where they live, has the right to clean air, clean water, and an environment that is healthy. That’s about as noncontroversial as a statement gets nowadays. After all, we all share a basic need to drink water and breathe air; doing so shouldn’t make us sick or cut our lives short because they are dirty with chemicals. But today, that statement is just words. It lacks any real force. Because today, New Yorkers don’t have a right to clean air or clean water. But we’re on track to change that.

While there are federal and state environmental laws already on the books that deal with things like pollution, contamination and conservation, none of them protect the fundamental idea that clean air, clean water and a healthful environment are inalienable rights, meaning that they cannot be taken away. The best way to ensure that is through the New York State Constitution.

Our state constitution expresses and ensures some of our most cherished civil liberties like the freedom of speech, freedom of religion, and freedom of peaceful assembly. And there is a way to add to that list. Now that the Legislature has given the amendment final go-ahead, people voting this fall will have the opportunity to add 15 words to the Bill of Rights section of the state constitution. “Each person shall have a right to clean air and water, and a healthful environment.” By voting “yes” on this environmental right, we will send a message about our collective values and elevate the right to clean air, clean water and a healthful environment to stand amongst our highest ideals.

But clean air and clean water are, of course, more than values. Clean air and clean water (or the lack of them) are often a matter of life and death. Unfortunately, we only need to take a look around to see the outcomes if water and air aren’t clean. Air pollution is a killer. More than 6,000 New Yorkers die prematurely each year because of unhealthful levels of air pollution. Numerous communities across the state are struggling today with drinking water contaminated with cancer causing chemicals. And there is the scourge of acid rain in the Adirondacks, a dirty air/dirty water twofer.

With the stakes so high, an environmental right has to be more than just symbolic. And it is. Adding these rights to the state constitution will have a real impact on people’s lives. Its inclusion will provide the highest legal protection available under the law. It will empower people to press government to consider the implications to the environment, and ultimately our health, before decisions are made.

As the measure heads to the ballot, we’ll hear critics say “we support clean air and water,” but with their next breath they will try and convince us why we don’t need that right. They’ll tell you it’s “duplicative” even as thousands die early from breathing dirty air. They will tell you we will be overrun with lawsuits even though that hasn’t been the case in other states that have environmental rights. And finally, they will say that if we establish a right to clean air and clean water, all businesses will shut down, economic development will grind to a halt and we will face “uncertainty.” But behind the scare tactics is the simple truth—the only ones with any reason to oppose a right to clean air and water are those who make money poisoning our water and air.

Clean water, clean air and a healthy environment are as fundamental to our lives as free speech or freedom of religion. So, this fall, if you value your health and believe your family deserves to drink clean water and breathe clean air, join with millions of like-minded New Yorkers and vote “yes” for clean air and water. 

Peter Iwanowicz is executive director of Environmental Advocates NY.

***

NO by Melvin Norris

While the underlying intent is laudable, if enacted as is, the proposed amendment would undoubtedly flood courts with litigation and bring all manner of economic development to a halt.

The Business Council of New York argues that a direct right of action under the state constitution is largely unnecessary and duplicative. Judicial review of most environmental actions is readily available under Article 78 of the Civil Practice Law & Rules, citizen suits can be brought seeking enforcement of environmental statutes, and state regulators are empowered with broad authority to police harmful conduct.

An analysis of this legislation necessarily begins with standing. Standing is a legal term that determines whether the party bringing a lawsuit has the right to do so, and that a court has the requisite authority to provide adequate relief. For an individual to establish standing, they must show that they have suffered an “injury” to their person or property, that there is a relationship between the injury and someone else’s conduct or action, and that there is a remedy in law that would provide redress.

A self-executing provision in law, by contrast, creates a legally enforceable right in and of itself; it does not require that an “injury” affect one specifically, but rather just that the injury occurred. In interpreting statutes, courts determine which causes of action can be asserted and against whom, the scope and breadth of available remedies, and the level of proof needed to demonstrate injury or harm. This ensures that laws are applied consistently and reinforces foundational tenets of judicial process such as due process and equal protection. For example, under current law if a drinking water system is found to be in violation of adopted health standards, the current statutory and regulatory framework provides a pathway for injured parties to seek redress and consistent enforcement against those responsible.

However, unlike statutory law, self-executing rights lack predictability. Under this paradigm established by this bill, courts would be required to make case-by-case determinations as to whether an individual’s right to a healthful environment has been breached, a process that would require intensive fact finding, technical data and expert opinions, which are both time consuming and expensive to undertake. Courts would have to situationally determine what constitutes a “healthful environment.” This degree of uncertainty would prove cumbersome not only for the judicial system, but also for any entity doing business in the state that may interact with air, water or environment.

Aspirational goals are important. But, when those goals do not have a clear endgame and create significant collateral challenges, they can result in the opposite of the outcome desired. The Supreme Court of Pennsylvania struggled with the above issues when it considered how to apply Pennsylvania’s environmental rights provision in Commonwealth v. National Gettysburg Tower, Inc. There, the court considered all aspects of Pennsylvania’s environmental rights and was clearly concerned about possible due process and equal protections issues resulting from arbitrary enforcement. In fact, the court questioned the provision’s application to private property. Without due consideration of its direct and indirect impacts, this legislation could have a permanent impact on New York’s ability to create meaningful economic development and jobs while simultaneously not achieving the sponsors’ underlying intent. It is for the above reasons that the Business Council opposes passage of the amendment as currently written.

Melvin Norris is senior director of government affairs for the Business Council of New York.

Photo: Boreas River headwaters, Phil Brown/Almanack archive