"When the constitution was first written, the environment was not...

"When the constitution was first written, the environment was not an issue," said Assemb. Steven Englebright (D-Setauket), the proposal's sponsor in the Assembly, here on the banks of Conscience Bay in Setauket last year. "In our modern time, the environment is under siege." Credit: Newsday/John Paraskevas

New York voters will be asked next month to decide on a change to the state constitution that would put the right to a clean environment on par with the right to free speech and due process, a proposal that's drawn both supporters and critics.

Ballot proposal No. 2 asks voters to "establish the right of each person to clean air and water and a healthful environment." The so-called green amendment would add that guarantee for all New Yorkers to Article 1 of the constitution, which is the state bill of rights.

Supporters say enshrining the right in the constitution could strengthen lawsuits against polluters and force lawmakers to weigh environmental benefits when considering legislation. But opponents argue the amendment’s vague wording could lead to costly lawsuits and stall infrastructure like affordable housing, and wind and solar projects.

Assemb. Steven Englebright (D-Setauket), the proposal’s sponsor in the Assembly, said the provision elevates environmental concerns to reflect the current circumstances.

"When the constitution was first written, the environment was not an issue," he said. "In our modern time, the environment is under siege."

Constitutional amendments require passage in two legislative sessions before going to voters, and the measure passed both houses in 2019 and 2021. The legislation cites "recent water contamination and ongoing concerns about air quality" as a need for additional environmental protections.

A 2019 report from the New York Public Interest Research Group found Long Island drinking water, which comes from beneath the ground, has "by far" the most emerging contaminants of any region in the state.

Broad base of support

The nonprofit Environmental Advocates of New York is spearheading the "Vote YES for Clean Air and Water" education and outreach campaign in favor of the amendment. The group contends the amendment is more than just symbolic, and if adopted would have actionable consequences.

"Don't we have a right to drink clean water or breathe clean air that's not going to trigger an asthma attack or worse?" said Peter Iwanowicz, EANY’s executive director. "Morally, the answer is yes, you do have that right. But in the eyes of New York State law, there wasn't a legal right."

The coalition counts more than 40 organizations among its supporters, including locally the Long Island Progressive Coalition and the Farmingdale-based Citizens Campaign for the Environment.

The movement has broad appeal across ages, political affiliations and other demographics, Iwanowicz said.

If adopted, the proposal would influence government decisions because officials would have to weigh whether an initiative could violate someone’s right to a clean environment. It also could add heft to lawsuits filed against existing pollution sources, Iwanowicz said.

"When this right is added to our constitution, that will lead to better government decisions," he said.

Worries for 'unintended consequences'

But opponents say the amendment’s nonspecific wording could lead to costly litigation and that they fear it could obstruct development.

Michael Giaimo, Northeast region director for the American Petroleum Institute, said in a statement that while the industry supports clean air and water, the amendment’s language is too broad.

"The resulting unintended consequences of this language could include restrictions on land-use initiatives in the state, affecting affordable housing, high-density development and energy projects such as wind and solar facilities, and electric transmission lines," he said.

Thomas Stebbins, executive director of the nonprofit Lawsuit Reform Alliance of New York, said the provision could lead to a spike in lawsuits and add to the cost of doing business in the state. It also could allow people to stop green-energy projects, such as wind farms, on the grounds residents are harmed by the related infrastructure, he said.

"We believe that it will be abused by NIMBYs to essentially halt development under the auspices of environmental impacts," Stebbins said. "It will also incentivize people to bring lawsuits to gain profits, not to gain environmental justice."

Iwanowicz countered that both Montana and Pennsylvania have had similar language in their respective constitutions without serious economic impact.

"If you're not poisoning water or poisoning the air, this provision added to the constitution really shouldn't be a concern," Iwanowicz said.

Maya van Rossum, who leads the Delaware Riverkeeper Network, is spearheading a national movement to install green amendments in all 50 states and eventually at the federal level. Doing so could force governments to prevent pollution rather than manage it after the fact and could address structural inequalities and environmental racism, she said.

Van Rossum’s organization and seven local municipalities sued the Pennsylvania Commonwealth in 2012 on the grounds that part of a state fracking law known as Act 13 violated the constitution’s environmental clause, which had been on the books since 1971. The state’s highest court in 2013 ruled in their favor and struck down a provision that would have required all municipalities to allow fracking and preempt local zoning laws.

"We actually won an incredible legal victory where the Pennsylvania Supreme Court declared provisions of Act 13 that we were challenging to, in fact, be unconstitutional," van Rossum said. "With that victory, we defeated some of the most devastating aspects before they ever got to be implemented."

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