New Yorkers will have a constitutional right to “clean air and water, and a healthful environment” at the start of the new year, as unofficial election results show the ballot referendum to amend the state’s constitution passed by nearly 70% of voters this election.
New York joins six other states with constitutionally based protections on environmental rights. The proposition voted on by New York residents, often referred to as a “green amendment,” will be part of section 19 of the state’s Bill of Rights (Article 1), putting it on par with fundamental rights like freedom of speech, trial by jury and equal protection under the law.
The state legislature passed a bill in support of the amendment in two consecutive legislative sessions, authorizing the referendum this year.
With the new amendment comes a new strength for environmental advocates and residents of the state, who now have a legal ground to stand on when challenging the actions of entities that violate what is now a fundamental right.
However, the practical extent of its protection is uncertain, as the 15-word amendment’s vague language will only be as strong as its interpretation by state courts. Its ambiguity has been a criticism of its adoption by legal scholars.
“It will be up to the courts in the coming years to shape the impact of this Amendment on private citizens, state agencies, and companies alike,” a memo released on Nov. 11 by Dechert LLC, an international law firm, says.
Constitutional protections for environmental rights have had few impacts on case law in states that have adopted them, like Pennsylvania and Montana. Constitutional protections in many states haven’t been strictly interpreted until the last couple of years, despite having been adopted in the early 1970s, according to a July report by the Rockefeller Institute of Government’s Center for Law & Policy Solutions.
Although the actual legal impact of the amendment in New York is still unknown, environmental advocates remain hopeful for change. Peter Iwanowicz, the executive director of Environmental Advocates NY, an organization who advocated for the amendment’s passage, said the adoption of the green amendment shows the public believes current laws and regulations are not good enough.
“People would ask us: don’t we have a right to clean water or don’t we have this right to clean air? And our answer was as humans, yes, but legally, in the eyes of New York State, we don’t,” he said.
“The first goal was to actually add this right that most people thought they had,” he said.
It’s unclear how the amendment will affect state agencies like the Department of Environmental Conservation, or environmental protection laws and regulations like the State Environmental Quality Review Act, known as SEQRA, which must be used to identify, evaluate and mitigate adverse environmental impacts of all proposed actions.
Iwanowicz said the amendment will give more power to citizens’ voices.
“Citizens will be able to, starting in January, be attending town meetings and petitioning planning boards, zoning boards and any number of different things and urging them to screen their decisions and ensure that those decisions are consistent with this new right that New Yorkers now have,” said Iwanowicz.
Iwanowicz said the biggest effect of the amendment will likely be the shift of the burden of proof of environmental and pollution impacts for developing projects. “What the amendment will do is usher in a new ethos of preventing pollution rather than merely controlling it or dealing with crises after the fact,” he said. “Decisions will be made with an eye towards pollution prevention, not pollution control, and that’s really important.”
The conversation around the amendment’s reference to clean water could have an impact on the East End and in Riverhead, where groundwater wells are threatened by emerging contaminants.
“In the past, clean water has been treated like a luxury item and not a necessity,” said Adrienne Esposito, the executive director of Citizens Campaign for the Environment. “This changes that dynamic and legally gives us the right to say it’s a necessity.”
Esposito said the amendment can also be used as the basis of important legislation to set the drinking water standard and regulate chemicals like PFAS. PFAS seeped into the Riverhead Water District’s drinking water supply, prompting the town last November to authorize a federal product liability lawsuit against three major manufacturers seeking damages.
She also said the regulations can help regulate activities that can have a harmful impact on drinking water, like sand mining. Riverhead has sued the DEC and the mining operator to nullify the agency’s decision against an in-depth environmental review for the expansion of a Calverton sand mine that has a significant risk to the aquifer.
“The DEC needs to be more judicious about regulating sand mining so it’s not polluting groundwater,” Esposito said. “So it’s about giving greater strength to the public and to regulatory agencies to live up to the right of the public to have clean water.”
It may also present a “political turf war” between the Suffolk County Water Authority and the Riverhead Water District, Esposito said, because “they’ll be less able to delay the implementation of clean water because the public has it as a right.” Both entities have submitted requests for federal funding to bring public water to residents near the former Grumman plant in Calverton, where PFAS and other contaminants have been found in private drinking water wells.
Riverhead Water District Superintendent Frank Mancini said the amendment has no weight behind it. “Unless there’s funding attached that says, ‘here, people want water, here’s the money to pay for it,’ it doesn’t change the game in any way, shape, or form,” he said.
While advocates wait to see how legal conversations around the amendment develops, they say the passage of the ballot measure by an overwhelming majority is significant.
“You look at the result, we had nearly 70% of voters saying yes, and 30% saying no in a time like this, where we’re so polarized, this is really something that people really wanted across party divide,” Iwanowicz said.
In a local election year where several Democratic incumbents across Long Island were unseated by Republicans, clean water had bipartisan support, Esposito said.
“All the other ballot referendums went down,” Esposito said, referring to the failed ballot proposals to amend election law. “In a year when the voters were saying no to everything, they said yes to clean water.”
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