Albany Times Union (Sunday)

Deciding to come clean

Green Amendment will give New York voters the chance to improve health of the state

- By Rick Karlin Albany

This November voters will decide whether the state constituti­on should be amended to include a right to clean air and water, as well as a healthy environmen­t.

Getting that propositio­n on the ballot took years of pushing by environmen­tal organizati­ons. They say it places the idea of a clean environmen­t on the same level as other basic rights such as freedom of religion, trial by jury, freedom of speech and even the right to play bingo (yes, that is specified in the state constituti­on’s Bill of Rights).

Moreover, the concept of a “Green Amendment” sounds like something that would easily be approved by voters. After all, who doesn’t want clean air and water and a healthy environmen­t?

But months ahead of the vote, the proposal has become a source of debate, with opponents calling it a boon for trial lawyers and another impediment to doing business in New York.

“This proposed Green Amendment will lead to an explosion of litigation,” said

Tom Stebbins, executive director of the Lawsuit Reform Alliance of New York. He sees such an amendment as a giveaway to New York’s politicall­y powerful and deep pocketed trial lawyers who he says are constantly looking for new ways to pursue lucrative lawsuits. The Business Council of New York State also says its members fear the litigation and uncertaint­y over lawsuits that could result.

“Courts would have to situationa­lly determine what exactly constitute­s a ‘healthful environmen­t.’ This degree of uncertaint­y would prove remarkably cumbersome,” reads a Business Council memo against the measure.

But supporters say the fears are overblown and they note that court precedents will shape the contours of how these new rights, if approved, are enforced.

“If the voters approve it in November, this language will finally put in place safeguards that require the government to consider the environmen­t and our relationsh­ip to the Earth in decision making. If the government fails in that responsibi­lity, New Yorkers will finally have the right to take legal action for a clean environmen­t because it will be in the state constituti­on,” said Manhattan Democratic Sen. Robert Jackson, who sponsored the bill in his chamber.

Having the right to a healthy environmen­t in the state constituti­on could also “course correct” the history of putting polluting industries near or in disadvanta­ged communitie­s, added Eddie Bautista, executive director of the New York City Environmen­tal Justice Alliance.

“Enshrining a right to clean air and clean water into our state constituti­on will help empower those who suffer the effects of pollution,” said Bautista.

Specifical­ly, the amendment if passed would say that “Each person shall have a right to clean air and water, and a healthful environmen­t.”

Christine Primomo, a Coeymans activist who has battled the town’s Lafarge Holcim cement plant over air emissions, said she would welcome the amendment but doesn’t believe it would be a cure-all for environmen­tal problems. “Yes and no,” she said.

“It states that we have a right to clean air. It’s a simple propositio­n,” she said. But it might not get to the level of state or local legislatio­n that would, say, allow or prevent Lafarge’s proposal to burn discarded tires in its kiln, which has been a source of controvers­y.

New York has no system in which the public can petition to have a state constituti­onal amendment put on the ballot. Instead, legislator­s over two sessions in a row must approve putting an amendment before the voters. Lawmakers recently approved putting the Green Amendment on the November ballot.

Other successful pushes to amend the constituti­on included the 2013 vote to allow Las Vegas-style casinos (apart from those on Native American lands) to operate in New York. More modest propositio­ns for constituti­onal amendments have also passed over the years such as a 2013 change that allowed a North Country mine to expand into the constituti­onally protected Adirondack Forest Preserve. In exchange, the mining firm provided more land to the preserve.

A Green Amendment codifying environmen­tal rights would be a landmark move that could have sweeping impacts on how New Yorkers deal with pollution issues and on how industry operates going forward.

But certain industries fear that having such rights in the constituti­on might spur lawsuits against air or water polluters that are operating under existing legal emissions permits granted by the state. It also could put municipali­ties and even state government on the hook for allowing or permitting operations that violate the right to a clean environmen­t and make companies think twice before starting or permitting new projects that could result in air or water pollution.

There are already a number of ways that people can go to court to fight pollution. But passage of the propositio­n would create another avenue outside of the legislativ­e and regulatory arena, since Bill of Rights cases are the province of the courts.

“We have thousands of laws on the books dealing with environmen­tal issues but if you look at them they are all about permitting pollution or abating pollution. None of them are about thinking about it prospectiv­ely,” said Kate Kurera, deputy director of Environmen­tal Advocates NY, one of some 70 groups and supporters who welcomed the bill’s recent passage.

Other supporters included the Adirondack Mountain Club, Food and Water Action, Sierra Club Atlantic Chapter and the AFL-CIO.

The fossil fuel industry, which has been hit by both price volatility and the state’s push toward renewable energy, is worried. “Everyone is entitled to clean air and water, but the legislatur­e has not defined what constitute­s these rights, leaving it to the courts and endless litigation to determine,” according to New Yorkers for Affordable Energy, a group of energy industry companies.

If neighbors of, say, a local landfill like the S.A. Dunn landfill in Rensselaer or the Norlite incinerato­r in Cohoes sued on the grounds that emissions or dust or odor violated their right to a healthy environmen­t, the courts, rather than state reg

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“We have thousands of laws on the books dealing with environmen­tal issues but if you look at them they are all about permitting pollution or abating pollution. None of them are about thinking about it prospectiv­ely.” — Kate Kurera, deputy director of Environmen­tal Advocates NY

ulators such as the Department of Environmen­tal Conservati­on, could ultimately decide an outcome.

“All of this will have to be tested in court,” said Kurera. “There will be certain test cases that will be needed to articulate what this right will be.”

While some unions involved in fossil fuels don’t like the bill, Mario Cilento, president of the state’s AFL-CIO, believes it will foster new clean energy jobs. “If enacted, this constituti­onal amendment will enshrine those rights and in turn promote investment in water infrastruc­ture and new energy technologi­es,” he said.

Still unknown is whether there will be heavy, and expensive, campaigns for or against the propositio­n. That happened in 2017 when the state’s public sector unions successful­ly fought a vote for a constituti­onal convention. They feared that anti-union activists could use such a convention to dismantle

some of the civil service protection­s they currently enjoy under the state constituti­on.

As of mid-march, neither supporters nor opponents signaled that any such ad or publicity campaign like in 2017 or with the push to approve casinos in 2013 was in the offing.

Additional­ly, the final vote in the Legislatur­e to put it on the ballot came up fairly quickly during this year’s legislativ­e session and opponents had little time to lobby against it, according to insiders.

Approval also came as lawmakers might revisit another environmen­tal ballot measure — the $3 billion bond act that was originally planned for November 2020.

That bond, which would have funded a variety of environmen­tal cleanup, land purchase and resiliency projects, was put aside last year amid the economic uncertaint­y created by the COVID -19 pandemic. But there was an indication in the Legislatur­e’s budget proposals over the weekend that it is back for considerat­ion in the state’s 2021-22 spending plan; it was not included in Gov. Andrew M. Cuomo’s budget proposal however.

Those on both sides of the issue agree that the term “Green Amendment” would draw a lot of support on the face of it. But there is also room for confusion.

The National Caucus of Environmen­tal Legislator­s, which supports such amendments, takes pains to explain that this is different from the Green New Deal, the massive, nationwide public works program that some federal lawmakers have called for.

Pennsylvan­ia and Montana both have similar amendments in their bills of rights and four other state legislatur­es are considerin­g constituti­onal amendments: Maryland, New Jersey, Vermont and West Virginia.

Ultimately, it will be up to the voters in New York to decide, observed Blair Horner, executive director of NYPIRG, which favors the amendment.

“It’s not a done deal until it goes to the voters,” he said.

 ?? Photos by Will Waldron / Times Union ?? A view of the Saratoga Sites Apartments complex shows its proximity to the Norlite aggregate and incinerato­r plant in Cohoes. Local residents are suing Norlite and parent company Tradebe over claims of exposure to hazardous silica dust that contains harmful glass particles.
Photos by Will Waldron / Times Union A view of the Saratoga Sites Apartments complex shows its proximity to the Norlite aggregate and incinerato­r plant in Cohoes. Local residents are suing Norlite and parent company Tradebe over claims of exposure to hazardous silica dust that contains harmful glass particles.
 ??  ?? An Albany sewer overflow pipe discharges into the Hudson River behind 139 Broadway.
An Albany sewer overflow pipe discharges into the Hudson River behind 139 Broadway.
 ?? Photos by Will Waldron / Times Union ?? The Lafargehol­cim cement plant, which activists say pollutes the environmen­t, is seen from above Route 9W in Ravena.
Photos by Will Waldron / Times Union The Lafargehol­cim cement plant, which activists say pollutes the environmen­t, is seen from above Route 9W in Ravena.
 ??  ?? Clean Air Coalition of Greater Ravena and Coeymans members Christine Primomo, left, Ray Kottke and Barbara Heinzen stand within view of the Lafargehol­cim cement plant on Route 9W in Ravena.
Clean Air Coalition of Greater Ravena and Coeymans members Christine Primomo, left, Ray Kottke and Barbara Heinzen stand within view of the Lafargehol­cim cement plant on Route 9W in Ravena.
 ?? Will Waldron / Times Union ?? Emissions rise from the Norlite incinerato­r plant in Cohoes.
Will Waldron / Times Union Emissions rise from the Norlite incinerato­r plant in Cohoes.

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