‘Green Amendment’ should fail
If approved by New York voters next month, the proposed “Green Amendment” would amend the New York Constitution to provide that “(e)ach person shall have a right to clean air and water, and a healthful environment.”
All reasonable people would agree that the environment must be protected, and New York now has a very strong environmental regulatory system based on state laws and regulations. These laws and regulations have been repeatedly strengthened in the past and can be further amended to address any shortcomings. The Green Amendment is not the answer to New York’s environmental problems and should be defeated.
The amendment’s open-ended language would generate an avalanche of lawsuits claiming that private parties as well as the state and local governments have in some manner failed to provide clean air and water and a healthful environment. In these cases, plaintiffs’ lawyers and judges, rather than the Legislature and the governor, would make complex environmental policy in an ad hoc, caseby-case manner without any public input. Further, courts would very likely award massive judgments against the government, giving judges and juries the final say over governmental budget priorities, without regard to other critical competing needs such as health care and infrastructure. The taxpayers, who have had no say in the matter, would be responsible for satisfying these judgments. The only winners would be plaintiffs’ lawyers.
Under the present constitution, the Legislature and the governor, who are directly accountable to the voters, are the state officers who make environmental and budget policy. Granting such broad policy making authority only to people who must frequently answer to the voters for their actions is essential in a democracy. Deciding how best to protect the environment involves the careful balancing of many competing health, economic and other interests of New York’s residents, businesses and everyone else affected. Balancing the costs and the benefits of regulation, and determining who should bear the costs and receive the benefits, is what legislatures do.
Similarly, budgeting, that is, deciding how much the state should spend each year on health care, infrastructure, housing, education, environmental protection and many similar needs, and deciding how much tax revenue should be raised to pay for these needs, and from whom, is best done by the Legislature and the governor. Public input should follow after a thorough consideration of both the pressing needs of the public and the resources available to provide for those needs. In passing laws and making a budget, the Legislature frequently conducts investigations, holds hearings, solicits comments from interested parties, and obtains input from constituents, ensuring that people with an interest in the matter have the chance to comment.
The proposed amendment would upend this democratic process and hand substantial environmental policymaking and budgeting authority to the courts. The amendment does not define the terms “clean air and water” and “a healthful environment” and does not specify who is authorized to define them. It pointedly does not authorize the Legislature to do so. Nor does the proposed amendment specify how its vague terms are to be enforced, or, more importantly, who is to enforce them. By leaving out these crucial details, the amendment opens the door wide to policy making by litigation.
Having courts decide environmental policy and how scarce state financial resources should be allocated among many competing needs is itself a very bad policy. First, many judges (including those of the Court of Appeals, New York’s highest court) are not elected, and even those who are elected serve long terms and face the voters only rarely. Second, courts exist to resolve disputes among the parties to a particular case. Only judges, juries, witnesses and lawyers are involved, and the case is resolved based on the evidence assembled by the parties for the purposes of that case alone. The only questions are whether the defendant has impaired a right of the plaintiff, and if so, what the remedy should be. There is no requirement for public input and courts need not consider the views of nonparties. In resolving a case, courts do not weigh and balance competing public interests.
Although environmental litigation is already commonplace, courts today are constrained by the existing legal framework created by lawmakers who are answerable to the voters. But under the amendment there would be no limit on the power of judges and juries to decide what “clean air and water” and “a healthful environment” require in any particular case, and how much should be spent to obtain them.
Just how broadly the amendment, if adopted, will be construed will ultimately be up to the courts, but history shows that judges have not been shy about enlarging their authority. The voters should reject the Green Amendment because it would make the courts rather than the people’s elected representatives the last word on the state’s environmental policy and budget priorities.
Having courts decide environmental policy and how scarce state financial resources should be allocated among many competing needs is itself a very bad policy.