‘Green’ Amendment Could Wreck NY Biz

ON Nov. 2, New Yorkers will vote on five proposed changes to the state Constitution. One of these, Proposition 2, would amend the Constitution to include these seemingly innocuous words: “Each person shall have a right to clean air and water, and a healthful environment.” On its face, the proposal seems straightforward and appealing. Who could be against clean air and water? With backing from a host of environmental organizations as well as putative good-government groups such as the League of Women Voters, the amendment is expected to pass decisively. But beneath its innocent veneer, the amendment could upend environmental law in the state.

As written, the amendment appears to give individuals and activist groups undefined — potentially unlimited — rights to sue both the state government and private parties over perceived environmental wrongs. In other words, Tom Stebbins of the Lawsuit

Reform Alliance of New York says, the measure takes environmental enforcement “out of the hands of accountable elected officials and puts it in the hands of private attorneys.

That’s not the way to govern.”

Some other states, including Pennsylvania, Montana and Massachusetts, spell out a version of “environmental rights” in their constitutions. To date, these environmental-rights amendments have not led to overwhelming litigation, but legal experts note that such amendments in Pennsylvania and other states are more narrowly focused than the one proposed for New York.

In apparently empowering private citizens to bring lawsuits against any party they perceive to be in violation, the Green Amendment is radically more expansive than similar amendments in other states.

New York’s amendment doesn’t define terms, such as “clean” and “healthful.” Nor does it spell out enforcement mechanisms, penalties for violations or roles for existing state agencies. That vagueness wasn’t an oversight on the part of the measure’s authors. Green Amendment supporters know that the simple language will sound benign and appealing to voters, while the amendment’s lack of specificity will ensure maximum latitude for legal activists and law firms seeking to challenge both state regulations and private industry.

It will be up to New York courts to figure out how this measure will work in practice. The courts could put reasonable guardrails around how citizens can execute these new rights. Or they might take an anything-goes approach. These questions could take decades to sort out.

This uncertain legal climate could be devastating for private industry in New York. Businesses can cope with clear and consistently enforced regulations, but it’s hard to plan or raise capital in a capricious regulatory environment. Would a New York business be held liable for emissions levels that are currently legal under state law?

JAMES B. MEIGS

Will development projects be subject to last-minute Green Amendment lawsuits even after passing environmental and zoning reviews? Ironically, even clean-energy projects like wind turbines could encounter crippling legal challenges.

Government agencies will also face uncertainty. New York has some of the strictest environmental laws in the nation, along with a robust state bureaucracy to enforce them. But the Green Amendment threatens to sideline those agencies, vesting the ultimate power to set environmental standards in the

‘ New York’s amendment doesn’t define terms, such as “clean” and “healthful.”’

courts. Under a maximalist interpretation, the amendment would empower individual plaintiffs, activist groups and the state’s endlessly innovative trial bar to dominate the environmental agenda.

Imagine a climate in which a willy-nilly barrage of lawsuits sets environmental standards. The result would be what one LRANY analyst calls “vigilante regulation through litigation.” Judges don’t have the expertise to determine whether, say, 49 parts per million of a particular pollutant constitutes a “healthy environment,” while 50 ppm does not. And the court system isn’t equipped to weigh the budgetary or economic costs of environmental rulings.

New York’s Green Amendment is part of a national trend. Environmental-rights amendments are moving through the legislatures of at least 10 other states, including New Jersey, Maine, Washington and Oregon. One of the leading groups backing such measures, Green Rights for the Generations, says it hopes to someday see a green amendment added to the US Constitution. Before the environmental-rights juggernaut gets that far, let’s hope voters and policy experts take a more skeptical look at this dangerously seductive idea.