This week, a state judge in Montana made a ruling that was the first of its kind, ordering the state to consider the greenhouse gas emissions of power plants, mines, and drilling during the permitting process. The underlying rationale was what made the ruling particularly interesting: the policy was deemed a violation of a relatively new state constitutional provision that guarantees residents the right to a healthy environment.
Here in New York, we watched that decision unfold with more than just passive interest. That’s because we have a nearly identical provision, which I wrote about briefly in a 2021 newsletter about the upcoming mayoral election and several ballot initiatives. The winner, of course, was Eric Adams, and the ballot amendment around environmental rights passed handily. At the time, the passage was celebrated as a triumph for a population increasingly besieged by the impacts of climate change, and which now had a specific, fundamental tool to combat its encroachment. Still, it was untested.
What makes this a particularly interesting time, legally speaking, is that there is absolutely no precedent here when it comes to litigation and enforcement around this state’s constitutional right. Obviously, there is ample related precedent–things like the exact scope of state agency regulatory enforcement and such, but judges have not delineated the parameters of this protection because it didn’t exist up until very recently.
Put another way, the rulings in these ongoing cases will more or less create jurisprudence and precedent around this issue in New York, interpreting what is the relatively broad tenet of a “right to clean air and water, and a healthful environment.” Does that entail simply that the state cannot prohibit consideration of environmental factors in making decisions, as the court in Montana ruled? If so, it won’t be particularly far-reaching; the state government is already trending in the direction of factoring environmental concerns into all large-scale policymaking, and it seems very unlikely that it would try to outright ban such consideration.
Yet, a judge could also take a much wider-ranging view, including the notion that the constitutional guarantee of clean air and water means, for example, that the state can take no action that will make ite have net-positive emissions in the long run, on the grounds that this will be a contributor to climate change, which will in turn pollute the air and dirty the water and produce an unhealthy environment. Could the state be ordered to somehow offset authorizations of dirty power plants? Could it be stopped from building them altogether? In theory, yes, though it’s unlikely that any one ruling would have such a significant sweep.
A look at the current seven New York cases invoking this provision, which are being compiled by Pace University, shows that they’re all relatively targeted, i.e., they are seeking to force specific actions as opposed to challenging or attempting to enact generalized state policies, as the Montana case did. For example, the latest case filed, Abdullahi v. City of Buffalo, seeks to force Buffalo to resume fluoridation of the local water supply after it allegedly stopped doing so, a case that doesn’t really have much to do with the environment at all and seems instead targeted at the constitution’s literal guarantee of clean water.
Others, like Seneca Lake Guardian v. New York State Department of Environmental Conservation, which contends that NYSDEC failed to consider the potential leakage of PFAS chemicals from an approved waste transfer facility, are more in keeping with the provision’s original environmentalist intent. Of course, we have to keep in mind that this intent could end up backfiring if it becomes a tool in the weaponization of environmental regulations against what might be environmentally friendly projects.
Let’s not forget that New Jersey is challenging New York’s congestion pricing plan — an effort that indisputably will tamp down on vehicular congestion and its attendant smog and emissions — on the grounds that its environmental review, which spans tens of thousands of pages, was not extensive enough. Indeed, Marte v. City of New York seeks to stop the construction of the Two Bridges development on the grounds that it does not properly mitigate potential environmental impacts on local residents, which could certainly be read as more of a NIMBY (not in my backyard) effort than an environmental one (there are reasonable perspectives about why this isn’t the right plan for the community, but that doesn’t mean they’re fundamentally about the environment).
The breadth of the litigation is largely a result of how undefined the rights’ scope remains under the law, and as these cases get resolved, the contours of where these rights extend will become clearer and clearer. They’ll also add to the understanding of the extent of standing to bring these suits in the first place, i.e. the legal principle that determines who can sue who and under what circumstances. Every single person in the state has these rights, and therefore the ability to bring suit under them, but bringing suit against a specific entity also requires some provable harm. As these cases resolve, they’ll clarify how direct and traceable those harms can be.
To use a cross-section of recent subjects of this newsletter as an example, could someone held at Rikers Island bring a suit against New York City for an alleged failure to mitigate the harmful impacts of unhealthy air, even if the city was not responsible for the Canadian wildfires that caused it? All of that will have to be ironed out, which makes it a particularly interesting and exciting time for this novel right that will only get more salient as climate change advances.
It’s also a good time to ponder what you think this right guarantees you. What are some ways you think your environmental rights might be getting violated? What are some situations you could envision in the future? Now’s the time to establish how far this could reach.