Schwartz & Appel: New York’s Environmental Rights Constitutional Amendment Will Require Sound Judicial Interpretation

On November 2, 2021, New York voters approved a ballot initiative to amend the New York Constitution’s Bill of Rights to provide that “Each person shall have a right to clean air and water, and a healthful environment.” The amendment, commonly referred to as the Environmental Rights Amendment, proposes to make clear that the public’s right to drink clean water, breathe clean air, and live and work in a healthy environment is as fundamental as other constitutionally protected rights, such as a person’s right to free speech or assembly. Less clear, however, is what this newfound right to “clean” water and air means as a practical matter, and the scope of a right to a “healthful environment.”

The interpretation of New York’s Environmental Rights Amendment is virtually certain to occupy the judiciary’s time and attention in the coming months and years. On one hand, the amendment may be interpreted to bolster the state’s commitment to environmental conservation and other issues, such as promoting investment in water infrastructure and new energy technologies. On the other hand, the amendment could be interpreted to usher in an era of unsound and unbounded environmental litigation over anything claimed to impede a “healthful environment.”

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