‘Kye’ Krittika Shah

OF NOTE

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this in their own states so we can be sure we get it right. We don’t want a repeat of the 70s where we had lots of states adding environmental language to their constitutions but not securing any meaningful change. And now in New York we need to be sure to set strong and powerful precedent that we can all build upon. It’s time to put the right to best use for the people and our environment,” she added.

Leadership on the environment

“That New York state is one of the first to pass the Green Amendment is completely in character because the state has a long tradition of leadership on the environment," said Professor Robinson, who has pioneered environmental law since 1969 and has served as a general counsel of the New York State Department of Environmental Conservation.

The push for a green amendment in New York is in part motivated by the defunding of the state's Department of Environmental Conservation during the Cuomo administration that weakened the enforcement of state laws, he said.

Since 1990, New York has failed to meet its duty to provide an adequate margin of safety for children, the elderly, or those with impaired lungs. This is an environmental justice issue also, since asthma rates for people of color are markedly higher than for others. By invoking their Right to Clean Air, citizens could petition New York courts to order the governor and the DEC to mandate measures that restore healthy air quality, Professor Robinson said.

Haub Law professors Jason Czarnezki and John Humbach also made important contributions to the Green Amendment scholarship in this connection, as did Haub Law alumnus and former faculty member Robert J. Goldstein (LLM '92, SJD '01), a professor in the law department at West Point, and Haub Law Visiting Professor, James May, Professor Robinson said. As a Distinguished Professor of Law, Founder of the Global Environmental Rights Institute, and co-Founder of the Dignity Rights Project and the Environmental Rights Institute at Widener University Delaware Law School, Professor May is a leading voice on environmental rights around the world.

“Pace’s leadership shines through in the leadup to the passage of the Green Amendment—no other law school comes close,” Professor Robinson said.

By adopting the Green Amendment, voters amended the New York Constitution to provide a right to the environment for everyone in the state. The Constitution’s Bill of Rights now states in Article 1: “Environmental rights. Each person shall have a right to clean air and water, and a healthful environment.”

“When New York voters amended the Bill of Rights, they decided that our birthrights to breathe and for potable water and to enjoy a healthful environment deserve the most powerful legal protection our State can afford. New York’s Environmental Rights are expressed more forcefully and gracefully than in any other constitution,” said Professor Robinson.

“We lawyers have a solemn responsibility duty to breathe life into this legal bulwark for ensuring each person’s fundamental birthrights. Our obligation is to serve our Constitution’s Bill of Rights as if life itself depends on our actions,” he said.

The law is now to be applied by all state agencies and local governments. The environmental bar and New York law professors had been advocating for such a selfexecuting right for two decades. A few editorials urged “no” votes, fearing a spate of new litigation. The vote to add this amendment was all the more remarkable because voters on that same ballot declined to adopt other constitutional amendments.

The voters’ decision may reflect their concerns that New York was failing to protect human health. New Yorkers have grown anxious about the increasing effects of climate change recently. New York City is still recovering from Hurricane Sandy in 2012. Voters are experiencing localized flash floods and intense weather events that threaten New York agricultural production and the flora and fauna in New York’s fabled Adirondack & Catskill Forest Preserve.

The Right to Clean Air exemplifies ongoing struggles to secure environmental health. Air pollution accumulates from diverse sources. For several years, New York has failed to strengthen its State Implementation Plan to abate air pollution in compliance with the federal Clean Air Act. The plan is designed to protect vulnerable persons afflicted by asthma or other respiratory diseases. Oversight by the US Environmental Protection Agency has been lax in requiring New York to attain mandated clean air standards.

The clean water and air in the Green Amendment means that individual citizens can sue to protect their rights. From 2014 to 2016, residents of Hoosick Falls had to endure two years of cooking and bathing with poisoned water before the state Department of Environmental Conservation and the US Environmental Protection Agency could provide safe water. Local industry had contaminated the aquifers providing their water. Judicial intervention could have imposed remedies securing their right to clean water. During this same time, citizens of Flint, Michigan, sued invoking their constitutional rights to due process of law, and governmental agencies at once began to supply safe drinking water. A constitutional right accords to individuals a priority in securing relief from threats to life and health.

New era of jurisprudence

The Green Amendment ushers in a new era of environmental jurisprudence. Legal victories secured in the only two other states that have constitutional Green Amendments—Montana and Pennsylvania—are demonstrating the power of this pathway for protection, van Rossum said.

She said further that the amendment has been used to strike down bad laws, to void harmful permits, to secure clean-up of long ignored toxic sites, and to guide good government action at the local level that is protecting water, air, soils, ecosystems and human health. van Rossum is careful to add that to be a “Green Amendment” and raise the environment up for highest constitutional protection, there are certain criteria that must be met, and at this point only three states, now among them New York, have accomplished that.

With environmental security increasingly at risk, New York’s new “Green Amendment” can offset the serious environmental risk. New Yorkers can petition Albany or City Hall to redress their environmental grievances. Individuals can go to court to secure the protections promised by environmental statutes. When there is a gap in protection, people can turn to their right to a clean and healthful environment to secure needed protection. Freedom entails preserving each individual’s capacities to foster resilience and to protect life, livelihood and property. New York’s Bill of Rights, bolstered by the New York Green Amendment, now provides the foundation for realizing the environmental rule of law.

People who want to become part of Green Amendment efforts in their state can learn more and get engaged at www.ForTheGenerations.org. n

HAUB HEADLINES

A Change-Making Collaboration

The Elisabeth Haub School of Law at Pace University and Pace University’s School of Education were awarded a collaborative grant from the National Science Foundation as part of their Research Experiences for Undergraduates program. The grant will serve to expand STEM and Technical Education Pathways in New York City Schools.