Environment Detailed

Do we want New York State’s drinking water to turn into Flint, Michigan’s?

The Problem

We have no right in our state constitution to a clean, healthy environment, nor any ability for a citizen to sue to enforce such a right.

The “Forever Wild” provision in New York’s 1894 constitution, which assures that the Catskill and Adirondack parks enjoys the highest degree of protection of wild lands in any state, is a proud model for the nation of environmental protection and conservation.

However, as the pollution of drinking water in areas of the state like Hoosick Falls has vividly demonstrated of late, New York still must do much more to protect our environment.

The Solution

Our constitution must grant all New Yorkers a private right to clean and healthful air and water and the ability to seek redress through the courts when this right is violated, to assure the protection of our other national resources for the benefit of present and future generations.

For example, language proposed by Harvard Law School states:

Present and future generations of citizens of the State have the right to an ecologically healthy environment. This right includes but is not limited to: the enjoyment of clean air, pure water, and scenic lands; freedom from unwanted exposure to toxic chemicals and other contaminants; and a secure climate…. Individuals and groups who believe their environmental right has been violated may seek redress in state courts against alleged violators, both public and private.

The state of Hawaii also has strong environmental provisions in their constitution:

Each person has the right to a clean and healthful environment, as defined by laws relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources. Any person may enforce this right against any party, public or private, through appropriate legal proceedings…

These are just two examples New York can adapt.  Recently, bill 6279 was submitted to the New York Assembly to add the following words to the New York State Constitution: “Each person shall have a right to clean air and water, and a healthful environment.”  This amendment must be seriously considered.

Fast Facts

  • There is no environmental protection or conservation mandate in the U.S. Constitution.
  •  Many other states have amended their constitution to incorporate protecting the environment, including Illinois, Pennsylvania, Montana, Massachusetts and Rhode Island.
  • “The United States places heightened importance on legal principles, such as the freedoms of speech and religion, once they have been enshrined as rights. In the legal hierarchy, rights are elevated above statutes and regulations. If statutes do not sufficiently protect against pollution, both current and cumulative, rights can help ensure that governments find a better solution. An environmentally focused, rights-based framework obligates governments to act in a way that takes into account the needs of future as well as present generations.” – From An Environmental Right for Future Generations: Model State Constitutional Provisions & Model Statute, a document produced by the Science and Environmental Health Network and The International Human Rights Clinic at Harvard Law School.
  • Costa Rica has long been a leader in the environmental movement worldwide. A 1949 amendment to Costa Rica’s Constitution states: “All persons have the right to a healthy and ecologically balanced environment. For that, they are legitimated to denounce the acts that infringe this right and to claim reparation for the damage caused.”
  • In France, the Constitutional Charter on the Environment was adopted in 2005. Article One states, “Everybody has the right to live in a balanced environment which shows due respect for health.” Perhaps more interesting is Article Seven: “Everybody has the right, in the conditions and to the extent provided for by law, to have access to any information pertaining to the environment in the possession of public bodies and to participate in the public decision-making process likely to affect the environment.”

History

  • “There is no similar provision in any other state constitution, and it is generally regarded as the most important and strongest state land conservation measure in the nation,” writes William R. Ginsberg about the “Forever Wild” provision in the book Decision 1997: Constitutional Change in New York.
  • The “Forever Wild” provision, approved in 1894, came out of a Constitutional Convention. Article XIV’s original wording, found below, still survives today.
  • As important as the “Forever Wild” clause is, it has been amended nearly a dozen times since its inception. On a number of occasions, it has been amended to allow “for the exchange of parcels of forest preserve for other parcels of equal or greater acreage and value,” explains Ginsburg. It has also been amended to allow for the construction of ski trails, to eliminate dangerous curves and grades on state highways, and to allow for the building of an interstate.
  • Most recently, in 2013, voters approved an amendment to “Forever Wild” to allow the company NYCO Minerals to prospect for wollastonite on approximately 200 acres of forest preserve in Essex County in exchange for an equal acreage land swap and the remediation and return of the land NYCO is authorized to utilize after it is done mining it.

The following is language for a potential Constitutional amendment (not specifically written for New York), as proposed by the Science and Environmental Health Network and The International Human Rights Clinic at Harvard Law School.

1: Right to an Ecologically Healthy Environment

(1) Present and future generations of citizens of the State have the right to an ecologically healthy environment. This right includes but is not limited to: the enjoyment of clean air, pure water, and scenic lands; freedom from unwanted exposure to toxic chemicals and other contaminants; and a secure climate.

(2) This right is self-executing although it shall be maintained and strengthened under the guidance of the State Legislature.

(3) Individuals and groups who believe their environmental right has been violated may seek redress in state courts against alleged violators, both public and private. The State Attorney General is also charged with the enforcement of this provision, with or without additional legislative guidance, on behalf of all citizens, including future generations.

(4) The environmental right enumerated in this section is held to be fundamental to present and future generations of citizens and shall be weighed equally with other rights found by state courts to be fundamental.

A noted New York environmentalist, former New York Assemblyman Richard L. Brodsky, proposes this potential language for a constitutional amendment, which is adapted from an effort to have a similar amendment added to the United States Constitution:

“The natural resources of the state are the heritage of present and future generations. The right of each person to clean and healthful air and water, and to the protection of the other natural resources of the state, shall not be infringed upon by any person.”

Other States

Since the ’70s, a number of other states, including Illinois (1970), Pennsylvania (1971), Montana (1972), Massachusetts (1972), and Rhode Island (1978), have added environmental rights provisions to their state constitutions.

Our Existing Constitution

Article XIV, Section 1. The lands of the state, now owned or hereafter acquired, constituting the forest preserve as now fixed by law, shall be forever kept as wild forest lands. They shall not be leased, sold or exchanged, or be taken by any corporation, public or private, nor shall the timber thereon be sold, removed or destroyed.

  • 4. The policy of the state shall be to conserve and protect its natural resources and scenic beauty and encourage the development and improvement of its agricultural lands for the production of food and other agricultural products. The legislature, in implementing this policy, shall include adequate provision for the abatement of air and water pollution and of excessive and unnecessary noise, the protection of agricultural lands, wetlands and shorelines, and the development and regulation of water resources. The legislature shall further provide for the acquisition of lands and waters, including improvements thereon and any interest therein, outside the forest preserve counties, and the dedication of properties so acquired or now owned, which because of their natural beauty, wilderness character, or geological, ecological or historical significance, shall be preserved and administered for the use and enjoyment of the people. Properties so dedicated shall constitute the state nature and historical preserve and they shall not be taken or otherwise disposed of except by law enacted by two successive regular sessions of the legislature.

References 

In November 2008, the Science and Environmental Health Network and The International Human Rights Clinic at Harvard Law School issued this insightful document entitled An Environmental Right for Future Generations: Model State Constitutional Provisions & Model Statute.

 This article from July 1990 from the Montana Law Review analyzes Montana’s constitutional provision extending to its people the right to a clean and healthful environment.

The Environmental Bills of Rights included in the constitutions of 6 states are compared in this article by Art English and John J. Carroll.

The environmental conservation provisions enshrined in the constitutions of other nations around the world are studied in this article by Binod Prasad Sharma.

This presentation by Emile Gaillard discusses France’s Environmental Charter and its meaning.

Article XI of Hawaii’s State Constitution, entitled “Conservation, Control and Development of Resources” is very much worth reviewing to inform a discussion for New York.

To read more about state constitutions and environmental amendments, this pdf by Art English and John Carroll is very informative.

To learn more about a Constitutional Right to a Healthy Environment worldwide, read the above hyperlink written by David Boyd for Environment Magazine.