Environmental groups say there were some wins in the recently concluded New York state legislative session, including a new constitutional amendment guaranteeing the right to clean air and water. But business groups say the provision could lead to complications.
The state Senate and Assembly gave final passage to the constitutional amendment earlier this month, and New York voters will consider it on the November ballot.
Environmental groups said it would require businesses and state and local governments to make better decisions going forward when they need to approve projects that might potentially cause pollution.
“Voters are going to be asked a simple question,” said Peter Iwanowicz with Environmental Advocates. “Should we add to New York state’s bill of rights, the right to clean air, clean water and a healthful environment?”
Liz Moran with the New York Public Interest Research Group said the idea for the amendment came after the water crisis in Hoosick Falls in eastern New York, where the chemical PFOA, perfluorooctanoic acid, used to make nonstick cooking pots and pans, had seeped into drinking water from the former Saint-Gobain Performance Plastics plant.
Residents there had higher-than-normal rates of cancers associated with exposure to the chemical, and litigation is continuing.
"Had New York had something like this, would Saint-Gobain have been sited right on top of their drinking water source?” Moran said.
The state’s Business Council opposes the amendment, saying its broad language could lead to complications, including frivolous lawsuits against companies with facilities sited under existing environmental rules. The Council’s Ken Pokalsky said it would create an “incredible amount of uncertainty."
“The fact that it’s so broad, it says nothing about how it would be implemented, you could imagine it could be used to challenge all types of private-sector activities,” Pokalsky said. “And quite frankly, we could see this as having unintended consequences."
He said it could even lead to litigation against new clean energy solar or wind farms if a neighbor objects.
Pokalsky said New York already has numerous protective regulations, including the State Environmental Quality Review Act, as well as an environmental litigation unit in the state Attorney General’s Office. He also said there’s already a clause in the state constitution to guarantee protection and preservation of natural resources.
Iwanowicz said excess litigation hasn’t happened in other states, including Pennsylvania and Montana, where the right to clean air and water has been approved.
“It’s not retroactive,” Iwanowicz said.
Moran said existing environmental rules have not always been implemented fairly and can be subject to political pressure. She said a clear constitutional right can make it easier for regulatory agencies to do the right thing in the future.
“Will there be lawsuits? Probably. I think that’s how these sort of things end up getting defined,” said Moran, who added it is ultimately a “moral question.”
“Everyone understands that they have a right to clean air and water,” she said. “But unfortunately, there are so many things that are constantly jeopardizing this very basic human right.”
In addition to the right to clean air and water ballot question, the Legislature also approved a $3 billion environmental bond act to be considered by voters. That measure won’t be on the ballot until November 2022.
