The following appeared in the 2021 Sep/Oct issue of Adirondac Magazine
By Maya K. van Rossum
How can anyone be opposed to New Yorkers having a right to clean water and air? Most New Yorkers—in fact most U.S. residents—believe they already have this right and are shocked to learn that is not true. While it is an inalienable and indefeasible human right, it is not a right that can be enforced and protected, making it a right in name only.
New York could be the third state in the nation to secure truly enforceable environmental rights by adding a “Green Amendment” to the state’s constitutional Bill of Rights that guarantees “each person shall have a right to clean air, water, and a healthful environment.” New York voters will decide on this amendment on the November 2021 ballot (the question will most likely be on the back of the ballot along with other important questions of concern, so be sure to turn your ballot over so your voice can be heard).
Plenty are opposed to New Yorkers securing a constitutional right to clean water and air. They try to hide their opposition behind what they think are reasonable concerns, but in truth, there is no valid argument against the people of New York having a constitutional right to clean water and air, and a healthful environment, and to ensuring that these environmental rights are protected as powerfully as the rights to exercise free speech, protect their private property from unjust government taking, bear arms, and play bingo. That’s right: You have a constitutional right to play bingo but not to have clean water in the state of New York.
Industry opposition is starting to turn out in force against New Yorkers fighting for a constitutional Green Amendment. It is important to be armed with the truth in order to help educate our friends and neighbors so that come November, everyone is prepared to cast an informed vote.
It is fundamentally flawed to suggest that rights to a clean and healthy environment are any less appropriate for Bill of Rights protection than other inalienable rights such as the right to be free from unreasonable searches and seizures or to practice one’s religion. When we understand that the Bill of Rights is about protecting the people’s rights from government overreach and infringement, we recognize that environmental rights are no less appropriate for this highest protection than other fundamental rights. Given that we all depend upon clean water and air and a healthful environment to support every aspect of a healthy life, there is no right more appropriate for this highest constitutional protection.
Constitutionally recognizing environmental rights is not merely an aspirational goal. It will provide procedural and substantive mandates that will meaningfully advance environmental protection for all and be a substantial tool for environmental justice. Having a constitutional obligation to protect, and not infringe upon, environmental rights will ensure that our government prioritizes environmental protection in all decision-making and that it will focus on preventing pollution rather than simply permitting it at the end of the decision-making process.
Under our current system of laws in New York, BIPOC (Black, Indigenous, and other People of Color) and low-income communities are disproportionately affected, and as a result severely harmed, by environmental pollution and degradation. Air pollution from cars, trucks, and busses affects communities of color at much higher rates than White communities. This heightened exposure means a higher rate of asthma attacks, heart attacks, lung cancer, and more. One third of the public schools in New York City where children are predominantly Black, Hispanic, and Asian/Pacific Islander are in the top 10 percent nationwide for exposure to neurotoxicants such as lead, mercury, and cyanide, negatively affecting their health, development, and learning. A constitutional Green Amendment protecting environmental rights can help put a stop to this kind of systemic environmental racism.
With passage of the proposed amendment, all government officials at every level of government in the state, from town councils to the state legislature and the governor’s office, will be constitutionally bound to ensure that environmental rights are protected equitably across the state and across communities, regardless of race, ethnicity, wealth, or socioeconomic status. The disproportionate burdening of BIPOC and low-income communities with contamination of their water, air, soil, and environments must come to an end.
At the same time environmental pollution and degradation is having an impact on our healthy lives, it is also costing billions of dollars in avoidable costs. Fine particle and ozone pollution related to vehicle emissions not only cause more than two thousand New Yorkers to suffer premature deaths, but also cost the state $21 billion in health damages every single year. On the flip side, environmental protection is creating jobs and saving money. Investing $1.7 billion in protecting the watersheds that are a primary source of New York City’s drinking water, including investing in economic stimulus initiatives focused on sustainable economic development, New Yorkers have avoided the $10 billion cost of constructing a water filtration system as well as up to $100 million to operate it each year.
Constitutional environmental rights protection will enhance economic development in New York by encouraging innovative development, industry, and businesses that are sustainable and environmentally protective. It will also support jobs and economic growth while avoiding the economic, health, and safety harms that result from environmental pollution and degradation. Protecting environmental rights will also protect the property rights of those who would be harmed by migrating pollution.
In Pennsylvania and Montana, the two states that have constitutional Green Amendments that enshrine environmental rights in their state constitutions’ Bill of Rights, legislators, regulators, the state attorney general, the governor, town councils, and the courts have all successfully used the constitutional language to protect the environment while balancing multiple community interests, including property rights and economic development. In both states, economic development and energy creation continue to advance, even in the age of COVID-19, but are increasingly expected to do so in a way that is sustainable and respectful of the environmental rights of the people of those states and the obligation of government officials to protect the state’s natural resources in a way that benefits all people and generations.
Having served as an environmental activist and attorney for twenty-seven years, I have seen how our current system of laws is fundamentally failing us. In the Commonwealth of Pennsylvania, I have experienced how I and my organization, the Delaware Riverkeeper Network, were able to use the Green Amendment to strike down, as unconstitutional, a devastatingly pro-fracking law. As a result, communities across the state were protected from the environmental, health, quality of life, and economic consequences they would have otherwise suffered from nearly unchecked growth of the industry. No, we have not stopped fracking, which came to Pennsylvania before its amendment was alive and thriving. But with constitutional protection of environmental rights we are securing clean-up of long-ignored toxic sites, preventing the misappropriation of environmental protection funds, protecting the zoning authority of local municipalities, starting to protect communities from the devastating consequences of fracking, and providing a strong foundation for positive environmental, environmental justice, and community protection.
In November, New Yorkers will have the opportunity to secure the most powerful legal protection available in the United States of America for the rights of all people to a clean and healthy environment—a Bill of Rights Green Amendment that will ensure that each person, regardless of race, ethnicity, or socioeconomic status, will have the same protected rights to clean water, clean air, and a healthful environment.
Maya van Rossum has served as the Delaware Riverkeeper and leader of the Delaware Riverkeeper Network since 1994, is founder of the national Green Amendment Movement, and author of The Green Amendment, Securing Our Right to a Healthy Environment.