This op-ed was originally published by Bloomberg Law.
In November 2021, over 70% of New Yorkers voted to amend the state's constitution to explicitly protect New Yorkers' fundamental right to clean air, clean water, and a healthful environment. New York thus joins Montana and Pennsylvania in enshrining robust constitutional environmental rights in the state constitution.
The first cases making claims under the new constitutional provision are now being filed, and states contemplating the adoption of environmental rights will be closely watching how courts define and apply New York's amendment. Those states include New Mexico, Maine, and Maryland.
Unsurprisingly, corporate defendants argue that the new right doesn't change anything. They claim that the environmental right is not self-executing, i.e., that the constitutional right provides no new protections and is instead defined and limited by pre-existing environmental laws. They could not be more wrong and courts in New York should be quick to affirm that the right is self-executing.
New Yorkers voted to add environmental rights to the state constitution because they knew that existing environmental laws did not do enough to protect people, especially those living in disadvantaged communities. Two primary environmental problems prompted explicit constitutional recognition of environmental rights: gaps in the existing regulatory scheme, and environmental injustice.