Bucki and Flynn on Environmental Rights Amendment and Litigation

Vagueness of N.Y.’s environmental rights amendment raises concerns about litigation

A new amendment to the state constitution giving people the “right to clean air and water and a healthful environment” has some experts expecting litigation in the new year.

Voters passed the amendment Nov. 2, though election results still need to be certified.

“It’s hard to know what the meaning of this will be,” said Phillips Lytle partner Craig Bucki. “We’re going to have to see how the courts will construe this.”

A “yes” vote for New York Proposal 2, the Environmental Rights Amendment supported adding a right to clean water, clean air and a healthful environment to the New York Constitution’s Bill of Rights.

Bucki, a leader of the firm’s government operations practice, said that of course voters agreed with that right, but the vague terminology of the amendment could create opportunities for lawsuits. For example, he said, what if a neighbor doesn’t like that a farmer next door uses pesticides?

“Is that violating that person’s right to clean air and water and environmental health?” Bucki said.

Using similar reasoning, it could potentially impact any company or manufacturer with regulated waste deposits.

David Flynn, also a partner at Phillips Lytle who leads the firm’s environmental law practice, said he doesn’t believe there will be significant short-term changes from the amendment, but that it could “become a foundational element for more significant and more aggressive environmental regulations as we head out into the future.”

About 61% of voters were in favor of the amendment Tuesday.

Regardless of how the courts interpret the language during litigation, Flynn said the amendment will likely “embolden regulators, certain elected representatives, certain groups in the community and across the state to continue chart a more aggressive stance and use this as some sort of endorsement by the voters of the state, that this should be a font-and-center, keystone issue for the state moving forward.”

An early opportunity for litigation involving this amendment, Flynn said, will likely be when a permit is granted or denied a business due to environmental implications.

“If someone gets a permit that someone else views negatively, they might challenge the granting of that permit under this constitutional provision,” he said. “Or alternatively, if someone is denied a permit and the basis or reasoning is tied back to this provision of the state constitution, they may challenge that as being inappropriate or that it was applied inappropriately.”

Flynn added that other states have similar environmental amendments in their constitutions and it hasn’t created “a plethora of litigation.”

He said the state’s Climate Leadership and Community Protection Act, passed in 2019, should likely be a bigger concern for manufacturers and businesses, as it was “nation-leading in terms of requiring very aggressive goals for carbon emissions and electrification of the energy system in New York State.”