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Right To Clean Air, Or A Mess In The Making?

New York voters are being asked during this election to enshrine the right to clean air, clean water and a healthful environment in the state constitution.

Proposal No. 2 on the ballot would place that right into the state’s Bill of Rights in Article 1 of New York’s constitution.

Those supporting the constitutional amendment say it will require state and local governments and business to consider the environment and citizens’ relationship to the environment at all levels of decision making as well as creating a way to combat environmental racism and inequities communities of color and low-income communities face from being exposed to pollution and other environment-harming pollution more than other areas of the state.

Almost all states (43 out of 50) have a form of environmental values stated in their constitutions, but only Montana and Pennsylvania have protected environmental values as an unchallengable right in the same vein as the right to free speech or freedom of religion, according to the League of Women Voters.

“Today we vote on a simple but powerful amendment to our state Constitution,” said Assemblywoman Jo Anne Simon, D-Brooklyn, on the Assembly floor earlier this year. “The amendment very simply says that each person shall have a right to clean air and water and a healthy environment, a healthful environment. Quite simply, there can be no more fundamental right than the right to breathe free of environmental pollutants and to drink, cook with, bathe and/or swim in clean water. Whatever could be the objection to clean air and water. We’ve heard several, including an assumption of a private right of action for environmental damage. I can assure my colleagues that this Constitutional Amendment does not do that. I know because I have carried a bill to provide for a private right of action for environmental damage for several years.”

One of the things that concerns those opposing the amendment are things like Simon’s legislation — which has not passed the legislature — for a private right of action for environmental damage. There are concerns from many Republicans and farmers that the amendment’s broad language could lead to complications, including frivolous lawsuits against companies that have thus far complied with existing environmental rules.

It would ultimately be up to the courts to decide and apply the amendment and to the state Legislature and state departments to devise enforcement, definitions, duties and obligations to meet the constitutional standard. That leads to concerns of unintended consequences from passing the amendment and it turning into something different than the state’s voters intended. Finally, courts could require cities and counties to make changes to facilities, with the cost likely falling on local taxpayers.

“I truly want to support this bill, but there needs to be some carve-outs because what I’m afraid of is with our agricultural production here in New York State, everything that go — that we’re up against, we’re going to, again, stall agriculture production,” said Assemblyman Brian Mantkelow, R-Lyons, on the Assembly floor. “Let us do what we do well, let the farmers do this. We don’t always need government to fix things. Sometimes we fix our own things, and we can do a really good job at it. So, please, allow our farmers to do this, allow them to grow, and we can make a better New York. I’m sorry I cannot support this bill tonight. If we had some carve-outs, I could absolutely do that, but until we do that, I’m going to be in the negative.”

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