Lawmakers in New York passed a series of bills Tuesday aimed at protecting the state’s environment and the health of its residents, including the first step to a constitutional amendment that could have major legal implications for companies labeled as polluters.
The constitutional amendment, which wouldn’t become law until 2022 at the earliest, could open the door to litigation against companies who are accused of polluting the state’s environment in New York, said state Sen. David Carlucci, D-Rockland, who sponsored the measure.
“We’re adding 15 words to the state constitution to make it simple, to say, clean air, clean water, and a healthy environment have to come first,” Carlucci said. “This would give another tool to people that have been harmed by the creation of a project or by polluters that are not really considering the environment first.”
Lawmakers in both the state Senate and Assembly approved the measure Tuesday afternoon, which is one of three steps required for the proposal to become law.
The amendment, itself, is only one sentence long. It reads that “each person shall have a right to clean air and water, and a healthful environment” in New York. But, as Carlucci said, the measure will provide grounds for victims of pollution or contamination to bring litigation against those thought to be responsible.
“It gives us grounds to say, look, we’ve got to put the environment first,” Carlucci said. “There’s been so many times that profits and motives outweigh the cost to the environment. So, we want to make it plain and simple.”
Paul Napoli, who is of counsel at Napoli Shkolnik in Manhattan, said the amendment is a way for state lawmakers in New York to advance environmental protections while the federal government eases restrictions on polluting entities. Napoli practices several areas of law, including personal injury and environmental litigation.
“Where the federal government is falling behind, states must step up and promote the health of our environment. We have taken these rights for granted, and it is a sad day that such inalienable rights must now be codified in an amendment in the New York State constitution,” Napoli said. “Enshrining these words will guarantee New Yorkers their fundamental right to a healthy and clean environment for generations to come.”
The amendment was also considered last year, and passed the Assembly, but stalled in the Republican-controlled Senate. Democrats took the majority in both chambers this year for the first time in nearly a decade, paving the way for initial approval by the Legislature.
The measure sailed through the Assembly again Tuesday, but it faced opposition from Assemblyman Andrew Goodell, R-Chautauqua, an attorney from Jamestown, New York. Goodell questioned whether the amendment could be too broad for businesses seeking to avoid litigation because it does not strictly define what’s considered “clean” or “healthful.”
“The flip side of language that has no definition … is that it doesn’t have any detail,” Goodell said.
He also argued that the amendment could result in businesses moving out of New York to states without such a standard to avoid legal trouble, and claimed that’s been the case in other states with similar laws. Assemblyman Steve Englebright, D-Suffolk, said he didn’t expect that to be the case.
“Any new law will have a period of time when it is going to be tested,” Englebright said. “We have not observed however that any of those tests have resulted in any dislocation of business productivity or the well-being of business, or the environment.”
Carlucci said the purpose of the bill was partly to give individuals a tool to hold businesses accountable when they’re accused of acting in a way that would contradict the language of the amendment. He said entities have gotten away with pollution in the past and that lawmakers were seeking a way to prevent that in the future.
“We’ve seen too many ways that companies have been able to get projects through, pollute the environment, and are not held accountable,” Carlucci said. “We want to end that practice and we want to make sure we’re safeguarding our most precious asset, which is our air and our water.”
The Lawsuit Reform Alliance of New York, an advocacy group that seeks to cut down on litigation, warned that the amendment could lead to a flood of lawsuits that would overwhelm the state’s courts. That litigation could be targeted at local governments and municipalities, who would have to front a legal defense, said LRANY Executive Director Tom Stebbins.
“Similar legislation has been rejected in other states due to the burden increased litigation will place on municipalities and government entities. Moreover, costly lawsuits filed against environmental permit holders will delay critical infrastructure projects including clean energy and climate resilience projects,” Stebbins said. “There are ways to provide a clean environment to New Yorkers. This is not one of them.”
Approval from lawmakers Tuesday was only the first step to the proposal becoming law. An amendment to the state constitution has to be approved twice by lawmakers then be sent to voters for approval. The earliest that could happen is 2021.
The legislation was part of a package of bills passed by lawmakers Tuesday related to the environment and public health, including proposals to eliminate toys with toxic chemicals and raise water-efficiency standards for plumbing fixtures.