On Nov. 2, 2021, New York voters approved an amendment to the New York State Constitution’s Bill of Rights providing that: “Each person shall have the right to clean air and water, and to a healthful environment.” The right to a healthy environment was thereby, for the first time, expressly cloaked in constitutional protection. This new provision has been referred to colloquially as the “Green Amendment.”
As we have written elsewhere, we believe the Green Amendment (i) will likely be held to be self-executing and requires no further legislative action to be effective, and (ii) was placed in our state’s bill of rights by the legislature and body politic so that it will be understood to be a “fundamental right.” But a critical question remains: What is the constitutional ‘standard of review’ the courts should use to determine the constitutionality of a government action that allegedly violates the Green Amendment? The standard of review applied by the courts will, more than any other factor, decide the long-term importance of the amendment.
