For businesses, Green Amendment is double green

In April 2019 and again in early 2021, the New York State Assembly and the New York State Senate passed legislation to place a constitutional amendment measure, the Green Amendment, on the ballot in November 2021. Voters will be asked whether to amend the New York State Constitution to provide in Section 19, Article I: “Environmental rights. Each person shall have a right to clean air and water, and a healthful environment.”

As occupants of the state, New York businesses will benefit from passage of the amendment. The Green Amendment could benefit businesses by reducing litigation risk, improving the overall resilience and health of communities and fostering conditions that support the development of forward-looking green industries in New York. Additionally, businesses who advocate for adoption of the Green Amendment can, in doing so, communicate their commitment to a sustainable future to their customers, employees and local communities. For businesses, the Green Amendment is double green ”“ good for the environment and good for the bottom line.

The Green Amendment can reduce litigation risk by preventing situations where businesses inadvertently cause or contribute to environmental damages that might later become the basis for an action seeking damages under existing tort, nuisance or other law because existing statutes and regulations are not adequately protective. Consistent with the interpretation of similar constitutional provisions in New York, the Green Amendment would likely not be enforceable directly against private parties; it is instead a limitation on government action.

Protecting environmental rights from government action that results in a taking of a community”™s clean water and air and/or healthful environments will reorient policymakers to focus on avoiding environmental harms before they occur ””and before businesses find themselves struggling ex post to defend lawsuits seeking damages for those harms. This focus on prevention of harm will encourage legislators and regulators to adopt protective laws and regulations and to work proactively on permitting that ensures a clean and healthy environment.

Experience in others states that already recognize environmental rights in their constitutions further indicates that little new litigation occurs simply because of the adoption of constitutional environmental rights. According to Green Amendments for the Generations, the national leader on advancing Green Amendments in states across the nation, the number of cases including constitutional environmental rights claims in Pennsylvania is typically only between three and nine cases a year, and in Montana the number is on the order of three cases a year.

This does not signal that constitutional environmental rights in these states have not proved beneficial. On the contrary, it reflects the fact that while constitutional environmental rights are sometimes enforced through litigation, they also permeate and influence decisions proactively at many early junctures in the development and implementation of environmental policy and decision making, thereby avoiding litigation. Moreover, claims alleging violation of a constitutional environmental right most often accompany claims brought under existing statutes and regulations ”” claims that would have been brought anyway but are now better informed by the constitutional obligation to protect environmental rights.

By strengthening efforts to ensure a clean and healthy environment, the Green Amendment will also support businesses in myriad direct and indirect ways. Some industries benefit in direct ways from a protected environment, such as those dependent on ecotourism. The availability of clean and plentiful water is essential for successful agriculture. Industries that rely on clean water in their operations, such as manufacturers and pharmaceutical companies, can see significant cost savings if water does not need extensive treatment before use.

Property values are enhanced by healthy green spaces. And clean air, water and a healthful environment promote the health and well-being of workers and the communities where they live. By proactively supporting protection, the Green Amendment will help avoid the costly harms of environmental degradation, including rising health care costs and lost worker days. In this pandemic moment, we can easily recognize that businesses depend upon and benefit from being part of healthy communities.

The business community should critically analyze exhortations to oppose the Green Amendment that imagine a flood of costly litigation and claim false assertions that strong environmental laws are bad for business. Understanding business and the environment to be in a zero-sum competition is both short-sighted and woefully outdated. We all thrive ”“ businesses included ”“ when our political system, laws and regulations work effectively to protect our lives and livelihoods.

Katrina Fischer Kuh is the Haub Distinguished Professor of Law at the Elisabeth Haub School of Law at Pace University where she teaches Administrative Law, Climate Change Law, Environmental Law Survey and Torts.  She has published widely on subjects related to environmental law and chaired the New York State Bar Association Task Force on the Environmental Aspects of the New York State Constitution”‹.

Maya K. Van Rossum, Pace Law ”™92, is the founder of Green Amendments for the Generations a grassroots nonprofit organization inspiring a nationwide movement to secure constitutional protection of environmental rights. Through the work of van Rossum and Green Amendments for the Generations, constitutional amendments have been proposed in 11 states to date. She is the author of The Green Amendment: Securing Our Rights to a Healthy Environment and the original organizer of the Green Amendment movement. van Rossum also holds the position of Delaware Riverkeeper, leading the watershed-based advocacy organization the Delaware Riverkeeper Network.