The following article, written by student reporters, is part of a series of reflections from the Climate Constitutionalism Conference, hosted by Elisabeth Haub School of Law at Pace University and Widener University Delaware Law School, and co-chaired by Distinguished Professor Katy Kuh (Haub Law) and Distinguished Professor James R. May (Delaware Law), on March 29, 2024. The event brought together legal scholars, activists, and students for a series of discussions on major environmental constitutional issues. Visit the GreenLaw homepage for links to other articles in the series. 

Student reporter Julie Bazile prepared this edited summary of the roundtable discussion featuring panelist Rebecca Bratspies, 2024 Visiting Professor of Environmental Law at Haub Law, Professor at CUNY School of Law, and founding director of the Center for Urban Environmental Reform.  The discussion also featured invited discussants Vincent Nolette and Martin Lockman, Fellows at the Sabin Center for Climate Change Law.

The Potential of the New Green Amendment

The Earth is in crisis. We find ourselves grappling with an onslaught of catastrophes, each one hitting before we’ve even had a chance to recover from the last. Take 2023, a year filled with unprecedented climate events. Canada was engulfed by the largest wildfire in its recorded history, New York City’s infrastructure crumbled under the weight of a historic rainstorm — again, and across the globe, land areas sweltered at temperatures that soared well above the norm.

Image Credit: People wearing masks while waiting for the tramway to Roosevelt Island in New York City on June 7. Eduardo Munoz Alvarez/Getty Images.

Also in 2023, companies that violated and continue to violate the land, as to extract, burn, and sell CO2 producing fossil fuels, yielded record profits. To protect these profits, many of these companies have lobbied politicians, and blatantly lied to the public about climate change and its harms, sabotaging policies to reduce greenhouse gasses. The U.S. government appears gridlocked, with Congress unable to summon the political capacity to enact new limits on greenhouse gasses and courts remain comfortable acting below the bare minimum, failing to aggressively apply to the existing Clean Air Act to require emission reductions. Some are looking to constitutions as a possible source of authority to address this climate policy gap.

This climate policy gap can be paralleled to the policy gap that resulted in the proliferation of PFAS, the “forever chemical”. PFAS are man-made water proofing chemicals found nearly everywhere: your cookware, your clothes, even in your body. Coined “forever chemicals” because they are hard to break down, moving quickly and downwards towards ground water, and even at extremely low levels can cause harm to humans. PFAS contaminate public drinking water systems serving 19 million people in 49 states. Up to 110 million Americans could have PFAS-contaminated drinking water and the effect is even more detrimental in communities with the systematically impoverished global majority. Just like with carbon emissions, corporations knew about the negative externalities of PFAS for years too and selfishly said nothing. And so, the story goes (again): greedy corporations, unchecked for years, inflict widespread harm.

The Biden-Harris administration designated two PFAS compounds, perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), as “hazardous substances” under the federal program, Comprehensive Environmental Response, Compensation, and Liability Act. In response to the growing salience of the PFAS issue, the Act was intended by the administration to be a mechanism to require responsible corporations to clean up PFAS contamination. Emboldened by the administrations’ move, hundreds of plaintiffs have sued PFAS manufacturers, alleging that the companies contaminated their water and soil. Following the Biden-Harris move, major PFAS polluter DuPont agreed to a $10.3 billion negotiated penalty in TSCA fines for withholding information about PFAS effects.

The administrative action on PFAS parallels New York Green Amendment’s integral potential— to embolden and protect. For those who don’t know, the New York Green Amendment read in its entirety that “[e]ach person shall have a right to clean air and water, and a healthful environment” and is now enshrined as Article I, section 19 of the New York State Constitution. The Green Amendment, like most initiatives, was informed by an aggregate of significant events. Some triggers included the discovery that much drinking water in New York is contaminated with PFAS and the game changing climate activism demonstrated in 2018 which birthed mainstream influential activists such as Xiye Bastida and Greta Thunberg.

Image Credit: Demonstrators from several environmental groups attend a youth-led climate strike near City Hall in New York City on December 6, 2019. Scott Heins/Getty Images.

The public’s resounding call to climate action prompted the NYS legislature to consider the amendment in both houses and in a notable display of bipartisanship, over 70% of New York voters recognized its significance and approved its inclusion in the Constitution. Since its conception, the Green Amendment has represented more than just a right; it embodies a beacon of hope. It aims to serve as a Lego block in an effort toward sustainability and climate change mitigation and resilience.

Ideally, the environmental right would function both offensively and defensively. In 2021, Queen’s local government entertained the idea of granting permits for a fossil fuel-burning power plant in Astoria. It was only through the outcry of the community, and the advocacy of organizations like EarthJustice, that the DEC refused a requisite permit. Community intervention prevented the issuance of permits that would have (1) contradicted the mandates of the Climate Leadership and Community Protection Act (CLCPA) and (2) burdened a community already plagued by systemic environmental injustices. Here, the good guys won— but imagine an environment where the local government would never have even dared consider the siting of the Astoria plant in the first place. This is the hope of environmentalists that the Green Amendment could allow for an offensive approach to preventing polluting industrial practices.

On the other hand, if polluters remain undeterred by the Green Amendment the right would transform into a defense tool. It is well understood that Black and brown low-income communities often internalize a disproportionate amount of negative environmental externalities. Usually, environmental justice communities are left to ameliorate their harms in isolation. Their lack of climate change resilience is derivative of a systemic lack of political agency, legal protection, and representation. Systematically vulnerable communities have been categorized as the path of least resistance for polluters. Polluters purposefully target these vulnerable communities to perpetuate further environmental injustice. The Amendment, used as a defense mechanism could force the harm perpetrators to internalize the negative externalities of their unsustainable business practices.

If people are to manage the downsides of their conduct, it encourages change. In New York, white affluent communities have historically under burdened from environmental harm by over burdening systematically low-income communities. There was a time where systematically low-income communities were taking on a whopping 75% of the city’s waste. Eventually, in response to community uproar and environmental justice activism, the State legislature opened a state-of-the-art waste facility in the Upper East Side. After the plant facility opened in the affluent neighborhood, the waste production went down. This example illustrates how equity can create upward pressure that improves environmental outcomes.

The Detrimental Effect of DEI Gaps

The value of the Green Amendment will depend in part on whether it can increase the inclusivity of the voices involved in the processes that shape waste and other systems. When green initiatives are almost homogeneously occupied by folks who are middle class, white, cisgendered, heterosexual, and able-bodied, they tend to overlook the diverse perspectives and experiences of communities marginalized by design. This lack of representation easily results in, albeit at times unintended, negative consequences that disproportionately affect these real communities. Without diverse perspectives in “the room where it happens”, there is a risk of overlooking the needs and concerns of the marginalized global majority and their sub-groups. These gaps in protection not only lead to policies and actions that fail to address systemic inequalities and or exacerbate them, but outcomes are also ineffective from an environmental perspective.

For example, in some states, the sanitation departments have partnered with private companies to collect recyclables. These companies collect trashed recyclables and are paid for it. Commentators have dubbed the relationship as a net positive relationship. However, the “net positive” relationship overlooks the impact on informal trash collectors, often marginalized members of society. An untold number of undocumented immigrants, low-income, and homeless people in America informally rely on trash collection as a sole means of providing for themselves and their families. Where is their cut of this supposedly “net positive” deal? Usually, policymakers do not think to actively include the poor homeless trash collectors in their design process. This oversight worsens economic and societal challenges and perpetuates cycles of poverty.

By recognizing that all New Yorkers possess an individual environmental right, the Green Amendment has powerful potential. In the context of climate change, however, there is a tension between inclusion and climate change mitigation. Inclusion requires the equitable incorporation of diverse perspectives from diverse individuals while actively decentering, though not excluding, white, wealthy, heterosexual, cis-gendered, and able-bodied voices. The current status quo is the opposite. Deconstructing this reality is an inherently lengthy process and has hardly ever been achieved in practice following European colonization. While simultaneously, there grows a time sensitive need to rapidly deploy new clean energy infrastructure increases as CO2 threatens to cause 14.5 million deaths by 2050.

There are many reasons to center inclusive justice as a first principle.  The effectiveness of environmental policy has been seriously undermined by racial and class bias. Prioritizing diverse representation, unlearning biases, and addressing racism within the environmental community must precede acting on green initiatives. Initiatives are manifestations ideologies and are therefore susceptible to biased and harmful. Examples of susceptible initiatives include developing renewable energy projects, green infrastructure, and environmental laws. The climate crisis grows more detrimental by the second. Therefore, modern environmentalists prioritize speed and innovation. Move fast and fix things— but too often it is marginalized global majority communities that are broken and sacrificed in the name of innovation. As observed in the trash collection case study, developers’ racism and classism biases may skew the impact of the initiative and harm marginalized communities as a result. Climate change innovation cannot not be made at the expense of communities already suffering from the disproportionate impacts of climate change and climate injustice.

Yet, even if the risk of negatively skewed impact on marginalized groups needs prioritization, halting climate solution actions poses a significant global risk. The Intergovernmental Panel on Climate Change (IPCC) has issued a final warning that the world is on the brink of irreversible damage from rising greenhouse gas emissions. Every couple of months, some new, unprecedented event illustrates the sign of the times — COVID-19, the endangerment of more than a third of the Earth’s plant and animal species now facing extinction by 2050, and recently scientists have found that, as a result of the melting ice caps, the Earth’s rotation is slowing down and altering time! In response, environmentalists have been pioneering advancements in renewable energy, green infrastructure, and law. The widespread adoption of these innovations could mitigate the effects of climate change. It would be harmful to delay the potential benefits of these innovations.

Ideally, climate solution action could be made in tandem with efforts within the environmentalist community to decolonize the field, foster inclusivity, and develop more environmentally and socially sustainable designs. Once more environmentally and socially sustainable designs advance, they would swap out the old ways like an update. However, this ideal seems unrealistic as history suggests the likelihood of a detrimental lack of follow-through, particularly at the expense of marginalized communities. Then again, a rigorously developed Green Amendment would alleviate this impasse and force follow through. That way, environmentalist get their climate amelioration while environmental and social justice environmentalist get their environmental justice— an aspirational win-win.

Bear in mind, the Green Amendment will only be as effective as we believe and demand it can be. At this stage of its implementation, with its broad language yet unlimited by judicial interpretation, the Green Amendment could be applied expansively and creatively. To ensure its optimal efficiency, the status quo must be deconstructed, and diverse perspectives must inform its interpretation and application.  The law does not lead, it follows.

Featured Image Credit (Banner): Climate justice demonstration. Steve Sanchez/Pacific Press/LightRocket/Getty Images.