The following article, written by Alysia LeComte, 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.
On March 29, 2024, scholars, practitioners, students, and policymakers convened at the Climate Constitutionalism conference at Pace University to consider the role of constitutions in achieving mitigation necessary to avoid climate catastrophe. What are constitutional obstacles to and opportunities for climate mitigation? Over lunch, conference attendees participated in roundtable discussions to address constitutional obstacles and opportunities for climate mitigation. Student reporter Alysia LeComte prepared this edited summary of the roundtable discussion featuring panelist Professor Rebecca Bratspies, the 2024 Visiting Professor of Environmental Law and Haub Visiting Scholar and Director/Founder of CUER, CUNY School of Law, and invited discussants Martin Lockman and Vincent Nolette, Climate Law Fellows at the Sabin Center for Climate Change Law at Columbia University.
During the first panel of the day, State Constitutions & Climate Change, Professor Bratspies spoke about Article I Section 19 of the New York Constitution, which reads: “Each person shall have a right to clean air and water, and a healthful environment.” Our roundtable discussion later that day was guided by a series of questions about this piece of legislation, colloquially dubbed the Green Amendment. This led to a rich discussion of the laws and issues that laid the groundwork for the Green Amendment and whether the landscape of New York’s climate mitigation and environmental justice efforts are changing in light of it. Finally, the panel contemplated possible future outcomes that might result from the Green Amendment.
How We Got Here
What was the motivation behind passing the Green Amendment? Participants in our roundtable discussion suggested two major reasons that brought the amendment from its first proposal to the legislature in 2017, through a majority vote by the residents of the state in November 2021, to incorporation in the state’s constitution in 2022. First, there was an apparent inability of the existing environmental laws to adequately respond to environmental problems. For example, residents of the Village of Hoosick Falls, New York, discovered in 2014 that Perfluorooctanoic acid (PFOA) had contaminated the public drinking water supply, however, they were unable to find adequate recourse through the state’s existing environmental laws. Only after the Department of Environmental Conservation (DEC) issued an emergency regulation identifying PFOA as hazardous in 2016 were the residents able to take legal action against local manufacturing sites that used PFOA. Second, the environmental laws in place were woefully inadequate in preventing environmental injustice. For example, in the late 1990s, New York shut down the Fresh Kills Landfill in Staten Island in response to repeated and serious environmental law violations. Meanwhile, no legal action was taken to prevent the increased siting of waste transfer stations in several already-overburdened communities in Brooklyn, the Bronx, and Queens which led these communities to be saddled with handling 75% of the city’s waste and associated pollution.
Prior to the Green Amendment’s arrival, two key environmental acts served as the primary vehicles for climate mitigation in New York. The New York State Environmental Quality Review Act (SEQRA), initially passed in 1975, requires state and local government agencies to consider the environmental impacts of certain projects and actions before granting permits or licenses. This act has evolved over the many years since its inception and requires applicants to complete several procedural steps, beginning with an Environmental Assessment Form, and potentially leading to a lengthy and detailed Environmental Impact Statement (EIS) and a public hearing. This process can be beneficial to protecting the environment and preventing environmental injustice, however, there are several serious drawbacks. The SEQRA process can be very time-consuming and can be used to slow down projects that would ultimately provide social or environmental benefits to New Yorkers. In some cases, applicants treat the procedure as a pro forma process, meaning, rather than producing a carefully considered EIS they simply seek the rubber stamp from the government agency overseeing their application. Additionally, when an applicant successfully completes the SEQRA process and is granted a permit, any attempt to bring a cause of action against the government agency that granted the permit is seldom successful. New York courts give great deference to the decision-making authority of the granting agencies.
The second environmental act that served as a primary vehicle for climate mitigation in New York was the Climate Leadership and Community Protection Act (CLCPA). This act was signed into law in July 2019 and set statewide goals for renewable energy generation, lowering emissions, and benefitting disadvantaged communities. This act made it clear that transitioning to clean energy and prioritizing disadvantaged communities are now the state policy, which is a promising step in the right direction for both climate action and environmental justice. Although the state has made its general message clear, methods of action have not been properly identified. While the state takes meaningful steps towards building renewable energy infrastructure, fossil-fuel-burning power plants that are contrary to their climate action goals, such as the Harlem River Yards Plant, continue to receive permit renewals from the DEC. The CLCPA also “[r]equires the State to invest or direct resources in a manner designed to ensure that disadvantaged communities receive at least 35 percent, with the goal of at least 40 percent, of overall benefits of spending.” Despite this, the act fails to define what those benefits look like or how they will be distributed to disadvantaged communities. This vague and non-committal requirement will be difficult to enforce, which undercuts the environmental justice goal of the CLCPA.
How We’re Doing
Is the Green Amendment aspirational or substantive? Is it merely hopeful messaging, or does it affect the rights and behaviors of New Yorkers in a meaningful way? In an attempt to answer these questions, our roundtable group discussed several climate and environmental justice actions that have taken place during the gestation of the Green Amendment and since it became effective. 
New York City’s Waste Equity Law provides a promising early signal that the city is taking environmental justice more seriously and could influence how the state at large handles waste management in light of the Green Amendment. This plan, which went into effect in 2018, addresses the exceedingly inequitable burden of waste management that has been put on several overburdened communities (mentioned above) by making communities responsible for handling their own waste. As a result, a state-of-the-art waste transfer station was built on the Upper East Side of Manhattan. Not only did this mean an environmental justice community was spared the added burden of another waste transfer station cited in its midst, but the 91st Street transfer station could serve as a model for future transfer station builds. Additionally, when this wealthy, predominantly white community became responsible for handling its own waste, the community dramatically reduced the amount of waste it was generating. It appears that the Waste Equity Plan in New York City has affected the behaviors of Upper East Side residents, when required to manage the downsides of their conduct, their conduct changed to reduce those downsides.
The Renewable Ravenswood redevelopment plan provides another indication that the attitude towards environmental justice communities and climate mitigation is shifting in a positive way. For decades, the Ravenswood Generating Station has been burdening the surrounding Ravenswood neighborhood and the nearby Queensbridge public housing development, the largest public housing complex in the country, with harmful pollution. This power station is New York City’s largest and has been emitting millions of tons of carbon each year, as well as releasing hazardous amounts of ammonia, mercury, benzene, and lead into the environment. Unsurprisingly, average rates of child hospitalization due to asthma in Ravenswood and Queensbridge are more than double that of the overall area of Astoria, and more than triple that of neighborhoods further south and east of the power station. Today, with the support of the community, plans are underway to redevelop Ravenswood as a clean energy hub connected to renewable energy sources and providing battery storage. Not only will this change help meet CLCPA’s renewable energy goal, but it will also provide tangible benefits to an environmental justice community.
The Cumulative Impacts Law, signed into law at the end of 2022, represents a statewide signal that New York intends to take the rights of environmental justice communities seriously. Once this law goes into effect in 2025, the DEC will no longer grant approval or renewal of permits for projects or actions that increase disproportionate or inequitable pollution burdens on disadvantaged communities. While decisions to grant or deny permits remain in the hands of the DEC, and there are no guarantees as to how the decision-makers will use their discretion, the message is clear. Environmental justice must be taken into consideration in the permitting process. 
Certainly, these examples from New York City and the state at large can be seen as green flags that show New York is beginning to approach climate mitigation and environmental justice efforts in a novel and promising way, perhaps due to the influence of the Green Amendment. However, there are still many examples to suggest New York has not given up on the old ways of clinging to fossil fuels and burdening disadvantaged communities. Government agencies continue to grant permits and renewals to fossil-fuel-burning infrastructure, such as the Harlem River Yards plant. Energy infrastructure continues to be sited in overburdened communities, under the reasoning that transmission lines have already been laid to these locations. Disadvantaged communities continue to struggle to have their voices heard while communities of wealth and privilege continue to use their money and political power to be heard. In a recent public hearing in Queens, organizers failed to recognize that a significant portion of the population impacted by the hearing’s subject matter were Bangladeshi and failed to provide a translator so these community members could be heard. Instead, elders of the Bangladeshi community had high schoolers who spoke both English and Bengali translating for them. This lack of foresight by hearing organizers is both insulting to the community and ineffective for gathering community input. On the other hand, when New York City’s Waste Equity Law was put into place, members of the wealthy Upper East Side community organized a protest that garnered much attention. Communities of wealth and privilege also have the resources to have their voices heard through litigation, a costly tool that is not readily available to disadvantaged communities. When state officials determined a small plot of land on the shoreline in East Hampton, Long Island would be the landing site for an offshore wind energy transmission line, residents of the wealthy enclave of Wainscott hired lawyers and brought legal action to stop the renewable energy infrastructure (a small building on less than three acres) from being cited in their neighborhood.
Where We’re Going
Now that the state’s constitution has been amended, what comes next? Our roundtable group discussed how the Green Amendment could potentially impact New York’s future, and while some possibilities are discouraging, others provide hope. There is certainly a future for the state and the country, where the climate crisis becomes so pressing that mitigation action is taken to curb the worst of the effects and create a relatively stable and livable environment at large. This future, however, will be as inequitable and unjust as our past and present if the state and the country do not approach climate action differently. What might different look like? It could mean a rethinking of capitalism and our value-extraction-driven economy, or perhaps scrapping old and ineffectual environmental laws and replacing them with novel laws that seek to address the needs of our present and our no-analog future.
While our roundtable discussion group took some time to consider these large-scale changes, we returned our attention to how the Green Amendment in particular could affect change in New York. If the people of New York embrace the Green Amendment as a substantive right for both individuals and communities, this could lead to a shift in the public consciousness that influences how government agencies make SEQRA decisions, pursue the CLCPA goals, and enforce the Cumulative Impacts Law. To effectively embrace this right, two byproducts of the “old ways” must be deliberately left behind. First, the habit of accepting polluting infrastructure that is already in place and only questioning or challenging proposed changes should be retired. New Yorkers, empowered by the Green Amendment, can question existing polluting infrastructure and ask whether it interferes with their rights to clean air, water, and a healthful environment. Second, the tradition of state and local officials making policy decisions that impact a community without seeking that community’s input in a purposeful and meaningful way should no longer be practiced. The rights of the Green Amendment belong to each person in the state, and while each person should feel emboldened to assert their rights, government officials should also recognize these rights and proactively involve community members early in the decision-making process. If New York can overcome these hurdles, and begin to approach climate mitigation through the lens of the Green Amendment, a cleaner and healthier home could be in store for all New Yorkers.