How NYSBA Helped Secure the Right to Clean Air and Water for New Yorkers

How NYSBA Helped Secure the Right to Clean Air and Water for New Yorkers

11.8.2021

By David Howard King

When he was president of NYSBA in 2015, David Miranda formed a committee on the state constitution in anticipation of  a public question on whether New York should hold a constitutional convention. NYSBA backed the idea but several prominent environmental groups opposed it, fearing a rollback of environmental protections in the wake of  President Donald Trump’s election.

In 2017, voters overwhelming decided against holding the constitutional convention, leaving the question of whether the committee’s two years of work and five reports were all for nothing. Fast forward to 2021 and NYSBA finally has the answer it was hoping to hear.

“What we did had a dual purpose—to address the convention question, and then assuming it didn’t happen or wasn’t successful, the committee would have a means to address these questions going forward through referendum,” Miranda explained.

Henry M. Greenberg, who chaired the committee before becoming NYSBA president, elaborated.

“We looked back at the history of our constitution and saw that when railroad barons were burning down forests to build their tracks, we did a forever wild clause to protect the Adirondacks,” said Greenberg. “In the 1960s when the environmental movement gained popularity with Rachel Carson and Lake Eerie was bursting into flames, they passed an amendment called the Conservation Bill of Rights. So, we thought, we can do something in light of climate change.”

Expanding on the committee’s work, NYSBA’s Environmental & Energy Law Section studied the issue and recommended that the New York Constitution “clearly articulate and provide a means for citizens to insist upon respect for core environmental principles through the addition of an environmental right.”

“As we confront existential questions of sustainability and the human impact on life systems, there is value in stating a right understood to exist—that New Yorkers have a right to an environment capable of supporting and sustaining life,” the committee said.

Shortly after voters rejected the constitutional amendment, environmental groups such as Environmental Advocates of New York began looking for ways to shore up New York’s environmental protections against President Donald Trump’s deregulation efforts. They looked at pollution issues in upstate New York such as the water contamination in Hoosick Falls and air pollution in Albany’s poorer neighborhoods and thought about how a constitutional amendment might help abate them and prevent environmental hazards going forward.

Kate Kurera, deputy director of Environmental Advocates of New York, says that it was a combination of the NYSBA report and interest in the Assembly’s Committee on Environmental Conservation that spurred the discussion on passing a constitutional amendment.

The language was finalized, a right to clean air and water and a healthful environment would be added to the Bill of Rights contained in Article 1 of the state constitution. The state’s constitutional amendment process requires that the bill pass both the Assembly and Senate in two consecutive years and only then go before voters as a ballot proposal for final ratification.

In 2018, the initial attempt at passage failed in light of opposition from the Republican-controlled Senate but when Democrats gained control of the body in 2019, the bill passed both houses with little fight. It passed both houses again in 2020 and then last week voters approved the amendment 1,904,636 to 859,723 even while other progressive reforms failed.

Miranda said it’s gratifying to know that the committee influenced a major change to the constitution. “I’m very happy. These things take time, but they came to fruition. Its also good to know that other organizations are out there paying attention to the work we do here.”

However, the hard part is yet to come. Kurera notes that the amendment remains up for judicial interpretation and the real impact of the amendment won’t be felt until it is tested in the courts.

“The community that pushed so hard for this amendment, their job isn’t over, they need to help figure out the best way forward so that precedent isn’t set by those who don’t want to give it a good start. We also need the government to give their agencies guidance to they can properly execute their duties based on this right,” she said.