The Private Litigation Impact of New York’s Green Amendment

Abstract

The increasing urgency of climate change, combined with federal environmental inaction under the Trump Administration, inspired a wave of environmental action at the state and local level. Building on the environmental movement of the 1970s, activists have pushed to amend more than a dozen state constitutions to include “green amendments”—self-executing individual rights to a clean environ-ment. In 2022, New York activists succeeded, and New York’s Green Amendment (the NYGA) now provides that “Each person shall have a right to clean air and water, and a healthful environment.”

However, the power of the NYGA and similar green amendments turns on judicial interpretations of their scope. In the first decision to reach the issue, a New York trial court held, with little analysis, that the NYGA provides no private rights against private polluters. This conclusion could severely limit the reach and significance of state envi-ronmental rights.

This article examines a single question: Does the NYGA grant private rights that are enforceable against private parties? In answering this question, we examine the 50-year history of private litigation under green amendments, the substance and historical context of the NYGA, and the broader structure of New York’s constitution and environmental law. We conclude that the New York trial court got it wrong, and that the NYGA does provide a private cause of action against private parties. We further assess the indirect impact of constitutional envi-ronmental rights on private litigation, and conclude that the NYGA will have an enormous impact on private litigation generally, irrespective of whether New York’s courts reject private litigation under the NYGA. This discussion provides a novel evaluation of the shadow that consti-tutional changes cast on non-constitutional law.