State Administrative Constitutionalism and Environmental Rights

Abstract

Since New York’s Environmental Rights Amendment took effect in 2022, judges and litigants alike have understandably struggled to make sense of it. The “Green Amendment” presents unique interpretive challenges as a state constitutional positive right that is closely related to a preexisting regulatory scheme. Thus far, Green Amendment claims have been accompanied by statutory causes of action. Consequently, courts’ early interpretations of the right have, at best, entangled—and at worst, equated—the right with adherence to existing environmental laws, especially the State Environmental Quality Review Act (SEQRA). Reviewing environmental statutory and constitutional rights claims concurrently raises questions related to state constitutional interpretation, administrative agencies’ role in constitutional interpretation, and deference. This Note seeks to propose a framework for reviewing Green Amendment claims within the existing statutory context using lessons from scholarship on state constitutionalism and administrative constitutionalism. This Note ultimately concludes that democratic proportionality review is the most appropriate way to interpret the Green Amendment as a positive state constitutional right and argues that courts can conduct this proportionality analysis by merely reviewing agencies’ mitigation findings under SEQRA using a de novo standard of review. Such an approach acknowledges that administrators engage in constitutional interpretation when implementing their statutes, but it applies the appropriate standard of review to those interpretations, since courts are the final arbiters of constitutional meaning.