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New York State Environmental Rights Amendment: Standards of Review

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By Scott Fein, Harrison Robbins ’25, and Patrick A. Woods ’12*

February 5, 2024

Introduction

On November 2, 2021, New York voters approved an Amendment to the New York State Constitution’s Bill of Rights providing that: “Each person shall have the right to clean air and water, and to a healthful environment.”[1] As noted in our prior explainer,[2] the right to a healthy environment was, for the first time, expressly cloaked in constitutional protection.[3] This new provision has been referred to colloquially as the “Green Amendment.”[4]

In our initial explainer, we sought to examine the potential impact of the Green Amendment. That explainer explored questions such as: Is the Green Amendment self-executing or will it require legislative action to implement? What is the breadth of the term “clean air and healthful environment”? Who has standing to bring suit under the Green Amendment? And may a private party be the subject of a suit under the Green Amendment?

As detailed in the earlier explainer, we believe the Green Amendment (i) will likely be held to be self-executing and requires no further legislative action to be effective, and (ii) was embedded in our state’s bill of rights by the Legislature and body politic so that it will be understood as a “fundamental right.” One issue, however, remains unexamined: the ‘standard of review’ the courts should use to determine the constitutionality of a government action that allegedly violates the Green Amendment. The standard of review applied by the courts will, more than any other factor, decide the long-term importance of the Amendment. This explainer examines the considerations taken into account in determining the appropriate standard of review.

Hypothetical

We will refer back to the following hypothetical scenario so as to illustrate the importance of the standard of review applied and how it might affect the outcome of a dispute.

Assume that the New York State Department of Environmental Conservation issues a permit that allows for industrial wastewater containing a low level of carcinogenic compounds to be discharged into a river used as drinking water by a primarily minority community. The community that uses the river is, perhaps understandably, upset by the inclusion of carcinogenic compounds, seeks to have the permit struck down, and to have the discharges ceased, on the basis that the permit violates the Green Amendment’s guarantee of clean water. The state and the industry holding the permit assert that the amount of the contaminants is well within state-authorized discharge concentrations. The facts are not in dispute. The question is how a court decides whether the permit is unconstitutional.

What Are Constitutional Standards of Review?

A constitutional standard of review is a framework that courts use to determine whether a particular government action that is alleged to violate a constitutional right rises to a level that permits or requires the court to conclude that the action was unconstitutional.[5] When a governmental action has been challenged as unconstitutional, a court generally selects one of three “levels of judicial scrutiny,” to decide the claim.[6] These levels are based on determinations made about which constitutional rights and protections are more “fundamental” and, therefore, more deserving of strong judicial protection, or whether the parties requesting review of the government action fall within a class of people who are protected by the constitutional provision in question.[7]

The three standards of review typically applied by New York and federal courts in constitutional litigation are:

  1. Strict scrutiny, the most rigorous standard. Strict scrutiny requires the government to demonstrate that the challenged action, in this instance granting a contaminant discharge permit, serves a compelling state interest and that its conduct is narrowly tailored to serve that interest.[8] This standard is very difficult for the government to meet, because it usually requires the government to show that its action is the least restrictive way it could have served the governmental interest and that the government’s action is only as extensive as necessary. For that reason, strict scrutiny is often described as “strict in name, fatal in fact.” Strict scrutiny is typically required when the government’s conduct involves laws targeting race, lack of citizenship, national origin, and religion. It will also be applied in certain other circumstances in which the constitutional right alleged to be violated is recognized as “fundamental.”
  2. Intermediate scrutiny, the next most rigorous standard. Intermediate scrutiny requires the government to demonstrate that the challenged activity serves an important state interest, and the governmental action is substantially related to serving that interest. An action that can pass intermediate scrutiny is, “not necessarily the single best disposition but one whose scope is in proportion to the interest served.”[9] It is easier for governmental action to survive intermediate scrutiny than strict scrutiny, but it is also not unusual for governmental action to be struck down under intermediate scrutiny. Typically, intermediate scrutiny is applied to circumstances that involve laws or actions addressing gender, illegitimacy, and commercial speech. Intermediate scrutiny often will be applied where the constitutional rights are deemed to be “important” but not quite “fundamental.”
  3. Rational basis review, the least rigorous standard. Under a rational basis review, the government need only show that the challenged action is rationally related to serving a legitimate state interest.[10] This is typically applied when the law does not target anyone based on race, gender, or other similar classifications and the constitutional provision allegedly violated is not considered a fundamental right. In most cases where a court applies rational basis review, the government’s action will be upheld.

Importantly, the standard of review that a court applies will depend upon why the challenged government action is alleged to be unconstitutional. The issuance of the permit in our example could, in theory, be challenged not only as violating the Green Amendment, but also as violating the constitutional right of Equal Protection by disproportionally injuring a minority community. Courts will examine each challenge separately and apply the standard of review appropriate to the basis of that challenge.

Did the Green Amendment Create a “Fundamental” Constitutional Right?

As noted, which level of scrutiny a court applies depends, in significant measure, upon the importance accorded a constitutional provision. In other words, is the allegedly violated right a “fundamental” right? Fundamental rights are those constitutional safeguards that have been recognized by the courts to be of such importance as to require a high degree of protection from governmental violation. The following two factors lead us to conclude that the Green Amendment will likely be held to be a fundamental right:

  1. The Green Amendment’s placement in the New York State Constitution’s Bill of Rights, and
  2. The Green Amendment’s legislative history.

The Green Amendment’s Placement in the State Constitution’s Bill of Rights

When the New York State Constitution was first enacted, there was a concern that the new and more powerful national (and state) government operating under a constitution that did not include a bill of rights might pose a danger to the rights of its citizens. Although some argued that a bill of rights was unnecessary because individual rights were protected by the common law, a series of amendments were added to the New York State Constitution in 1881 in order to eliminate ambiguity. These amendments expressly refer to various individual rights and include those rights in Article I of the New York State Constitution. Today, New York’s constitutional bill of rights contains 16 clauses, including the most recent addition, the Green Amendment.

There appears to be no single reason that the Legislature chose to place the Green Amendment in Article I. Some New York courts, however, have considered the placement of a right into Article I as “strong evidence that the right was regarded as fundamental.”[11] The view that the choice of placement was intended to signify the importance of the right was also shared by the New York State Bar Association in its Task Force Report recommending, “incorporation of an environmental right in Article I, as opposed to Article XIV, because such right is appropriately viewed as on par with other important rights protected in Article I.”[12]

It bears noting that a number of prior provisions creating new rights have been placed by the Legislature in the Constitution but not into Article I. Such provisions include the Forever Wild Clause protecting the Adirondack and Catskill Forest Preserve,[13] protection of voting rights,[14] provision of public education,[15] and social welfare protections.[16] Thus, there was ample precedent for placing the Green Amendment elsewhere in the State Constitution. Nevertheless, the State Assembly and Senate, two successive New York State Legislatures, and 70 percent of the voting public in a state-wide referendum chose to place the Green Amendment in the bill of rights. In our view, courts are likely to consider that choice to be significant.

The Green Amendment’s Legislative History

The process of placing the Green Amendment on the ballot in New York State began in 2017. The proposal did not, initially, meet with legislative approval. However, it was reconsidered by the Legislature in 2019 and again, as required for a proposed constitutional amendment, in 2020. The Green Amendment successfully passed both houses of the Legislature in 2021. On November 2, 2021, the ballot referendum received 70 percent of the state-wide vote and became law.

As is often the case with a prolonged legislative history, there were conflicting views held by legislators, even among those who supported the legislation. There are approximately 44 legislative memoranda, transcripts, and interested party submissions in the bill file and related documents. Despite some ambiguity, many of the legislators who voted for the amendment believed the provision to be a “fundamental right,” even if they disagreed on the details of how it would be applied. For example, the Sponsors’ memoranda, both in the Assembly and the Senate, provide that the amendment will “ensure that clean air and clean water are treated as fundamental rights for New Yorkers.”[17] In an exchange, however, Assembly Member Englebright said: “Just like I am a geologist not a lawyer, I will leave the lawyers to determine. I can tell you this: There is . . . very short language in the proposed amendment and it does not address rights of legal action, it doesn’t even speak to that issue.”[18]

What Judicial Standard of Review Would Afford Meaning to the Green Amendment?

Even if the Green Amendment is considered to be a fundamental right, that is not necessarily the end of the analysis. The New York Court of Appeals has never held that a government action will be subject to strict scrutiny solely because of where it resides in the text of the New York State Constitution or based on its perceived fundamental nature. Examples of provisions New York courts have deemed to require strict scrutiny include the right to vote, the right to a jury trial, the right to bail, the right to a grand jury, some aspects of freedom of speech, and equal protection of protected classes of persons. On the other hand, rights that have been deemed entitled to a less rigorous standard of judicial review include commercial speech, freedom of religion in certain circumstances, just compensation for taking private property, the right to assemble and petition, and matters relating to search and seizure.

One of the complications in selecting and then applying any constitutional standard of review will be the legal backdrop against which the Green Amendment was enacted. New York is not new to environmental laws and regulations. Tens of thousands of state and local environmental and land use laws and regulations have been enacted in this state starting as early as 1894. Today, there are a multitude of interlocking federal, state, and local laws and regulations that attempt to regulate and protect New York’s resources and the public’s health.

The degree to which the Green Amendment is intended to override those statutes and regulations is not clear from the legislative history, as the remarks from Assembly Member Englebright quoted above demonstrate. Thus, courts may not be inclined to apply to all Green Amendment challenges a strict scrutiny standard, the most rigorous standard of review which generally results in the government’s action being struck down.

At the same time, courts are generally reluctant to treat new enactments—especially new constitutional provisions—as failing to result in any meaningful change in the law. Selecting the rational basis standard, the least stringent standard, to decide matters brought under the Green Amendment would negate any practical effect of the Amendment.

This leaves two options for courts looking to find a path to prevent the Green Amendment from overturning existing laws and regulations if strict scrutiny review is applied, while avoiding the result that the Amendment would have no meaningful effect if rational basis review is adopted.

First, courts might adopt intermediate scrutiny, requiring the government to demonstrate that actions impinging on the right to clean air, water, and a healthful environment are justified by an important state interest that is substantially related and in proportion to action the government has taken.

Alternatively, courts can adopt an approach similar to the one taken in reviewing challenges to government action allegedly violating the rights to free speech under the First Amendment to the United States Constitution. In First Amendment challenges, the standard of review will vary depending on the kind of speech that the governmental action is seeking to restrict and the manner in which it is doing so. For example, if the government is seeking to prevent the publication of newsworthy information (a “prior restraint”) or is attempting to prevent the spreading of particular ideas (“viewpoint discrimination”), the government’s action will most likely be subject to the strict scrutiny standard of review.[19] By contrast, if the speech in question is considered less valuable, such as truthful commercial advertising, the regulation will likely be subjected to intermediate scrutiny.[20] Where the speech is of little or no social value, such as “true threats,” the level of review will be even less stringent and, therefore, courts will be more likely to uphold governmental restrictions.[21]

New York’s courts could potentially develop a similar set of rules for determining which governmental actions trigger greater scrutiny under the Green Amendment. For example, courts could make distinctions based on how severe they consider the environmental impact at issue and the potential impact of the government’s actions, or on whether the Legislature had expressly authorized the conduct at issue prior to the adoption of the Green Amendment.

Returning to the Hypothetical

What will this look like in practice? Let us return to the example above where it is not disputed that an industrial wastewater discharge containing carcinogenic compounds was authorized and permitted by DEC under the current laws and regulations. Residents near the river sue, claiming a violation of the Green Amendment. Presumably, the government would argue that the industrial discharge regulations under which the permit was issued promote industry and the creation of new jobs, important state interests.

The court, applying an intermediate standard of constitutional review, would need to determine whether the state’s conduct was reasonably tailored to promote its interests. The court would consider whether the state could have achieved its objective while requiring lower concentrations of contaminants in the wastewater, whether the industry discharging the wastewater could use technology or manufacturing practices to reduce the contaminants in the water, and whether such restrictions would unreasonably undercut the state’s goal of promoting business growth and employment.

Alternatively, the Court might consider a variety of other factors to determine the appropriate standard of review. Such factors might include the likelihood that the wastewater discharge will intermingle with the town’s drinking water or whether the regulations under which the permit was issued mirror an existing law enacted by the Legislature or were created by a government agency pursuant to general powers granted by the Legislature.

Conclusion

The appropriate standard of review for challenges to government action brought under the Green Amendment will largely determine what effect the amendment has on current environmental regulations. We believe that courts are likely to take a middle road and either apply intermediate scrutiny or develop a set of rules that applies different standards of review depending on the circumstances of the government action. Under either of those two approaches, the Green Amendment can be expected to have a significant impact on environmental regulations in the state without upending existing environmental protections.

The Government Law Center provides the nonpartisan legal research and analysis that state and local governments need to better serve their communities. Our role is to explain, not to advocate for a particular position or course of action.

Notes

* Scott Fein is Senior Counsel at Whiteman Osterman & Hanna LLP. Harrison Robbins is a second-year law student at Albany Law School. Patrick A. Woods is Deputy Director of the Government Law Center at Albany Law School.

[1] See N.Y. Const. art. 1, § 19.

[2] Scott Fein and Tyler Otterbein, New York’s New Constitutional Environmental Bill of Rights: Impact and Implications, Gov’t Law Ctr. Explainers, Nov. 2021, at 1, https://www.albanylaw.edu/government-law-center/new-yorks-new-constitutional-environmental-bill-rights-impact-and.

[3] New York also has a statutory bill of rights. See N.Y. Civ. Rights Law §§ 1–18. To learn more about the relationship and history of those documents, see Robert Emery’s law review article, New York’s Statutory Bill of Rights: A Constitutional Coelacanth, 19 Touro L. Rev. 363 (2015), https://digitalcommons.tourolaw.edu/lawreview/vol19/iss2/20.

[4] The provision has also been referred to as the Environmental Rights Amendment or ERA. Because the acronym for the term “Environmental Rights Amendment” is the same as for the “Equal Rights Amendment” that will be presented to New York voters in November 2024, we will use the term “Green Amendment” in this explainer.

[5] The standard of review differs from the burden of proof. The former governs the standard the courts apply when reviewing a particular question, while the latter governs the amount of factual proof necessary to succeed on a claim brought before a court or in an administrative proceeding.

[6] The concept of levels of judicial of scrutiny was first introduced in federal law by the United States Supreme Court’s decision in United States v. Carolene Product Co., 304 U.S. 144 (1938). New York courts have since applied these standards in a wide range of constitutional cases, some of which are described in this explainer.

[7] New York’s definition of “protected class” is broader than its federal counterpart and may be broadened further by the Equal Rights Amendment that will be on the ballot in November 2024.

[8] Alevy v. Downstate Medical Center, 39 N.Y.2d 326, 333 (1976).

[9] Anonymous v. City of Rochester, 13 N.Y.3d 35, 48 (2009); Vullo, Inc. v. City of New York, 931 F.3d 42 (2d. Cir. 2019).

[10] Henry v. Milonas, 91 N.Y.2d 264, 267,68 (1998).

[11] Hernandez v. State of New York, 173 A.D.3d 105, 113 (3d Dep’t 2019).

[12] New York State Bar Association, Report and Recommendations Concerning Environmental Aspects of the New York State Constitution 7 n.9 (2017), https://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1962&context=plr.

[13] N.Y. Const. art. XIV, § 1.

[14] N.Y. Const. art. II.

[15] N.Y. Const. art. XI.

[16] N.Y. Const. art. XVII.

[17] N.Y. Assemb., A.1368, Memorandum in Support of Legis., at 1–2 (2021); N.Y. Senate, S.528, 2021–2022, at 1 (2021).

[18] N.Y. Assemb. Sess. Proc., N.Y. Assemb., at 40 (Feb. 8, 2021).

[19] N.Y. Times Co. v. Sullivan, 376 U.S. 254, 266 (1964).

[20] Central Hudson Gas & Electric Corp. v. Public Service Commission of N.Y., 447 U.S. 557, 2351 (1980).

[21] Counterman v. Colorado, 600 U.S. 66, 2119 (2023).