By Rich Kozlovich
New York’s proposed Green Amendment could usher in “vigilante regulation through litigation.”
Most voters will hear about the proposed amendment for the first time in the polling booth. Though the measure has been working its way through the legislature for several years, the so-called Green Amendment has received surprisingly little publicity or public pushback—and that’s a problem.
On its face, the proposal seems straightforward and appealing. Who could be against clean air and water? With backing from a host of environmental organizations, including the Nature Conservancy and the Natural Resources Defense Council, as well as putative good-government groups such as the League of Women Voters, the amendment is expected to pass decisively. But beneath its innocent veneer, the amendment could upend environmental law in the state.
“It’s a real wolf in sheep’s clothing,” Tom Stebbins, executive director of the Lawsuit Reform Alliance of New York (LRANY) told me. As written, the amendment appears to give individuals and activist groups undefined—potentially unlimited—rights to sue both the state government and private parties over perceived environmental wrongs. In other words, Stebbins says, the measure takes environmental enforcement “out of the hands of accountable elected officials and puts it in the hands of private attorneys. That’s not the way to govern.” Philip K. Howard, a longtime advocate of nonpartisan legal and regulatory reform, told me he believes the provision “will open a Pandora’s box of litigation.”
New York’s Green Amendment is the product of a long-term progressive project. For decades, activists have worked to redefine laudable goals—such as providing health care or housing—as “rights” on a par with those enumerated in the Constitution. (“The right to clean water, air and a healthful environment should be as fundamental as a person’s right to free speech and assembly,” one group maintains.) That effort has dovetailed with the rise of the “environmental justice” movement, which reframes environmental problems as examples of racial or class discrimination. A letter to state legislators in support of the measure signed by some 70 advocacy groups states that the “Green Amendment is a powerful and important tool for combating environmental racism.” According to the New York League of Conservation Voters, which backs the proposal, the amendment would mandate “that all people must have the same degree of protection from environmental health hazards.”
A handful of other states, including Pennsylvania, Montana, and Massachusetts, spell out a version of “environmental rights” in their constitutions. In 2013, activists in Pennsylvania relied on that state’s environmental rights amendment in a lawsuit to block a law reducing restrictions on fracking. The state’s supreme court ultimately struck down the fracking law, ruling that the amendment is “first and foremost a limitation on government authority.”
To date, few environmental-rights amendments have led to extensive litigation, but legal experts note that such amendments in Pennsylvania and other states are more narrowly focused than the one proposed for New York. An analysis published by the Nixon Peabody law firm observes that amendments in other states include specific details regarding enforcement and definitions. In contrast, “New York’s proposed amendment uses the most general wording feasible, giving great flexibility to the courts in New York to interpret and apply.”
The National Law Review calls the proposed amendment “simple, yet vague.” The amendment doesn’t define terms, such as “clean” and “healthful.” Nor does it spell out enforcement mechanisms, penalties for violations, or roles for existing state agencies. That vagueness wasn’t an oversight on the part of the measure’s authors. Green Amendment supporters know that the simple language will sound benign and appealing to voters, while the amendment’s lack of specificity will ensure maximum latitude for legal activists and law firms seeking to challenge both state regulations and private industry.
New York’s legislature is notoriously cozy with the state’s personal-injury trial bar, Stebbins says. So it isn’t a shock that the Green Amendment’s broad language will open up a lucrative new arena for litigation. The National Law Review notes that the text describing this “right to clean air and water, and a healthful environment” is an “outlier in terms of its brevity” compared with similar measures in other jurisdictions: “Unlike other states, the New York proposal—on purpose—does not rely on the New York legislature or state agencies to define or limit the right.”
The amendment’s seemingly limitless scope raises many questions. In particular, to what extent does it give private citizens standing to bring lawsuits against the government or against businesses and other parties? In legal terminology, that’s known as a direct right of action. It’s a feature of the Americans with Disabilities Act (ADA) and other laws. In theory, such provisions empower private citizens to help improve enforcement of a worthwhile law by spotting infractions and filing suits against lawbreakers. In practice, these rules (which often include financial rewards for plaintiffs) can turn into abusive free-for-alls. Some ADA plaintiffs file hundreds of suits a year. Legal experts say that the Green Amendment could give environmental plaintiffs similarly broad rights. “The proposal does not address enforcement,” the National Law Review observes, “but it is certain that private parties will attempt to use this new constitutional provision as a basis for a direct right of action to enforce state environmental laws against other private parties in state court.”
In apparently establishing a direct right of action against any party, New York’s Green Amendment is radically more expansive than similar amendments in other states. The Pennsylvania amendment, for example, specifies “the Commonwealth” as the “trustee of these resources.” Pennsylvania courts have ruled that while the amendment obligates the state to protect natural resources, it does not give citizens the right to file civil suits against private businesses or other parties. By opening the door to such civil suits—and by failing to define its terms—New York’s Green Amendment threatens to create a toxic legal climate. “Just think of all the claims demanding a ‘healthful environment,’” Howard says. “It would start an arms race among environmental groups and social justice groups for who can concoct the most dramatic theories.”
Without guidance from the state legislature, the National Law Journal says, it will be up to the courts to decide “how to operationalize this new fundamental right in the real world.” That could mean years of legal chaos as New York courts work out the rules of the road on a case-by-case basis—and as the inevitable appeals work their way (slowly) through higher courts. Over time, the courts might choose to place reasonable guardrails around how citizens can exercise their new environmental rights. Or they could lock in a maximalist interpretation of the amendment’s language. Either way, sorting this out might take decades.
This uncertain legal climate could be devastating for private industry in New York State. Businesses can cope with clear and consistently enforced regulations, but it’s hard to plan or raise capital in a capricious regulatory environment. Would a New York business be held liable for emissions levels that are currently legal under state law? Will development projects be subject to last-minute Green Amendment lawsuits even after passing environmental and zoning reviews? Even unsuccessful lawsuits can cost companies millions and delay projects for years.
Government agencies will also face uncertainty. New York has some of the strictest environmental laws in the nation, along with a robust state bureaucracy to enforce them. But the Green Amendment threatens to sideline those agencies, vesting the ultimate power to set environmental standards in the courts. Under a maximalist interpretation, the amendment would empower individual plaintiffs, activist groups, and the state’s endlessly innovative trial bar to dominate the environmental agenda. Ideally, federal and state environmental regulations are developed by politically accountable legislators and enforced by regulators with appropriate expertise. We expect legislators and regulators to weigh costs and benefits and hammer out policy compromises. The system is far from perfect, but it is reasonably democratic, transparent, and consistently applied.
Imagine instead a climate in which a willy-nilly barrage of lawsuits sets environmental standards. The result would be what one LRANY analyst calls “vigilante regulation through litigation.” Judges don’t have the expertise to determine whether, say, 49 parts per million of a particular pollutant constitutes a “healthy environment,” but 50 ppm does not. And the court system isn’t equipped to weigh the budgetary or economic costs of environmental rulings. Moreover, lawsuits are likely to favor localized concerns over statewide benefits. For example, I live close to a Metro North train line. That means that I’m subjected to more pollution from Metro North’s diesel locomotives than the average New Yorker. Will the Green Amendment give me standing to sue Metro North and demand that it stop using diesel trains? Should a single judge determine whether the broad benefits of mass transit outweigh the localized impact of diesel smoke? A courtroom is a terrible venue to grapple with such complex, society-wide questions. “The provision would empower courts to make critical policy choices with huge budgetary implications,” reform advocate Howard says. “It is profoundly anti-democratic.”
Defenders of the Green Amendment have little patience for these concerns. “If you’re not polluting the air or making water dangerous to drink, then you should not have any problems with this amendment,” Peter Iwanowicz, executive director of Environmental Advocates of New York told The City. But the idea that the Green Amendment will only harm polluters is simplistic. As currently written, it threatens to create delays and raise legal costs both for private industry and for public agencies such as the MTA. New York already leads the nation in civil litigation. LRANY estimates that litigation costs already add up to over $6,000 per household. The amendment would add to that burden.
Ironically, the Green Amendment might prove to be most troublesome for New York’s environmental agenda. A program launched by Governor Cuomo commits the state to eliminating carbon emissions from the electrical grid by 2040. That plan calls for rapidly building a huge number of solar and wind farms, and the construction of hundreds of miles of new power lines. Such clean-energy infrastructure projects—which involve heavy equipment, dust, and noise—invariably face resistance from nearby property owners. LRANY’s Stebbins has seen this issue first-hand, from his time working for a large wind-power firm. NIMBY lawsuits were a constant obstacle to getting wind projects approved and built. He believes the Green Amendment will dramatically increase such suits, making it harder for the state to achieve its decarbonization goals. “Even though the net environmental impact of a wind farm is overwhelmingly positive, individuals might be able to block it over very small and local concerns.”
Worse still, New York’s Green Amendment is part of a national trend. Environmental-rights amendments are moving through the legislatures of at least ten other states, including New Jersey, Maine, Washington, and Oregon. One of the leading groups backing such measures, Green Rights for the Generations, says it hopes to someday see a green amendment added to the U.S. Constitution. Before the environmental-rights juggernaut gets that far, let’s hope voters and policy experts take a more skeptical look at this dangerously seductive idea.
Photo by ED JONES/AFP via Getty Images
I periodically highlight tweets that deserve attention because they say something important, often in a clever and succinct fashion.
Today, we’re going to look at a tweet that belongs in a terrible category.
Let’s call this tweet, from some guy named Carl Beijer, the Most Morally Reprehensible Tweet of the year.
And what sort of person celebrates food lines because they supposedly fostered a “sense of community”? I wonder if he also thinks that this joyous communal solidarity extended to the people who starved to death because of communism?
At the very least, Mr. Beijer belongs in my collection of commie apologists.
P.S. This is why I wrote a few days ago that Biden’s nominee for Comptroller of the Currency should be rejected.
About Daniel Greenfield
Daniel Greenfield is a journalist investigating Islamic terrorism and the Left. He is a Shillman Journalism Fellow at the David Horowitz Freedom Center
All things considered, it doesn’t take a fortune-teller or palm reader to predict Joe Biden isn’t long for this earth. At least he isn’t long for this earth in a bi-pedal position.
It’s not just delusional and an outright lie to argue Biden competent to execute the most basic functions associated with the office his minions stole; it is a sign of psychological impairment. Biden is a shuffling, mumbling, disaster of a human being, who as I have oft said, needs sticky notes with pictures on them, posted in bathrooms to show him how to pull down his zipper.
He is the semi-ambulatory textbook definition of non compos mentis, which is a legal phrase for “not of sound mind or not mentally competent to conduct one’s affairs.” As was the case with Obama in December of 2010, when there were “allegedly” unconfirmed whisperings that Obama was unstable and being heavily medicated.
That said, a snowball has a better chance of not melting in the searing mid-afternoon sun at the equator, than there is a chance Democrats would willingly act to remove Biden. And it is a given that Republicans may make a symbolic gesture of threatening impeachment based upon Biden’s unambiguous lack mental fitness and his being cognitively impaired; but, apart from using the ranting about same for fundraising purposes, there’s less than no chance they will move to impeach him for being an embarrassment and quantifiable threat to our country.
Some very smart people have shared with me their suspicions per some of the drugs and pharma-cocktails being administered just to have Biden walk from Marine One Helicopter to the White House and/or to stumble around during public appearances. Much less what he must be ingesting to give the pretense of his being quasi-lucid.
I cannot see Biden being the one to make the State of the Union address January 2022. But who will follow him?
Well, if she lasts, Kamala Harris is next in Constitutional succession. But from what I’m hearing, allegedly there are those throughout the Democrat Party as a whole, who would almost rather see President Trump back in office than they would Harris.
Harris’s skill set revolves mostly around her ability to sleep with married men and be rewarded with public office for same. However, unlike Bill Clinton who is alleged to have slept with anything regardless of whether it had two legs, four legs or shared ambulatory traits consistent with ophidians; he at least knew how to institute Republican initiatives and take credit for them.
Following Harris in the order of presidential succession is Nancy Pelosi who has surpassed her gangster father for being corrupt and a pernicious liar, but who has thus far escaped prosecution.
This isn’t a petition saying vote Republican. As far as I am concerned Republicans are unquestioningly the country club set of the Democrat Party.
The point I want to make is that whatever productive years Biden had remaining are now squarely in the rearview mirror of his failed life. Harris’s ability do to voters what she did to married men is not a skillset worthy of office. And Pelosi is in the same condition as Biden when it comes to lucidity.
Anyone not oozing cranial fluid from the seat of their pants must admit that the present incarnation of Democrats are perfectly in keeping with what their Party has been from its inception.
Mychal S. Massie is an ordained minister who spent 13 years in full-time Christian Ministry. Today he serves as founder and Chairman of the Racial Policy Center (RPC), a think tank he officially founded in September 2015. RPC advocates for a colorblind society. He was founder and president of the non-profit “In His Name Ministries.” He is the former National Chairman of a conservative Capitol Hill think tank; and a former member of the think tank National Center for Public Policy Research. Read entire bio here
Criminals and evildoers everywhere just "LUV EM"!! Ah, yes, the joys of leftist policies!
Residents frustrated by the latest round of destructive demonstrations Tuesday questioned whether that meant anything goes now in Portland.............To Read More.....
My Take - When Grant was President he once noted the best way to get rid of a bad law is to require it's strictest possible enforcement. So, maybe, just maybe, this Chief of Police read a history book. But even if he didn't, he apparently believes that. Good for him! Let em suffer, because until these leftists have to live with their insane thinking and confront that insanity and throw out all their "leaders" at all levels of Oregon's government this will never end.
The EPA once said there's no training as good as a good civil penalty. The suffering will be their history lived, and good for their future. But if they don't learn from this insanity, it will be good for the rest of the nation as they will be an unending civics lesson on what not to do, along with Washington and California.
Hmmmmm.... I just had a thought. Does living along the coast of the Pacific with it's California Current cause insanity.
Where is our outrage?
A duly elected president has been illegally surveilled, slandered, libeled, and undermined. False witness has been brought against him, yet the guilty remain free, in power, and unapologetically above the laws to which their constituents are beholden.
Where is our outrage?
A Presidential election has been stolen. Incontrovertible proof of massive, organized, election fraud has been uncovered and put before legislative bodies, most of which have responded by vilifying the investigators and threatening them with prosecution.
Where is our outrage?
An unremarkable pathogen with a 99.7% survivability rate has been fashioned into a cudgel with which overreaching federal and state governments have beaten down freedom, imprisoned Americans in their homes and forced a demonstrably dangerous drug upon them—a drug that has killed thousands, harmed millions, and earned pharmaceutical companies and their investors billions.
Where is our outrage?
Leftist politicians championing radical/progressive agendas have reduced once glorious American cities to squalid arenas in which tax-paying Americans are pitted against legions of drug addicts, lunatics, and indigent drifters. Murders, rapes, assaults, robberies, carjackings, and home invasions have sky-rocketed in these progressive Meccas as liberal city councils decriminalize drugs, theft, and vagrancy.
Emboldened by district attorneys that refuse to prosecute and police
departments contemporaneously gutted by defunding and castrated by
liberal policies, society’s worst drive away the businesses and
law-abiding citizens upon whose industry and tax dollars civilization is
built. We are witnessing the deaths of Seattle, Portland, San
Francisco, Los Angeles, Minneapolis, and New York—yet their killers
remain free, in power, unapologetic, and comfortably insulated from
their own idiocies..........To Read More....
October 17, 2021 By Jarrad Winter
Legal opinions usually aren't terribly fun to read, but if you've been an ivermectin and/or hydroxychloroquine advocate for use against Wuhan Plague, this one definitely will bring you much joy.
It's a rather lengthy and full spectrum opinion issued by Doug Peterson, Nebraska's Attorney General, in response to a query from the state's Department of Health and Human Services as to whether physicians can be persecuted and tormented for prescribing ivermectin or hydroxychloroquine to patients sick with the China Flu. What the AG's response amounts to is a full and complete takedown of the conspiracy to suppress cheap and effective early Covid-19 treatments..........To Read More....
To lend understanding to the comment below it's necessary to explain there are members of Our Group who own horses. RK
Our Group's Take - . I really wish that I had both hydroxychloroquine and Ivermectin on hand just in case. In fact, if I thought that I was coming down with covid-19 seriously look at what the human dose is for Ivermectin versus the horse dose to see whether it was reasonably safe to carefully divided up a horse wormer to use on myself at an appropriate dose. Frankly I think it's rather criminal that it is likely very difficult to get a doctor to agree to prescribe these medications. Apparently at least in many places, doctors are looking at hardcore sanctions and possible loss of license if they do prescribe them, however. It's beyond absurd, and this sort of asinine BS has resulted in huge loss of life that was almost certainly totally unnecessary.
We cover COVID to Climate, as well as Energy to Elections.
COVID-19 — Repeated Important Information:
COVID-19 — Therapies:
COVID-19 — Vaccine Mandates:
COVID-19 — Vaccine, Other:
COVID-19 — Models and Data:
COVID-19 — Misc:
Renewable Energy Health and Ecosystem Consequences:
Fossil Fuel Energy:
Manmade Global Warming — Some Deceptions:
Manmade Global Warming — Misc:
US Election — Arizona:
US Election — Other State Issues:
US Politics and Socialism:
Other US Politics and Related:
Education Related — Parents as Terrorists:
Science and Misc Matters:
John Droz Jr., Physicist & Citizen’s Rights Advocate
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