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NJ Senate To Hear Proposed Constitutional Amendment To Establish Rights To A Healthy Environment

On Thursday March 7, the NJ Senate Environment Committee will hold a public hearing to take testimony on a proposed amendment to the NJ Constitution to establish certain environmental rights. The hearing is “For Discussion Only”, meaning that the Committee will not take action on the Concurrent Resolution.

Senate Concurrent Resolution 43:

SYNOPSIS

Proposes constitutional amendment to make State trustee of public natural resources and guarantee to the people other environmental rights.

I have not been involved in the almost decade long effort to advocate for this Resolution and I have not researched and written about the issue. Frankly, I viewed it largely as a waste of time, an expensive legalistic diversion, and a symbolic gesture – thus the question I posed in the headline to this post.

But a NJ environmentalist reached out to me to solicit my thoughts. So here is my reply to that request and cursory review (I did no research):

The Concurrent Resolution was originally introduced 8 years ago (2016), see:

https://www.njleg.state.nj.us/bill-search/2016/ACR259

I think the current version is being pushed by Maya Van Rossum (a lawyer) and head of Delaware Riverkeeper.

Politically, it’s used as a tool to hold out a carrot before the Trenton environmental groups to squelch criticism and engender political support. If they’re good boys and girls, they might get the measure on the ballot!

Substantively, I make the following observations:

1) the State of NJ already legally is the trustee for natural resources under the common law Public Trust Doctrine (well established and encoded in NJ law by the Courts), under NJ statutory law (again, upheld by the NJ Courts) and some federal laws, like Superfund, where injuries to natural resources must be compensated for and States serve this Trustee role.

More important is the fact that DEP has failed to enforce these rights in virtually all permit programs, remedial action programs, and natural resource management programs and with virtually no legislative oversight.

So SCR43 would do little more than codify current law in this respect, but with some expansion in scope.

2) The SCR applies only to the State and actions (and inaction) by the State, not the private sector. It’s the private sector that is doing the damage. So why isn’t the private sector prohibited from violating these rights?

3) The elevation of natural resources as “common property” and consideration of “future generations” are expansions of current law and good ideas.

4) I don’t see anything specific to the climate, the most serious threat. Don’t we have a right to an atmosphere of 350 ppm carbon dioxide? That’s what the science says is the maximum concentration to support a stable climate. Why isn’t that numeric standard written into the concurrent resolution?

[Update: I also don’t see any specific new rights about “public health”. Does a healthy environment apply to human health? If not, this could actually undermine the current regulatory approach to health based standards.  ~~~ end update]

5) The “self executing” provision is good:

https://www.law.cornell.edu/wex/self-executing

[Update: Based on the comments from my lawyer friend (below), I need to rethink this and how it would actually work. I initially thought it a good idea that the rights could be enforced before years of delays for implementing legislation and DEP regulations. But, this has downsides, including making the Courts the venue for science, policy, regulatory and political  decisions regarding what a healthy environment is. This also could have the effect of giving DEP an excuse and a huge pass on the need to adopt stricter new regulatory standards to preserve and protect these rights. So, the existence of these new “rights” would be even worse than reliance on case by case site specific battles (as opposed to uniform statewide regulations I support) – it could actually set back any future progress on DEP adopting much needed stricter standards. The same dynamics would apply to the Legislature: why pass stronger laws when the Constitution now protects the environment?

So, if the Courts do the job, why not eliminate DEP entirely? This could drive the creation of a sort of private litigation approach to environmental protection: those with the money to lawyer up get protections, the rest of us get screwed. ~~~ end update]

6) I don’t understand how creation of this right improves anything. It will take many years for people and environmental groups to bring lawsuits to have these rights defined and enforced.

For example, it took over two hundred years to flesh out the US Constitution’s First Amendment rights, and that law is still not settled.

There are no current standards (scientifically and legally) as far as I know that define what these rights are substantively: will the right to clean air and water be limited to the current air and water quality standards? I don’t even know what an “ecologically healthy habitat” is; or what the criteria are for judging the “esthetic qualities of the environment”

It will take decades of expensive litigation to even begin to flesh out what these rights mean in the real world and establish how they are enforced.

7) The enforcement relies on expensive lawyers and litigation and the courts.

The Courts are the least democratic branch of government.

Money spent on lawyers (and scientific experts required to file briefs and testify in court) could be spent on much more effective strategies.

Litigation is a case by case approach and the outcomes are usually crafted by the courts to be very narrow and applicable only to the case and controversy before the court. Fighting individual site specific battles are a huge waste of money and time and divert from far more effective strategies and tactics. Economists call these “opportunity costs”.

8) The Trenton Democrats use largely symbolic gestures like this to cover for their failures and corruption. In the end, they won’t even fight politically for it and it is unlikely to pass both houses and be placed on the ballot. But NJ Spotlight will write a glowing story praising their leadership and vision. That’s exactly the headline they are looking for.

9) Meantime, despite all the rhetoric on “environmental justice”, the current legal framework which actually does have teeth and can be enforced (e.g. Title VI of the Civil Rights Act, which was litigated in Camden) is being eviscerated – as is the Public Trust doctrine, which DEP routinely violates and with no oversight or criticism by the Legislature or environmental groups.

Similarly, far more pragmatic, realistic, democratic, and effective legislative reforms, like: a) expanding the right to “standing” in administrative challenges to DEP permits, or b) broadening the scope of the Clean Water Enforcement Act to all DEP permits, or c) establishing standards and burdens of proof for natural resource damage recovery, or d) mandating environmental and climate impact statements (a State NEPA) or e) using budget and oversight powers to force DEP to resume issuing annual reports on enforcement of environmental laws, or f) establishing the  “precautionary principle” to guide DEP decisions under scientific uncertainty, or g) establishing enforceable numeric standards and methods required to enforce current law on “cumulative impacts” and “disproportionate burden”, h) or mandating that DEP regulate hundreds of currently unregulated chemicals known to be emitted, discharged and present in air, water, and drinking water, i) or revoking laws that privatize energy, toxic site cleanup, drinking water and wastewater treatment systems, and State parks management, or j) or banning logging and improving protections of the last remaining forests and farms, or k) restoring the Pollution Prevention Act, which was gutted by the chemical industry, or l) closing massive loopholes in the Open Public Records Act, Whistleblower “protection” laws, and many current environmental laws based on decades of experience – all of these go completely ignored by Legislators and environmental groups and the media.

10) Politically, the Trenton environmental groups will show up to praise it and then use the press clips as indicators of success and go back to the Foundation community for more funding.

But it will be interesting to see how the business community responds.

My sense is that they will be smart enough to allow the motherhood  and apple pie moment to pass with little fanfare – they know it’s not a good look to oppose the right to a clean and healthy environment!

But behind the scenes they will lobby legislators to oppose it, if only due to potential litigation risks and the delays and uncertainties this could inject into the DEP permitting process. They will downplay this concern in public testimony, of course.

In conclusion, given all the above, I think the SCR is a misguided strategy and more of a symbolic gesture and Kabuki dog and pony show than a sincere effort. Hate to appear cynical, but I’ve seen too much of how Trenton operates.

[Update: Here is what a prominent leading veteran NJ environment lawyer has to say:

The proposed amendment hasn’t been on my radar screen for several years.

Your email reminded me that the proposal has resurfaced “for discussion purposes only”.

I think the primary problem with the proposal is that it potentially assigns responsibility to the judiciary to determine in the first instance what constitutes “a clean and healthy environment” and what constitutes “the preservation of the natural, scenic, historic, and esthetic qualities of the environment”.

The judiciary is not the appropriate venue to determine on a case-by-case basis how clean is clean; how healthy is healthy; what level of preservation is acceptable; and make aesthetic determinations [isn’t beauty supposed to be in the eye of the beholder?]

Those sound like policy issues that should be made by an executive branch agency in accordance with enabling legislation and be subject to judicial review.

I also view the first sentence of 24(a) as broader than you do. It could be misused by disgruntled neighbors, competitors, and objectors.

The proposal may have a feel-good quality for its proponents but has the potential to result in serious and negative unintended consequences.

Regards,

XXX