Should Environmental Rights Be Protected by the New Jersey Constitution?

Should Environmental Rights Be Protected by the New Jersey Constitution?

The Senate Environment and Energy Committee recently advanced a resolution that asks New Jersey voters to decide whether the State Constitution should be amended to recognize that every person has a right to a clean and healthy environment. While the controversial amendment aims to preserve the state’s natural resources, it could also make development in New Jersey more burdensome and expensive.

Senate Concurrent Resolution 134

Senate Concurrent Resolution 134 would Amend Article I by adding a new paragraph 24 to read as follows:

(a) Every person has a right to a clean and healthy environment, including pure water, clean air, and ecologically healthy habitats, and to the preservation of the natural, scenic, historic, and aesthetic qualities of the environment.  The State shall not infringe upon these rights, by action or inaction.

(b) The State’s public natural resources, among them its waters, air, flora, fauna, climate, and public lands, are the common property of all the people, including both present and future generations.  The State shall serve as trustee of these resources, and shall conserve and maintain them for the benefit of all people.

(c) This paragraph and the rights stated herein are (1) self-executing, and (2) shall be in addition to any rights conferred by the public trust doctrine or common law.

The proposed constitutional amendment would establish two separate rights, the first of which is the right of citizens to the preservation of certain values of the environment. As explained in the statement accompanying the proposal, “this clause requires the State to consider the effect of any proposed action on pure water, clean air, and ecologically healthy habitats, and on the preservation of the natural, scenic, historic, and aesthetic qualities of the environment, before taking action.” It further explains, “The State may rely on agency determinations for the interpretation of ‘clean air’ and ‘pure water,’ and other technical benchmarks; however, following agency interpretation does not automatically guarantee constitutional compliance if the agency interpretation and implementation fall below reasonable standards.”

The second right is the common ownership of the people, including future generations, of New Jersey’s public natural resources, with the State serving as a trustee of those resources. As explained in the statement, “the second clause applies to a narrower category of ‘public natural resources’ than the first clause of the amendment and includes the waters, air, flora, fauna, climate, and public lands of the State.” However, the term “public natural resources” is not exclusively defined. While supporters maintain that the flexible approach allows it to the definition to be “amenable to change over time to conform to the development of new legal and societal concerns,” the vague definition may result in legal disputes.

Environmental Rights Amendment Is Controversial

Should it continue to advance, SCR 134 will likely be the subject of widespread debate. Supporters of the proposal contend that environmental rights need constitutional protection to ensure that government officials act to prevent environmental harm. “This amendment will ensure that every governmental official, now and into the future, will give protecting the right to clean air, a stable climate and a healthy environment the same high priority in decision making as protecting property rights, civil rights and advancing sustainable industries, energy and development,’’ said sponsor Sen. Linda Greenstein.

Groups like the New Jersey Builders Association, the New Jersey State Chamber of Commerce, the New Jersey State League of Municipalities, and the Chemistry Industry Council of New Jersey oppose the ballot question, arguing that the vaguely written amendment will do more harm than good. While they applaud its goals, critics contend that the proposed amendment would spur environmental litigation and hamper the state’s economic growth.

Pennsylvania and Montana have amended their state constitutions to include similar environmental rights. Whether New Jersey lawmakers and voters will approve SCR 134 remains to be seen. While the Senate Environment and Energy Committee recently advanced the proposed amendment, it still has a long way to go. If approved by the New Jersey Legislature, the proposed amendment would be on the 2019 ballot.

If you have any questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Dan McKillop, at 201-806-3364.