January 17, 2019
The New Jersey Legislature is in the process of proposing an Environmental Rights Amendment to the State constitution, based on an existing amendment to Pennsylvania’s constitution. Concurrent resolutions, ACR85 and SCR134, are pending before the Assembly and Senate of the State legislature. The amendment provides that every person has a constitutional right to a clean environment, including the right to clean air, pure water and healthy habitats. The amendment would require the State to preserve public natural resources, including preventing others from destroying or damaging them. If adopted by a three-fifths majority of both the Senate and Assembly, or by a majority of both houses of the legislature in two consecutive years, it would be submitted to the people at the next general election. If approved by a majority of the voters, the New Jersey Constitution would be so amended. Presently, the earliest it could appear on the ballot is November 2019. New Jersey, already among the most pro-environmental states in the union, would use the proposed constitutional amendment to guarantee two separate rights to the people in the State.
Right of Citizens to the Preservation of Environmental Values. First, the proposed constitutional amendment grants the right of citizens to the preservation of certain values in the environment. Specifically, 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. The State may rely on its administrative agencies to interpret “clean air,” “pure water,” and other technical benchmarks. However, following such agency interpretation does not automatically guarantee constitutional compliance if the agency interpretation and implementation fall below reasonable standards. The clause does not call for an end to new economic development, or the sacrifice of other fundamental values like constitutionally-protected property rights. Instead, it preserves environmental values, and states that governmental action cannot take place without reasonable effort to address the environmental effects of development.
Common Ownership of the People in Public Natural Resources. Second, the proposed constitutional amendment guarantees the common ownership of the people, including future generations, of New Jersey’s public natural resources, with the State serving as trustee of those resources. This second clause applies to a narrower category of “public natural resources” than the first clause, and includes waters, air, flora, fauna, climate and public lands of the State. The term “public natural resources” is not exclusively defined and is amenable to change over time to conform to the development of new legal and societal concerns. The term is flexible and intended to capture the full array of resources implicating the public interest.
State as Trustee. The State would serve as trustee of these public natural resources, with the people as named beneficiaries of the trust. “Trust” is used as a term of art to carry specific legal implications. The trust is more than a statement of government power to use public property for public purposes. It is an affirmative duty of the State to protect the people’s common environmental heritage. The State may only surrender that right of protection in rare cases when the abandonment of that right is consistent with the purposes of preserving the trust. The explicit terms of the trust require the State to conserve and maintain the principal of the trust (i.e.-public natural resources) and impose a duty to prevent and remedy the degradation, diminution or depletion of the public natural resources. The State has the obligation to carry out these trust responsibilities, whether through direct action or restraining private parties from acting.
The State’s duties to conserve and maintain public natural resources are tempered by legitimate development tending to improve the lot of the citizenry, with the goal of promoting sustainable development. The amendment does not prohibit de minimis damage to the environment that does not impact the health of public natural resources. The beneficiaries of the trust are all of the people of New Jersey, including generations to come. The State, as trustee, has the obligation to deal impartially with all beneficiaries, and must balance the interests of present and future beneficiaries. Future beneficiaries are entitled to equal access and distribution of the resources, thus the State cannot manage public resources in a manner that would deprive future generations of the same uses available to present generations. This proposed amendment offers protection equally against both actions with immediate severe impact on public natural resources and actions with insignificant present consequences that are actually or likely to have significant or irreversible effects when compounded over the long term.
Self-Executing Amendment. The amendment is self-executing, and therefore does not require affirmative legislative action to take effect. This would somewhat insulate the amendment from the ebb and flow of political change. The rights in the proposed amendment are in addition to any rights available under the public trust doctrine (i.e.-a doctrine created by judicial decisions requiring the State to protect the public’s right in certain, limited natural resources) and common law (i.e.-law created by judges in judicial decisions). This constitutional amendment seeks to broaden the types of lawsuits that citizens may bring against the State (and any of its acting political subdivisions) in order to enforce environmental values.
It is difficult to say how this amendment would function if enacted. Its wording is strong but vague. Certainly, it would result in litigation. Those court cases would ultimately determine the true meaning of this amendment. Only time would tell whether that meaning results in positive environmental benefits for the citizens of New Jersey.