Weaponizing State Constitutions With An Environmental Rights Amendment Part I

"The Green Amendment cannot be weaponized against a private entity"

New York State Appellate Court 2024

With the potential for a Democratic steal of yet another election the ability for the Green Movement to garner more power is very real. Environmental laws are growing more restrictive across the country and is affecting costs of doing business, personal travel, costs of fuel and banning the use of products that have become part of many America households.

     The Environmental Rights Amendment is being trucked around the various states in an effort to gain enough support to apply for a Federal Amendment to the US Constitution. 

    This is a fantastically bad idea.

https://forthegenerations.org/the-green-amendment/

    Maya K. van Rossum is a lawyer and founder of The Green Amendment movement. She is the author of the book with the same title. She has set up her headquarters in Pennsylvania and has managed to get three states to amend their constitutions such as New York, Pennsylvania and Montana. NY passed the Amendment to their state Constitution in 2021 and has already gummed up the legal system with lawsuits. Which begs one to ask; is this movement about clean air and water or about suing companies for monetary gain?

    The main page of the website certainly tugs at your heart strings. One would be convinced the planet is dying and the poor citizen is left with hopelessness.

For decades, activists have relied on federal and state legislation to fight for a cleaner environment. And for decades, they’ve been fighting a losing battle. The sad truth is, our laws are designed to accommodate pollution and legalize environmental degradation rather than prevent them. It’s no wonder people feel powerless when it comes to preserving the quality of their water, air, climate, public parks, and special natural spaces.

     I'm not exactly sure just where Maya has been these last few 'decades' but the environment in the US has steadily improved since I was a child growing up in the 70's. Automotive emissions, factory emissions, recycling programs, green spaces, water quality have all improved immensely. I can remember smog in the city. Pollution was so bad in Amerca at one time rivers would catch on fire from the chemicals. Another indicator of an improved environment is the surge of wildlife populations.

    Here in the Thames River Watershed/Last Green Valley National Heritage Corridor of Connecticut there are incredible green areas full of wildlife. One wouldn't think so in such a small state sandwiched between New York City and Boston. I highly doubt other communities in other states disregard their natural resources and open spaces. And I find it dubious that there is a push to pass statewide and national amendments to force more protection of the environment.
    However, we must be cautious of these 'grassroots movements". I have filmed, interviewed and written about a few of these movements over the years and have discovered a more nefarious purpose belies their altruism. It is easy to put a referendum up for the 'people' to vote on.

 A few thousand signatures are usually all it takes.
    (I know, I did that- many times).

From the website:

Under Maya’s leadership, the future of legislative environmentalism is a bright one. In November 2021, with over 70% of voters in favor and Maya’s support, New York became the third state (joining Pennsylvania and Montana) to add a Green Amendment to its constitution, and there are active movements in over a dozen other states and counting.

This is "Democracy in action!" Right?

 But, as I said, I have seen this before and I seem to remember over 70% of Massachusetts and California voters using these same statistics to say NO to gay marriage.
Yet, the Gay Alliance managed to sue in court under the 14th Amendment and now???

Sooo, Democracy only works if it works for your particular banner waving constituents? If it does not, then sue in court. 

And this is exactly what Maya and the Green Amendment are doing.

"Well, it's all perfectly democratic if you are on the winning side."  Hyland.

New York State adopted this idea in 2021 as a referendum and was adopted by the State Legislature the following session in 2022.

NY: Environmental Rights Amendment Passed by Ballot Measure (natlawreview.com)

"On November 2, 2021, New York State voters passed a ballot measure enshrining in the State Constitution the right to a “healthful environment.” The new “green amendment” or “Environmental Rights Amendment” (ERA) places New York alongside six other states with similar provisions in their state constitutions, while several others have considered green amendments. These amendments may introduce new avenues for those aiming to enforce environmental laws in anticipation of harm and may invite novel environmental protection litigation claims."

It was going to be epic for New York! 

"Invite novel environmental protection litigation claims".

The entire operation was designed to shake down companies and it was sold to the populace as a form of Enviromental Awareness.

This thing has gone off the rails.

 Seneca Falls Landfill! Come on down! You are our next contestant on the Lawfare Television Show!

https://insideclimatenews.org/news/07082024/new-york-appellate-court-rejects-broad-application-of-green-amendment/

"In the High Acres case, a nonprofit group, Fresh Air for the Eastside Inc., sued the landfill’s owner, Waste Management Inc., the State Department of Environmental Conservation and the City of New York, which supplies most of the landfill’s garbage."

    Letitia James. Yep, The one and only took advantage of the newly christened Green Amendment in NY State and utilizing "novel environmental litigation." joined in the case to sue Seneca Falls Landfill because of the odors emitted from the state's largest landfill.
    But in an odd twist the case was returned upon appeal and eventually dismissed due to a number of legal wranglings including procedural errors which Maya Rossum found curious.

“I think it is notable that the Fourth Department chose to dismiss on procedural grounds and did not touch some of the most essential findings of the Supreme Court with regards to the New York Green Amendment, thereby still leaving in place essential findings such as the NY Green Amendment is self-executing and that the state is not entitled to disregard its constitutional obligations when it comes to environmental rights.”

    As a lawyer she, of all people should understand the importance of 'procedure'. But Maya wasn't finished. She did what any good activist would do. She got activated and got other activists to join in the chanting and sign waving.

From the site noted above:

Last month, van Rossum led a rally and march at the state Capitol in Albany to encourage state officials, including James and Gov. Kathy Hochul, to take a more active role in applying the Constitutional right as broadly as possible.

“We are here today to tell our New York leaders that our environmental rights are not discretionary. They are mandatory,” van Rossum said at the rally.

  Apply the Constitutional right as broadly as possible. Just what does that mean? 

    Listen Linda....

    We all want clean air, water, soil. We also have to live and exist in this modern world. During the turn of the 19th-20th century when the Industrial Revolution was still in its childhood there were many reasons to be concerned about the environment. There were basically no laws at all concerning waste. I stated before how rivers caught on fire. A famous case was the Cuyahoga River that burned for weeks because of the chemicals dumped indiscriminately. But we are not that society anymore. The laws and regulations set forth by Congress, Presidents and adopted by states (as well as their own rules) have given us all the potential for a better environmental future.
    And while Maya may claim that our environmental rights are 'mandatory', what about the rights of companies? What MORE do you want from them? 
    US companies already bear the costs of some of the highest business costs next to European nations. These costs include safety compliance for their workers as well as EPA regulations. All of it to ensure a safe, energy efficient and environmentally sound operation. Unions demand (and always get) a working environment that is second to none when it comes to safety.

This from the official EPA website:

https://www.epa.gov/laws-regulations/regulations#:~:text=Regulations%20are%20mandatory

EPA is called a regulatory agency because Congress authorizes us to write regulations that explain the technical, operational, and legal details necessary to implement laws. Regulations are mandatory requirements that can apply to individuals, businesses, state or local governments, non-profit institutions, or others. 

In many cases, state-level environmental agencies administer the federal regulations that EPA puts in place. The Gateway to State-by-State Resource Locators sponsored by EPA's Office of Enforcement and Compliance Assistance, provides access to state-by-state environmental regulations, compliance assistance, and where applicable, permits and forms for a variety of topics.

    We already have these rights in place. We have redundant agencies overseeing everything we do from our trash disposal at home to handling nuclear waste. The EPA has a laundry list of lawsuits they are working on to bring even the most minor of offenses like digging a drainage ditch on a farm (Sen. Rand Paul's book, 'Government Bullies') to declaring Superfund sites to court. The last thing we need is another activist group looking for their piece of the lawsuit money.

    And let us get down to brass tacks here: Isn't that what this whole thing is about?
    Who gets the money Maya? Just how is your organization funded exactly?

This we shall explore in Part II and possibly Part III as we learn about the Pennsylvania and Montana Amendment.

....And That Is The Diatribe....