Some NJ lawmakers want to make a healthy environment a constitutional right

Advocates for the environment and some lawmakers want New Jersey to make a healthy environment a constitutional right in order to safeguard clean air and water in the Garden State.

Assemblyman Tim Eustace (D-Lodi), head of the Assembly Environment Committee, recently announced plans to introduce a bill that, if passed, would put a constitutional amendment guaranteeing New Jerseyans the right to a clean and healthy environment on the ballot in Nov. of 2018 or 2019. 

“If we do not have these two basic necessities, nothing else matters. It is our most basic need,” Eustace said, emphasizing a need for states to uphold environmental protection policies that could be harmed by President Donald Trump’s administration.

Delaware Riverkeeper Network leader Maya van Rossum, author of  the book “The Green Amendment” that details the importance of the right to a healthy environment, said the bill would have a major effect on how the state legislature makes decisions. 

“If you’re protecting a constitutional right, it’s not good enough to say, ‘well, I issued this permit because it complied with some regulation,’” van Rossum said. “No matter what the scenario, if there’s environmental implications, you have to take that extra step and ensure it also will not infringe upon people’s environmental rights. To engage in that thinking, decision-makers have to consider the science, to look at local impacts from their decisions.”

The environmental right in the constitution would also be an important move for equality, van Rossum said. Passing the amendment would mean that every New Jersey resident would be granted the same right to the same treatment when it comes to the environment.

“Decision-makers have to seek to treat everybody equitably,” van Rossum said. “You can’t say, ‘oh, this part of Newark is already so polluted, let’s just put another industry there.’ But people who live there would now have the same rights as people in more pristine areas of the state.”

The issue of “environmental sacrifice zones” — areas, mostly in low-income and urban communities, that are environmentally damaged and polluted beyond repair — is prevalent in New Jersey and almost every other state, according to van Rossum.

The passing of an environmental rights amendment would allow citizens to challenge certain issues as unconstitutional, such as the contamination of water by a hazardous class of chemicals found in common consumer products like nonstick cookware and mattresses. A panel of scientists that advises the state government recommended last month that New Jersey impose strict limits on perfluorooctanic acid, or PFOA. The Delaware Riverkeeper Network was one of the strongest advocates for the regulations. Rossum argues that having a green amendment would protect communities from the next PFOA.

Similar legislation to the amendment proposed in New Jersey has passed in Pennsylvania and Montana over the past four years, leading to victories by environmental activists and citizens against fracking, over-development and water contamination, supporters of the legislation say.

It was only when the Delaware Riverkeeper brought legal challenges against pro-fracking legislation in 2012, which was ultimately decided in 2013, that the Pennsylvania Supreme Court reversed direction and breathed legal light into the state’s constitutional amendment, van Rossum said. “It declared the pro-fracking legislation on every part of Pennsylvania where you could have shale gas extractions unconstitutional,” she said.

Montana has had an environmental rights amendment since 1999, but van Rossum said it hasn’t been utilized to its full extent. There have been legal decisions based on the amendment though, for example when a development project was proposed and the testing of water wells could have led to spread of toxic fumes, van Rossum said.

“That project and the drilling of the well were prevented because of the environmental rights amendment, because citizens argued that it would contaminate people’s drinking water,” she said. “It’s good enough to have science to prove the outcome. We don’t have to wait for these kinds of events to happen, we can use our amendment to prevent it.”

Opponents of the bill may argue that constitution-based challenges to legislation could get out of hand if people appeal every bill that has implications for the environment, van Rossum said, but she insisted that Pennsylvania and Montana have not had that experience. “People won’t just start suing at the drop of a hat, like when someone drives their car to work,” she said. “The cases that are brought are cases where there are really serious environmental ramifications like water contamination, degradation, things that imperil people’s lives, health and safety. And that’s the appropriate use.”

Van Rossum, a resident of Bryn Mawr, Pennsylvania, said the strength of the amendment is still developing in her state. The first time the idea for the amendment came up was when former Sen. Franklin Kury proposed it in 1969. It remained buried for years until it was used to take down shale gas legislation in 2013.  

“Very often, people raise the question about Pennsylvania, ‘Aren’t they still fracking there?’ ” she said. “That’s an important question. It is happening now, but we believe we can stop that because of the constitutional provision. The reason it continues now is because we just brought that provision to life. It’s almost as if it was just passed in December 2013. We haven’t had enough time to pursue the advocacy, legislation, or vote for the right legislators to prevent fracking.”

Similar to how the meaning of free speech is still debated today, the meaning of the right to clean air and water will be debated in the future, van Rossum said. “There’s going to be a period of time where through advocacy, through litigation, we really flesh out and define what it means to have this right,” she said. “It’ll take a chunk of time.”