A New York ballot proposal threatens doom for private property nationwide

This November, voters in eleven states will be asked to ratify new rights to clean air and water in their state constitutions.  If approved by unwary voters, these proposals could wreak havoc on other more important and long-established rights and launch litigation nightmares.

In New York State, for example, ballot proposal #2 asks voters to approve an Article I -- meaning a basic -- constitutional protection: the right to clean and water and a healthful environment.  These are simple words, meant to be appealing, but in reality, they are dangerously destructive to property rights, zoning, and businesses.

"Each person shall have a right to clean air and water, and a healthful environment."  Aspirational, undefined, and unattainable.  It's radical social policy camouflaged as environmentalism by New York state's out-of-control, radical Legislature.

Green constitutional amendments are not new; they have been proposed by environmentalists since the 1960s and rejected due to the robust and still growing body of statutory protections for the environment.  To date, only Pennsylvania and Montana have green constitutional amendments, both added in the 1970s, but neither elevates anything to a basic right.

Eleven states are currently considering a green amendment, including Maine, New Jersey, and Oregon.  But none has the devilish open-endedness of New York's Proposal #2.

Is there a consensus of the definitions of clean air and water and a healthful environment?  No.  These aspirational goals can't be clearly quantified, defined, or delivered.  New York's proposed amendment does not rely on the New York Legislature to define or limit the right.  According to legal analysts, the New York amendment gives great flexibility to the courts in New York to interpret and apply against other basic Article I rights.  Even the New York League of Women Voters warned of frivolous lawsuits, litigation against existing environmental regulations, and massive unfunded mandates.

New York's Proposal #2 exposes the state, its municipalities, and its citizens to the financially devastating depredations of class actions and liability lawyers.  While all of the other state amendments have safeguards against judicial abuse, including requirements for legislative approval, and are subject to reasonable limitations, New York's is open season for litigation mayhem.

It opens up the state to climate justice advocates whose agendas may be destructive to farms and small businesses.  New York's statutes provide little guidance on how and where to direct law enforcement, according to the National Law Review.  New York is going to be a free-for-all private right-to-action state.

Groups and individuals seeking "social justice" believe that green amendments will be tools for fighting racism and rebalancing inequities in low-income neighborhoods.  The Natural Resources Defense Council signals a warning: "People in low-income communities across New York currently live with toxic levels of air pollution and water contamination."

New York's amendment in particular is an insidious way to undermine property rights.  New York enshrines home rule in its constitution.  How will home rule stand up against green rights in a New York court?  All it will take is one left-leaning judge to override single-family zoning.

This is a particularly urgent question because New York's Westchester County was ground zero for the U.S. Department of Housing and Urban Development's nearly two-decade attempt to force the suburbs to accept multiple-family zoning in single-family-zoned areas.  A constitutional amendment in New York would give HUD new ammunition to reassert disparate impact under its Affirmatively Furthering Fair Housing policy.

School districts could also be at risk.  A number of politicians, including former governor Andrew Cuomo, have called for the regionalization of school districts, which have historically been defined by municipal borders.  In any heterogeneous suburban county, affluent districts could be paired with lower-income districts or even aggregated into large, county-wide systems.  In New York State, there is significant political opposition to combining school districts, but a new constitutional right to an equally "healthful" environment, whatever that means, might allow a judge to order combining school districts to achieve health equity.

Commercial and industrial construction have long been targets of green activists.  An open-ended, vaguely worded constitutional green amendment would provide anti-growth advocates with a powerful tool to stop pipelines, utility plant construction, and other types of development or force them to make expensive changes.  This would result in unfunded mandates, lost jobs, and population decline.

New York is also home to many agricultural industries, including dairies, orchards, and wineries.  These too, are sitting ducks for activists concerned about the impact on global warming — for example, due to flatulent cows producing methane.

New York's politicians make strident arguments for green amendments, as they have for other "reforms," like no bail, no prosecution of serious crimes, releasing convicted felons from prison, and defunding the police, all of which have had disastrous and provably unhealthy results, such as increased deaths from stray bullets and physical assaults.  Now they are after your basic rights at home, work, and school.

We all want a healthful environment, but let's not be fooled by the beguiling language that will result in the impoverishment and endangerment of us all.

Linda R. Killian is the chairman of a local Republican committee.

Image via Picryl.

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