Just over a year ago, the New York State Constitution was amended to include a right to a healthy environment. Since January 2022, Article 1, Section 19, the so-called Green Amendment to the New York State Constitution, states that “each person shall have a right to clean air and water, and a healthful environment.”
(Although the term healthful is used, rather than the more common word healthy, there is no significant legal or semantic distinction between the two.)
In spite of the advent of this new constitutional right, however, a glance at the busy intersection out the window provides plenty of examples of how this right is being violated.
Why isn’t it working? Is it just not being enforced? As always, it’s not just a matter of political will (another form of political power), or the lack thereof; it’s also a matter of interpretation. The Amendment is open to several. And it will no doubt be interpreted as narrowly as possible by the current order’s courts. In a time of ecological catastrophe, however, the prudent thing may be to interpret it as broadly as possible. Four points, in particular, ought to be stressed.
1) A constitutional right to a healthful environment is infringed when conditions that create and/or exacerbate disease are simply present.
Air and water pollution, as well as noise and light pollution, among other causes of stress, are obvious examples of empirically harmful conditions. Others include: the existence of cars (conventional as well as electric). Indeed, the very design of a city’s streets is itself often an unhealthful condition (or series of unhealthful conditions) that is maintained by the state. The existence of the institution of the police, as we see daily, is such an unhealthy condition as well.
2) The mere existence of an unhealthy condition violates the right to a healthful environment. As such, it must be corrected in order to eradicate the violation. This gives rise to a constitutional duty to correct unhealthy conditions.
3) An unhealthy condition can be the result of the presence of a harm (a harmful presence), or it can pose a harm because of the absence of a necessary condition of health (harmful absences). These two, of course, are dual aspects of a larger unity.
Where the air is polluted, for instance, we have a harmful presence. This implies, also, a harmful absence (the absence of clean air). But while harmful presences need to be removed, harmful absences need to be supplied.
4) Because the creation of a constitutional right to a healthful environment implies a constitutional duty, on the part of the state, to correct harmful conditions, where harmful presences exist, such as carcinogenic air, a constitutional duty arises to remove these.
In addition to removing harmful presences, a positive duty arises to remove harmful absences. This is accomplished by creating/providing those conditions whose very absence constitutes a harm (not in exchange for anything, but for its own sake — the sake of a healthy environment). This imposes a positive duty on the state to create healthful conditions.
Whereas harmful presences can be removed (e.g., removal of carcinogens from air) relatively simply, correction of harmful absences is more complicated. A healthy river, for instance, requires not the mere elimination of pollutants, but also the presence of an entire ecosystem: insects, fish, plants, etc. Where absent, these conditions must be produced/supplied to comply with the law.
5) In addition to clean air and water, harmful absences include the absence of such basic necessities as secure, peaceful, housing, nutritious food (of healthful qualities and quantities), and healthful transportation systems.
In other words, the duty to correct is two-fold; in addition to providing for the removal of positive harms, it gives rise to positive rights. According to a broad interpretation of the right to a healthful environment then, not just healthy air and healthy rivers, but healthy food, housing, and other basic elements of a healthful environment must be created/produced (where they are absent) in order to comply with the law.
Where basic conditions are absent, as mentioned above, the constitutional right (and duty of care) is violated. And because this is unconstitutional/illegal, it must be corrected. Those in power who fail to fulfill this basic duty, according to such an interpretation, would thereby be responsible for violating this right.
Such an interpretation, no doubt, is anathema to the reigning ideology, for it rejects (and ultimately criminalizes) economic development and economic growth in favor of ecological development and ecological growth (aka degrowth).
Economic development, however, has not only led us to the mass extinction event unfolding all around us, but has brought us to the precipice of an uninhabitable world. Ecological growth, on the other hand, beyond possibly reversing some of this damage, can bring about not just environmental health and justice, but justice in general.
