Posted on December 19, 2017 by John A. McKinney Jr

As this is written, a New Jersey legislator plans to introduce a bill that could lead to the amendment of the state constitution.  This amendment is being referred to the “Bill of Environmental Rights.”  Here’s the proposed language:

(a) Every person has a right to a clean and healthy environment, including pure water, clean air and ecologically healthy habitats, and to the preservation of the natural, scenic, historic, and esthetic qualities of the environment. The State shall not infringe upon these rights, by action or inaction. (b) The State’s public natural resources, among them its waters, air, flora, fauna, climate, and public lands, are the common property of all the people, including both present and future generations. The State shall serve as trustee of these resources, and shall conserve and maintain them for the benefit of all people. (c) This paragraph and the rights stated herein are (1) self-executing, and (2) shall be in addition to any rights conferred by the public trust doctrine or common law.

Unlike a law which requires compliance, this amendment will be used to obtain the “pure water, clean air and ecologically healthy habitats” guaranteed as a constitutional right, no different than the rights of free speech and freedom of religion.  Because it is not clear what a “right to a clean and healthy environment” actually means, state courts will have to decide the breadth and scope of such rights and the how they are protected. 

New Jersey courts can handle it.  They have dealt with similar broad language in the constitution which requires the legislature to provide “a thorough and efficient system of free public schools.”  That phrase has been fought over, in the courts and in the legislature, since the 1970’s.  It is still a hot button issue.

Will the New Jersey constitution ultimately include a Bill of Environmental Rights?  I am not sure but if it does, it will continue the state’s reputation as a great place to be an environmental lawyer.