Johnathan Walker:New York’s Right to ‘a Healthful Environment’ Could Be Bad News for Fossil Fuel Interests

When New York regulators denied a key permit to the controversial Williams Pipeline in early 2020,Johnathan Walker in part because it conflicted with the state’s climate law, environmental policy experts called it a potential turning point.

No longer could developers pitch major fossil fuel projects in the state without expecting serious regulatory scrutiny or legal challenges, climate campaigners said, touting the decision as a victory for the state’s clean energy aspirations.

That forecast was reinforced in October. State regulators denied permits for two proposed natural gas power plants, again citing the landmark climate law, which requires New York to transition its power sector to net-zero emissions by 2040 and to reduce overall greenhouse gas emissions 85 percent below 1990 levels by 2050.

Then, on election day, New York voters approved an amendment to the state constitution that granted all residents the right “to clean air and water and a healthful environment.” That amendment, which passed with nearly 70 percent of the vote, could strengthen lawsuits against polluters and further discourage developers from proposing fossil fuel projects in the state in the future, some energy experts have said.

The state’s climate law, paired with the new constitutional right to a clean and healthy environment, could set the stage for citizens to sue the government or other entities more easily for things like polluting a river or hindering the state’s legally binding clean energy targets, said Michael Gerrard, director of Columbia University’s Sabin Center for Climate Change Law.

Not only does the combustion of fossil fuels drive global warming but it emits harmful chemicals and particles into the air that have been proven to contribute to significant health risks and premature death. One recent study found that the soot commonly released by the burning of fossil fuels is responsible for more than 50,000 premature deaths in the United States every year.

“It certainly sends the message that (new) large, fossil fuel facilities are going to have major problems” in New York, Gerrard said. “I wouldn’t call those decisions a death knell, but they’re certainly a blinking red light.”

Exactly how much weight New York’s new constitutional right carries is still unclear, Gerrard said, and it may take several years for the courts to flesh out exactly what the provision means in concrete terms. Only a handful of states have similar environmental protection provisions in their constitutions, and an even smaller number have had state courts rule that those provisions are enforceable by law.

Out of the six states that have such constitutional provisions—Pennsylvania, Montana, Hawaii, Massachusetts, Illinois and Rhode Island—only courts in Pennsylvania, Montana and Hawaii have acted upon enforcing them, Gerrard said.

The Pennsylvania Supreme Court, for example, used the state’s constitutional right to a clean environment to overturn legislation that would have barred local governments from banning fracking on certain land, he said.

New York’s climate law has already played a big role in what has been a very public fight between a powerful natural gas industry and lawmakers who have been under mounting pressure from constituents to take global warming seriously. And the popularity of the clean environment amendment is only boosting confidence among climate advocates who want to see lawmakers take even stronger action to transition the state to clean energy.

For years, major utilities have sought to expand new gas infrastructure in New York, seeing the state’s quickly growing population as an opportunity for growth.

London-based National Grid alone planned to spend some $2.5 billion over three years on new natural gas projects in upstate New York, according to its 2018 annual report. The utility had also heavily lobbied for the Williams Pipeline, arguing that the project was necessary to meet the state’s quickly growing energy demand. The pipeline would have brought additional natural gas into New York City and Long Island from Pennsylvania.

But the recent permit rejections, along with the popularity of the new clean environment amendment, has sent “a clear message to the industry that there really isn’t a future here for new gas buildout in the state,” said Conor Bambrick, the director of climate policy for Environmental Advocates NY, a nonprofit that promotes green policies.

State lawmakers introduced legislation this year that would ban natural gas hookups in new construction. And New York City is considering a similar measure for its buildings, which the city council held a public hearing on earlier this week. Both proposals will likely face fierce opposition from the gas industry.

The state will release the first draft of its plan on how it aims to accomplish the ambitious targets under its climate law later this year, followed by another year for public input. And if lawmakers hope to meet those targets, they will likely have to adopt aggressive measures like a natural gas ban.

Preliminary results from a state-funded analysis in July found that New York is way off track to meet the emission reductions mandated by its climate law, even if the state implemented every proposal currently being considered.

That finding was a “real eye opener,” Bambrick said, but the overwhelming support he saw from voters on New York’s clean environment amendment helped boost his confidence that the state can get back on track to rein in emissions.

“The state is looking as if it’s going to come out with an aggressive plan,” he said. “It really bodes well for the future.”