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PROPS FOR PROP 2: Referendum Could Empower State’s Livable-Streets Advocates 

2:00 PM EDT on October 27, 2021

Change one thing (inset) and maybe change another.

Do you have a Constitutional right to breathe clean air? Not yet, you don't.

But on the ballot this Election Day is a simply worded — but oh, so complex — ballot proposal that would potentially give residents of the Empire State the legal standing to stop the environmental harms caused by the gas-guzzling cars and trucks that roll through their neighborhoods.

Proposition 2 — a yes-or-no vote on this single sentence, "Each person shall have a right to clean air and water, and a healthful environment" — is an amendment to the New York State Bill of Rights that would create a constitutional right to clean water, clean air, and a healthful environment. The amendment, proposed by Manhattan State Sen. Robert Jackson, mirrors similar rights already enjoyed by residents of Pennsylvania, Hawaii, Illinois and Massachusetts.

The text of the amendment may be simple, but it conceals an edifice of possible litigation. But one expert who has been advocating for the measure said it could make it easier for New Yorkers to push back against pollution sources — including traffic — that harm the air.

“Say there was a defined pollution hotspot with a heavy volume of diesel-truck traffic — the community could petition to the City Council to ask for relief," said Peter Iwanowicz, executive director of Environmental Advocates NY. "The government would then have to weigh [the] individual right to breathe air that doesn't cut lives short or make people sick. If they ignore the plea, people can say, ‘I’m taking you to court, I think you're violating my right to clean air.’”

Take the city’s open streets initiative. If opponents tried to end an open street and allow cars to resume their hegemony, other residents could sue under the new right in the Constitution, arguing, in short, “I have a new right to clean air," Iwanowicz said. 

Jackson said the proposal connects directly to the experience of residents of his upper Manhattan district, who suffer disproportionately from respiratory illnesses stemming from highways bisecting their communities — and Prop 2 could empower them for court fights. Streetsblog reported back in June that the New York City metro area suffers roughly 1,400 premature deaths each year — the highest death toll in the northeast — and loses billions in health-care costs, strictly because of the pollution caused by the tens of thousands of trucks, cars and buses that daily traverse the region, according to a Harvard and the University of North Carolina study.

“Generations of my neighbors have grown up with respiratory illnesses because of the air pollution, but we never had a say in the development of these highways,” Jackson told Streetsblog. "I think a case could be brought by Washington Heights families on the grounds of breaching this amendment once it's passed, and I would be excited to see that happen." 

The advocates who in 2019 fought for and passed the city's commercial-waste-zone equity bill, reforming the rogue carting industry and more equally distribute truck traffic and garbage disposal sites, could have used the proposed amendment to right those wrongs sooner, according to New York Lawyers for the Public Interest. 

We have worked to reform New York City's waste-processing system for decades due to the disproportionate impact truck-intensive polluting garbage facilities have on low-income neighborhoods and communities of color. Had this Amendment been passed years ago, it is possible that the residents in Jamaica could have challenged the original permitting of these facilities on those grounds," said Melissa Iachan, senior supervising counsel of environmental justice at New York Lawyers for the Public Interest. "Now, future generations will have this new inalienable right, which we know is as critical as any other constitutional right. This is one more tool in the advancement of long-delayed environmental justice."

The new amendment would not work retroactively and would affect only new permits and developments up for consideration. Shockingly, for the first time, officials would have to take into account a person’s right to clean air and water, according to Iwanowicz.

“I'm kind of astonished that a state like New York doesn’t already have this. I think it will have an immediate impact on local government, they will have to understand and develop zoning, land use plans that are more in line with the constitutional right than they do now. I don’t see it leading to fixing all the wrongs in the past," he said. 

But some amendment opponents say that it could encourage lawsuits against projects that provide a public good, such as a proposed development that offers affordable housing, but also includes many parking spaces

But Iwanowicz said he's not too worried because it would be hard to argue in favor of anything that contributes to more cars on the road, and therefore more pollution. 

“The climate crisis is inherently an unhealthy environment; it’d be a real stretch for somebody to say that," he said. "But I'm not saying someone can’t try."

If the amendment passes, New York State judges also might have to adjudicate a plan to site a high-voltage converter station in a Bronx park. Officials say the station could reduce the city's air pollution by up to 10 percent. If locals continue to fight the project, judges will have to weigh Bronx residents' concerns about the station's sitting on limited green space against its net good, and whether either option infringes upon New Yorkers' new constitutional right of access to clean water, clean air, and a healthful environment. 

And the New York League of Conservation Voters, a statewide environmental organization that fights for clean water and clean air, also endorsed the amendment.

“This will help keep our environment and our people healthy and provide a strong legal foundation preventing damage to the environment. This amendment is also essential to environmental justice communities so that all New Yorkers have the same degree of protection from environmental health hazards," said Julie Tighe, president of NYLCV, in a statement to Streetsblog. "The League urges all New Yorkers to vote yes on Prop 2 on November 2nd to demonstrate that New York values clean air and clean water to provide current and future generations with sustainable, healthy lives.”

Early voting started on Saturday and Election Day is Nov. 2. Find when and where to vote here.

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