CSG Law Alert: A New Jersey Bill of Environmental Rights?

As was done in the last legislative session, New Jersey Assemblyman Tim Eustace (District 38 – Bergen and Passaic Counties) has introduced Assembly Concurrent Resolution (No. 85) in the 2018 – 2019 legislative session to amend the state constitution. If approved by the New Jersey Assembly and Senate by a simple majority in two separate legislative sessions, or with a 60% majority in a single session (approval by the Governor is not required), it could lead to voter approval of a “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.

The right to a “clean and healthy environment” would be enforceable in court in the same way as the rights of free speech and freedom of religion are enforced. However, the terms “clean and healthy environment,” “pure water, clean air and ecologically healthy habitats,” and “natural, scenic, historic, and esthetic qualities of the environment” are subject to interpretation. Likely, the State Supreme Court will be asked to define these terms and decide how rights provided by the amendment are enforced and protected.

New Jersey courts are not unacquainted with disputes over broad language in the state constitution. The constitutional phrase, “a thorough and efficient system of free public schools,” has been the subject of litigation since the 1970s. Will the New Jersey constitution be amended to include the environmental rights language found in the Assemblyman Eustace’s Resolution? Who knows – but if it is amended, there will be significant litigation over the Bill of Environmental Rights’ scope and reach.

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