STATE OF NEW JERSEY
INTRODUCED AUGUST 27, 2018
Senator LINDA R. GREENSTEIN
District 14 (Mercer and Middlesex)
Proposes constitutional amendment to make State trustee of public natural resources and guarantee to the people other environmental rights.
CURRENT VERSION OF TEXT
A Concurrent Resolution proposing to amend Article I of the New Jersey Constitution by adding a new paragraph.
Be It Resolved by the Senate of the State of New Jersey (the General Assembly concurring):
1. The following proposed amendment to the Constitution of the State of New Jersey is agreed to:
Amend Article I by adding a new paragraph 24 to read as follows:
24. (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.
2. When this proposed amendment to the Constitution is finally agreed to pursuant to Article IX, paragraph 1 of the Constitution, it shall be submitted to the people at the next general election occurring more than three months after the final agreement and shall be published at least once in at least one newspaper of each county designated by the President of the Senate, the Speaker of the General Assembly and the Secretary of State, not less than three months prior to the general election.
3. This proposed amendment to the Constitution shall be submitted to the people at that election in the following manner and form:
There shall be printed on each official ballot to be used at the general election, the following:
a. In every municipality in which voting machines are not used, a legend which shall immediately precede the question as follows:
If you favor the proposition printed below make a cross (X), plus (+), or check (a) in the square opposite the word "Yes." If you are opposed thereto make a cross (X), plus (+) or check (a) in the square opposite the word "No."
b. In every municipality the following question:
CONSTITUTIONAL AMENDMENT TO ENSURE THE PEOPLE'S ENVIRONMENTAL RIGHTS
Do you approve amending the Constitution to grant every person the right to a clean and healthy environment? The amendment would also require the State to protect public natural resources.
This amendment provides that every person has a constitutional right to a clean environment. This includes the right to clean air, pure water, and healthy habitats. The amendment would require the State to preserve public natural resources. The State would also be required to prevent others from destroying or damaging public natural resources.
This constitutional amendment shall become part of the Constitution on March 1 next following the general election at which it is approved by the voters.
This proposed constitutional amendment would prevent the State from infringing on the right to a clean environment, and would make the State the trustee of all public natural resources.
This proposed constitutional amendment would guarantee two separate rights in the people of the State. The first right is the right of citizens to the preservation of certain values of the environment. Specifically, this clause requires the State to consider the effect of any proposed action on pure water, clean air, and ecologically healthy habitats, and on the preservation of the natural, scenic, historic, and esthetic qualities of the environment, before taking action. The State may rely on agency determinations for the interpretation of "clean air" and "pure water," and other technical benchmarks; however, following agency interpretation does not automatically guarantee constitutional compliance if the agency interpretation and implementation fall below reasonable standards. This clause does not call for an end to all new economic development, or the sacrifice of other fundamental values like constitutionally-protected property rights. Rather, it preserves environmental values, and states that governmental action cannot take place without a reasonable effort to address the environmental effects of development.
The second right to be guaranteed by this proposed constitutional amendment is the common ownership of the people, including future generations, of New Jersey's public natural resources, with the State serving as trustee of those resources. This second clause applies to a narrower category of "public natural resources" than the first clause of the amendment and includes the waters, air, flora, fauna, climate, and public lands of the State. The term "public natural resources" is not exclusively defined and is amenable to change over time to conform to the development of new legal and societal concerns. The term is flexible and may capture the full array of resources implicating the public interest.
The State would serve as trustee of these public natural resources, with the people as named beneficiaries of the trust. "Trust" is used as a term of art to carry specific legal implications. This trust is more than a statement of government power to use public property for public purposes; it is an affirmation of the duty of the State to protect the people's common environmental heritage. The State may only surrender that right of protection in rare cases when the abandonment of that right is consistent with the purposes of preserving the trust. The explicit terms of the trust require the State to conserve and maintain the principal of the trust (i.e., the public natural resources) and impose a duty to prevent and remedy the degradation, diminution, or depletion of the public natural resources. The State has an obligation to carry out these trust responsibilities, whether through direct action, or through restraining private parties from acting.
As with the first right guaranteed by this proposed amendment, the duties to conserve and maintain are tempered by legitimate development tending to improve upon the lot of the citizenry, with the goal of promoting sustainable development. This amendment does not prohibit de minimis damage to the environment that does not impact the health of public natural resources. The beneficiaries of the trust are all the people of New Jersey, including generations yet to come. The State, as trustee, has the obligation to deal impartially with all beneficiaries, and must balance the interests of present and future beneficiaries. This implicates equitable access and distribution of public natural resources and reinforces the cross-generational dimension of the conservation imperative. Future beneficiaries are entitled to equal access and distribution of the resources, thus the State may not manage public resources in a manner that would deprive future generations of the same uses available to present generations. This recognizes the practical reality that environmental changes, while at times incremental, have a compounding effect and develop over generations. This proposed amendment offers protection equally against actions with immediate severe impact on public natural resources and against actions with insignificant present consequences that are actually or likely to have significant or irreversible effects when compounded over the long term.
The amendment is self-executing, and therefore does not require affirmative legislative action to take effect. The rights in this proposed amendment are in addition to any rights available under the public trust doctrine and common law. This constitutional amendment seeks to broaden the types of lawsuits that citizens may bring against the State (and any of its political subdivisions when they are acting) in order to enforce environmental values.
This proposed constitutional amendment is based in part on Pennsylvania's environmental rights amendment (Article I, Section 27 of the Pennsylvania Constitution).