357 The Private Litigation Impact of New York’s Green Amendment Evan Bianchi, Sean Di Luccio, Martin Lockman, & Vincent Nolette1 The increasing urgency of climate change, combined with federal environmental inaction under the Trump Administration, inspired a wave of environmental action at the state and local level. Building on the environmental movement of the 1970s, activists have pushed to amend more than a dozen state constitutions to include “green amendments”—self-executing individual rights to a clean environ- ment. In 2022, New York activists succeeded, and New York’s Green Amendment (the NYGA) now provides that “Each person shall have a right to clean air and water, and a healthful environment.” However, the power of the NYGA and similar green amendments turns on judicial interpretations of their scope. In the first decision to reach the issue, a New York trial court held, with little analysis, that the NYGA provides no private rights against private polluters. This conclusion could severely limit the reach and significance of state envi- ronmental rights. This article examines a single question: Does the NYGA grant private rights that are enforceable against private parties? In answering this question, we examine the 50-year history of private litigation under green amendments, the substance and historical context of the NYGA, and the broader structure of New York’s constitution and environmen- tal law. We conclude that the New York trial court got it wrong, and that the NYGA does provide a private cause of action against private parties. We further assess the indirect impact of constitutional envi- 1. The opinions expressed in this article are solely those of the authors, and do not neces- sarily represent the views of their employers or clients. Evan Bianchi is a member of Wiggin and Dana LLP’s appellate practice group; Sean Di Luccio is Assistant General Counsel at the New York City Department of Transportation; Martin Lockman and Vincent Nolette are Fel- lows at the Sabin Center for Climate Change Law at Columbia University. The authors would like to extend gratitude to their colleagues who graciously provided substantive and editorial feedback, including Katrina Kuh. The authors would also like to thank the New York City Envi- ronmental Law Leadership Institute for being the incubator that brought this article to life. Finally, the authors thank the members of the Columbia Journal of Environmental Law editori- al team who provided invaluable insight that greatly improved this article. 358 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 49:2 ronmental rights on private litigation, and conclude that the NYGA will have an enormous impact on private litigation generally, irrespective of whether New York’s courts reject private litigation under the NYGA. This discussion provides a novel evaluation of the shadow that consti- tutional changes cast on non-constitutional law. I. Introduction .................................................................................................. 359 II. Private Litigation under the NYGA: The Fresh Air Cases ............ 363 III. Private Litigation Under State Environmental Law ...................... 368 A. Private Litigation Under Other Green Amendments ................. 368 1. Montana: Explicit Private Obligation, Ambiguous Private Implication ............................................................................................. 370 a. The History and Structure of the MGA ................................... 370 b. Private Litigation under the MGA ............................................ 372 c. MGA as a Legal Obligation for Private Parties .................... 372 d. MGA as a Standalone Cause of Action ..................................... 375 2. Pennsylvania: No Explicit Private Obligation, Limited Private Implication ............................................................................................. 378 a. The History and Structure of the PGA .................................... 378 b. Private Litigation under the PGA .............................................. 380 c. PGA as a Limit on Private Property Rights ........................... 381 d. PGA as a Vehicle for Public Nuisance Claims ....................... 383 B. Private Litigation under New York’s Environmental Laws .... 384 1. The “Forever Wild” Provision ........................................................ 385 2. Private Actions under SEQRA......................................................... 387 3. Private Actions under other Environmental Laws ................ 389 IV. Revisiting the Fresh Air Cases ................................................................ 391 A. The NYGA Arises in a Unique Constitutional Context that Should Shape Its Interpretation ........................................................ 393 B. To the Extent Legislative History is Relevant, it Shows that the Legislature was Divided on Whether the NYGA Allows Suits against Private Parties. .......................................................................... 398 C. Comparison with other Green Amendments is Inconclusive.404 D. A Private Cause of Action under the NYGA is Consistent with New York’s Environmental Law ........................................................ 405 V. Suing in the Shadow of the Green Amendment .............................. 408 A. The NYGA and Contract ......................................................................... 408 1. Invoking the NYGA Against a Contract that Harms a Party410 2. Invoking the NYGA Against a Contract that Causes Third- Party Environmental Harm ............................................................. 412 B. The NYGA and the Common Law of Nuisance ............................. 415 2024] The Private Litigation Impact of New York’s Green Amendment 359 1. Constitutional Amendments and the Common Law ............. 416 2. Casting the NYGA’s Shadow on New York’s Common Law 419 VI. Conclusion ...................................................................................................... 422 I. INTRODUCTION On January 1, 2022, New York residents gained a new constitu- tional right. That right, born from five years of legislative struggle and approved in November 2021 by New York voters,2 consists of just fifteen words appended to the end of New York’s Bill of Rights: “Each person shall have a right to clean air and water, and a healthful environment.”3 This provision is commonly known as New York’s “Green Amendment” (NYGA). Many states, including New York, already addressed environmen- tal quality in their constitutions when the NYGA was passed.4 But only two other state constitutions had “green amendments,” which are “self-executing provision[s] placed in the declaration of rights section of a constitution” that guarantee individual, inalienable rights “to basic environmental essentials” like “clean and healthy wa- ter, air, environments, and a stable climate.”5 New York was the third state to adopt a green amendment,6 following Pennsylvania in 1971 and Montana in 1972.7 These preceding green amendments emerged in response to the environmental movement of the early 1970s, at a time when public awareness of pollution and pesticides drove a rare environmental bipartisanism at the state and federal level.8 2. See infra notes 31–32 and accompanying text (discussing the amendment process in de- tail). 3. N.Y. CONST., art. 1, sec. 19. 4. See infra Section III (discussing green amendments). 5. Id. at 27–28. 6. Id. at 28. 7. See infra Sections III(A)(1) & (III)(B)(1) (discussing the history of the Montana Green Amendment and the Pennsylvania Green Amendment, respectively). 8. See Robert V. Percival, Environmental Law in the Twenty-First Century, 25 VA. ENV’T L.J. 1, 2 (2007) (describing the “remarkable, bipartisan burst of legislative activity that created the regulatory infrastructure” of environmental law by 2007); Zygmunt J.B. Plater, From the Be- ginning, A Fundamental Shift of Paradigms: A Theory and Short History of Environmental Law, 27 LOY. L.A. L. Rev. 981, 981–983 (1994) (describing the new paradigm of “environmental con- sciousness” that arose from structural shifts “born of Rachel Carson in 1961, perhaps assisted unwittingly by Ronald Coase, [that] redefin[ed] the scope of how societal governance decisions should be made.”); see also RACHEL CARSON, SILENT SPRING (1962). 360 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 49:2 The NYGA emerges at another turning point for the environmental movement. The dire consequences of anthropogenic climate change have become increasingly apparent,9 and a majority of Americans now perceive, and feel threatened by, climate risks.10 A new para- digm of environmental law is emerging to address these challenges, and many have argued that state constitutional rights like the NYGA represent important tools in this effort.11 However, the significance of individual environmental rights, like those guaranteed by the NYGA, remains unclear. In the nascent years of the NYGA, one of several significant ques- tions has emerged: Does the NYGA enable private parties to seek re- lief for environmental harms against other private parties? This question is vitally important to defining the reach and impact of the NYGA. Some environmental scholars have already claimed that the NYGA could be used to ensure the fair distribution of environmental harms and benefits,12 “fill gaps” in environmental justice regimes,13 and allow citizens to more effectively fight climate change in the courts.14 Others, while acknowledging the potential for the NYGA to 9. See generally CLIMATE CHANGE 2023 SYNTHESIS REPORT: SUMMARY FOR POLICYMAKERS, INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE (2023), https://www.ipcc.ch/report/ar6/syr /downloads/report/IPCC_AR6_SYR_SPM.pdf [https://perma.cc/P38H-9KTT]. 10. See Jennifer Marlon et al., Yale Climate Opinion Maps 2023, YALE PROGRAM ON CLIMATE CHANGE COMMC’N (Jan. 23, 2024), https://climatecommunication.yale.edu/visualizations- data/ycom-us/ [https://perma.cc/648T-JFE3]. 11. See, e.g., Wendy Kerner, Making Environmental Wrongs Environmental Rights: A Consti- tutional Approach, 41 STAN. ENV’T L.J. 83 (2022) (arguing “that there should be a Green Amendment in each state constitution to advance environmental rights nationwide”); Samuel Brown, Green Amendments, 36 NAT. RES. & ENV’T 64, 64 (Fall 2021) (describing “the movement currently gaining steam to amend state constitutions to enshrine environmental-related pro- tections as fundamental rights.”). 12. See Rebecca Bratspies, “Underburdened” Communities, 110 CAL. L. REV. 1933, 1983 (2022) (describing the NYGA’s passage as a “historic” vote, and arguing that the NYGA “might be a game changer in terms of moving toward a commons-based environmental governance”); see generally Maya K. van Rossum & Kacy C. Manahan, Constitutional Green Amendments Mak- ing Environmental Justice A Reality, 36 NAT. RES. & ENV'T 27 (Fall 2021) (arguing that constitu- tional environmental rights like the NYGA are necessary to secure environmental justice for marginalized populations). 13. Alexandra Dapolito Dunn & Irma S. Russell, Inclusiveness: Advancing Environmental Jus- tice in A Diverse Democracy, JUDGES' J., 6, 8 (Fall 2023) (listing the NYGA among state legislative efforts that could “supplement existing federal [environmental justice] efforts and fill gaps”). 14. See Matthew Grabianski, What Held v. Montana Immediately Offers for Constitutional Environmental Rights, 11/16/2023 GEO. ENV’T L. REV. (Nov. 2023), https://www.law .georgetown.edu/environmental-law-review/blog/what-held-v-montana-immediately-offers- for-constitutional-environmental-rights/ [https://perma.cc/H8FU-3GAF] (discussing Held v. State, No. CDV-2020-307 (Mont. 1st Jud. Dist. Ct., Aug. 14, 2023), a landmark climate case hold- ing that a Montana law that excluded certain climate impacts from environmental review pro- 2024] The Private Litigation Impact of New York’s Green Amendment 361 affect environmental quality, have been hesitant to opine on its sig- nificance without a clearer picture of how courts will interpret it.15 Still others, while expressing skepticism about “the ability of indi- vidual plaintiffs to use [constitutional environmental rights] to avert climate change,”16 have emphasized that the significance of rights guaranteed by the NYGA often depends on the extent to which judi- cial systems allow individuals to assert them.17 Judicial interpretations of the NYGA will likely have impacts be- yond New York, because the NYGA represents a single drop in the wave of similar state environmental action across the country. Per- haps inspired by the Trump Administration’s rhetorical and regula- tory opposition to environmental protection,18 or spurred by the in- creasing urgency of climate action, many states have begun to consider similar environmental protections.19 In the first months of 2024, state legislators in at least nine states have proposed new con- cedures conflicted with the environmental rights in Montana’s constitution, and noting the NYGA among a list of state constitutional environmental rights that may allow plaintiffs in oth- er states to mimic the Held plaintiffs’ success). 15. See, e.g., Andrea White, Protecting Future Generations from Climate Change in the United States, 49 ECOLOGY L.Q. 501, 517 (2022) (declining to explore how the NYGA may be used to protect future generations from climate change “because it passed so recently that there is not yet significant case law attached to it”); Katherine Wilkin, Use with No Review: How Special Use Permits in Municipal Zoning Perpetuate Environmental Injustice in Fossil Fuel Infrastructure Sit- ing, 54 Colum. Hum. Rts. L. Rev. 952, 996–98 (2023) (highlighting how green amendments can protect rural environmental justice communities, but noting that it is “unclear” how courts will interpret the recently added NYGA). 16. Quinn Yeargain, Decarbonizing Constitutions, 41 YALE L. & POL’Y REV. 1, 50 (Spring 2023). 17. Id. at 48 (emphasis original) (noting that “[u]nless [environmental constitutional amendments] independently inspire state legislatures and executives to act, bills of rights re- quire that individual plaintiffs litigate their rights,” and criticizing the effectiveness of individ- ual litigation that “open[s] the door to judicial chicanery” and “puts the burden on individual people to assert their rights”). 18. See Uma Outka & Elizabeth Kronk Warner, Reversing Course on Environmental Justice Under the Trump Administration, 54 WAKE FOREST L. REV. 393, 396 (2019) (“tracing how the Trump Administration has explicitly and implicitly reversed course on environmental policies to the detriment of low-income communities of color”); Joel A. Mintz, Rolling Back and Losing Ground: EPA Regulation and Enforcement in the Trump Era, 46 VT. L. REV. 124 (2021) (discuss- ing weakened environmental enforcement during the Trump Administration); but see Joshua Ozymy & Melissa Jarrell Ozymy, All Dried Up: The Prosecution of Water Pollution Crimes During the Trump Administration, 35 TUL. ENV’T. L.J. 69, 87 (2022) (studying water pollution in the Trump Administration, and finding that “prosecutorial efforts can persist within the current regulatory and legal apparatus, even with [Trump’s] hostile presidential pressure against these agencies”). 19. See Active States, GREEN AMEND. FOR THE GENERATIONS, https://forthegenerations.org /active-states/ [https://perma.cc/GEW9-2SDA] (last visited Apr. 11, 2024) (discussing activist organizing around green amendments in 20 states, including three that currently have green amendments—New York, Montana, and Pennsylvania). 362 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 49:2 stitutional environmental protections,20 and provisions like the NYGA have been held up as examples for similar constitutional re- forms across the country.21 To the extent other states adopt amendments similar to the NYGA, the NYGA’s interpretation by New York courts will almost certainly inform the interpretation of those amendments.22 If the language of the NYGA is interpreted to be a powerful tool for protecting private environmental rights against private parties, that interpretation may help to shape state environ- mental movements across the country. Despite the potential importance of private litigation23 to the NYGA—and the flurry of cases that have attempted to assert envi- ronmental rights under the NYGA against both government actors and private entities—to date only one court has addressed the via- bility of private litigation under the NYGA. In Fresh Air for the Eastside v. State of New York (Fresh Air I), a New York trial court held that the NYGA creates a cause of action against government actors, but not private ones.24 That holding is supported by little substan- tive analysis and largely defers to an academic “explainer” that brief- ly opines on the issue.25 Given the national scope of the green amendment movement, and the potential significance of the NYGA within that movement, the conclusion reached in Fresh Air I—that private parties cannot sue other private parties under the NYGA— demands a more thorough examination. This article explores the implications of the NYGA for private envi- ronmental litigation, and argues that the Fresh Air I court was wrong: the NYGA does create private rights against private parties. In mak- 20. Drew Hutchinson, Green Amendments Gain Traction in More States Ahead of Elections, BLOOMBERG (Feb. 6, 2024), https://news.bloomberglaw.com/environment-and-energy/green- amendments-gain-traction-in-more-states-ahead-of-elections [https://perma.cc/6YNK-E5ZF]. 21. See Tyler Demetriou, Reinvigorating the Virginia Constitution's Environmental Provision, 40 VA. ENV’T. L.J. 66, 98 (2022) (discussing the possibility of amending Virginia’s constitution to include an environmental bill of rights); Johanna Adashek, Do It for the Kids: Protecting Future Generations from Climate Change Impacts and Future Pandemics in Maryland Using an Envi- ronmental Rights Amendment, 45 PUB. LAND & RES. L. REV. 113, 116 (2022) (arguing “that all states should adopt an [environmental rights amendment] to combat climate change”). 22. High courts of states with constitutional provisions modeled after New York’s often turn to New York law for guidance on how to interpret those provisions. See, e.g., West v. Thomson Newspapers, 872 P.2d 999, 1016–17 (Utah 1994); Jacobs v. Major, 407 N.W.2d 832, 842 (Wis. 1987). 23. Throughout this article, “private litigation” is used to refer to causes of action brought by private parties against private parties. 24. See Fresh Air for the Eastside, Inc. v. State (Fresh Air I), No. E2022000699, 2022 WL 18141022 (N.Y. Sup. Ct. Dec. 20, 2022). 25. See infra note 46. 2024] The Private Litigation Impact of New York’s Green Amendment 363 ing this argument, this article uses the lens of the NYGA to more broadly discuss the impact of constitutional changes cast on non- constitutional law. Part II discusses the NYGA and the Fresh Air cas- es. Part III looks at the wider history of state constitutional envi- ronmental rights that preceded the NYGA and examines private obli- gations under other states’ green amendments. Part III also situates the NYGA within New York’s existing framework of environmental laws and regulations. Part IV analyzes the text, purpose, and histori- cal context of the NYGA and concludes that the NYGA should be in- terpreted as independently enabling private litigation. Finally, Part V assesses the NYGA’s indirect impact on private litigation, and ar- gues that that the NYGA will have significant implications for private litigants, whether or not the amendment itself creates enforceable private obligations. II. PRIVATE LITIGATION UNDER THE NYGA: THE FRESH AIR CASES The NYGA is hardly a model of clarity. When the NYGA was added to the New York Constitution, it is likely that no one truly knew what it meant. The amendment’s overall sentiment is clear: it endows “each person” with individual rights to “clean air and water, and a healthful environment.”26 But what does it mean to have individual rights to “clean” air and water, or a “healthful” environment? How can those rights be enforced? Against whom? These questions were raised repeatedly in the New York legislature,27 and the answers provided suggested that the precise meaning of those words would be determined by… someone else. One legislator suggested that these questions would be resolved by “advocates and people that 26. N.Y. CONST. art. 1, § 19. As the Assembly sponsor of the NYGA put it: “It’s in the largest sense a proposed Constitutional Amendment that is an expression of optimism. It is intended to assure our citizens that they will not be betrayed circumstantially by environmental degra- dation, and that the health and well-being of they and their families will not be compromised due to governmental inaction or negligence that may otherwise damage our air, land or water.” Transcript of the New York State Assembly on February 8, 2021, at 31, https://www.bdlaw .com/content/uploads/2023/01/NYS-Assembly-Debate-Transcript-02-28-2021.pdf [https://perma.cc/B7KL-ZNJ3] (Assemb. Englebright). 27. See, e.g., Transcript of the New York State Assembly on April 30, 2019, at 42–45, https://www2.assembly.state.ny.us/write/upload/transcripts/2019/4-30-19.pdf [https://perma.cc/EUR9-GPZT] (Assemb. Stec raising concerns about the meaning of the NYGA). 364 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 49:2 [the NYGA] negatively or positively affects.”28 Another warned that the amendment’s ambiguity would shift authority from the legisla- ture to the courts that would ultimately define its meaning and scope.29 Despite this debate, the NYGA’s text—which was first introduced in 2017—was never modified.30 The NYGA was incorporated into the New York Constitution on January 1, 2022, after nearly five years of political process31 and with the approval of more than 70% of the 3 million New Yorkers who voted on the amendment.32 Almost immediately after the NYGA went into effect, a pair of cases in the New York Supreme Court of Monroe County (the Fresh Air cas- es)33 raised two questions that go to the heart of the NYGA: (1) Can plaintiffs sue to enforce their NYGA rights without enabling legisla- tion? (i.e., is the NYGA self-executing?), and (2) If so, can a private plaintiff assert a claim under the NYGA against a private defendant? Though these questions were answered in the Fresh Air cases, they are currently the subject of an appeal before the Appellate Division, 28. Transcript of the New York State Senate on January 12, 2021, at 142, https://legislation.nysenate.gov/pdf/transcripts/2021-01-12T11:15/ [https://perma.cc/9J99-C3PD] (Sen. Jackson). 29. Transcript of the New York State Assembly on April 30, 2019 supra note 27, at 30, (As- semb. Goodell). 30. Compare Assemb. 6279, 2017–2018 Reg. Sess. (N.Y. 2017) and S. 5287, 2017–2018 Leg. Sess. (N.Y. 2017) with Assemb. 2064, 2019-2020 Reg. Sess. (N.Y. 2019) and S. 2072, 2019-2020 Leg. Sess. (N.Y. 2019). 31. An amendment to the New York State Constitution must pass both houses of the legisla- ture in one legislative session and then must succeed in a second passage in the next session in front of a newly elected legislature, before then being voted on by the electorate. N.Y. CONST. art. XIX § 1. Following an initial unsuccessful attempt in the legislature (see Assemb. 6279, 2017–2018 Reg. Sess. (N.Y. 2017) and S. 5287, 2017–2018 Leg. Sess. (N.Y. 2017)), the amend- ment found success in the following 2019–20 legislative session. See Assemb. 2064, 2019- 2020 Reg. Sess. (N.Y. 2019); S. 2072, 2019-2020 Leg. Sess. (N.Y. 2019). The amendment was again proposed in both houses in the 2021–22 session, and again, the bills passed both houses. See Assemb. 3169, 2021-2022 Reg. Sess. (N.Y. 2021); S. 528, 2021-2022 Leg. Sess. (N.Y. 2021). The NYGA was sent for approval by the electorate on the 2021 ballot. N.Y. CONST. art. XIX § 1; see also Report on the 2021 Statewide Ballot Proposals, ASS’N. OF THE BAR OF THE CITY OF N.Y., https://www.nycbar.org/wp-content/uploads/2023/05/2020946-BallotProposals NYS2021.pdf [https://perma.cc/EFV8-63MN]. 32. 2,129,051 New Yorkers voted in favor of the NYGA, while 907,159 opposed it. See 2021 Election Results, Ballot Proposition 2, N.Y. BD. OF ELECTIONS, https://elections.ny.gov/2021- general-election-ballot-proposal-2-results [on file with the Journal]. 33. See Fresh Air I, No. E2022000699, 2022 WL 18141022 (N.Y. Sup. Ct. Dec. 20, 2022); Fresh Air for the Eastside, Inc. v. Town of Perinton (Fresh Air II), No. E2021008617, slip op. 34429 (N.Y. Sup. Ct. Dec. 8, 2022). https://perma.cc/9J99-C3PD 2024] The Private Litigation Impact of New York’s Green Amendment 365 Fourth Department,34 and will likely remain the subject of litigation in the coming years.35 The Fresh Air cases were brought by a non-profit called Fresh Air for the Eastside, Inc. (FAFE), less than a month after the NYGA came into effect. FAFE’s singular goal is to “restore the right to clean, fresh air” to Rochester’s eastside “by addressing the negative impacts caused by the High Acres Landfill on the climate and quality of life of its members and their children.”36 On January 28, 2022, FAFE brought suit against three public entities—the State of New York, the New York State Department of Environmental Conservation, and the City of New York—and one private entity—Waste Management of New York, L.L.C. (WMNY).37 FAFE asserted a single claim: “Violation of Article I §19 of the New York Constitution.”38 In that claim, FAFE alleges that its members are being deprived of their right to clean air and a healthful environment as a result of fugitive emissions and noxious odors traceable to a landfill owned and operated by WMNY.39 One week before initiating Fresh Air I, FAFE amended its petition in a related case (Fresh Air II) before the same court against the Town of Perinton, the Town of Perinton Zoning Board of Appeals, and WMNY.40 FAFE amended its petition—which is predicated on the similar facts alleged in Fresh Air I—to add a claim for violating the NYGA.41 The Fresh Air cases immediately tested the viability of private claims under the NYGA. Among many motions filed to dismiss FAFE’s petitions, two briefs directly addressed the issue of private litigation under the NYGA. First, in Fresh Air I, WMNY argued that the NYGA is not self-executing and that, even if it is, it does not give 34. See, e.g., Fresh Air for the Eastside, Inc. v. New York, No. CA23-00179 (N.Y. App. Div. Dec. 22, 2023). 35. The fundamental nature of these two questions makes it likely that these claims will arise repeatedly, as all defendants can raise the first and all private defendants can raise the second as bases to dismiss a claim brought under the NYGA. 36. About Us, FRESH AIR FOR THE EASTSIDE, INC., https://www.freshairfortheeastside.com /about-us [https://perma.cc/J9PP-32DB] (last visited Apr. 11, 2024). 37. See generally Brief of Defendant, Fresh Air I, No. E2022000699, 2022 WL 18141022 (N.Y. Sup. Ct. Jan. 28, 2022). 38. Id. at 26–29. 39. Id. at 28. 40. See Amended Verified Petition, Fresh Air II, No. E2021008617, slip op. 34429 (N.Y. Sup. Ct. Jan. 20, 2022). 41. Id. at 37–38. 366 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 49:2 rise to a cause of action against private parties.42 Second, in Fresh Air II, the Town of Perinton and Town of Perinton Zoning Board of Appeals argued that the NYGA does not create a private cause of ac- tion.43 On December 7, 2022, Justice John J. Ark issued a decision in Fresh Air I, dismissing FAFE’s claim against private defendant WMNY.44 The decision directly reached “whether the [NYGA] is self-executing and whether there can be direct action against private entities.”45 However, rather than addressing either question in detail, the deci- sion instead largely deferred to a 7-page “explainer” published on the website of the Albany Law School Government Law Center.46 The explainer suggests that the NYGA is self-executing and that it does not enable private litigation.47 On the latter point, the explainer opines that while “[t]he Amendment allows enforcement against the government, . . . [i]t appears less likely that the courts will allow an action to prevent pollution to be brought directly against private en- tities under the [NYGA].”48 The explainer’s authors reached this view by analogizing the NYGA to other sections of New York’s Bill of Rights: Article I, Section 11 provides that “No person shall because of race, col- or, creed or religion be subjected to any discrimination in his or her civil rights by any other person or any firm, corporation, or institution, or by the state or any agency or subdivision of the state.” (Emphasis added). In contrast, Article I, section 3, pertaining to the free exercise of religion, and Article I, section 8, protecting freedom of the press, make no reference to private entities and, with certain limited excep- 42. Waste Management’s Memorandum of Law in Support of its Motion to Dismiss at 3–10, Fresh Air I, No. E2022000699, 2022 WL 18141022 (N.Y. Sup. Ct. May 6, 2022). New York City asserted that “it is not clear that a claim can be asserted directly under the amendment at this juncture,” but did not expressly argue that a cause of action could not be brought under the NYGA. Id. at 19. 43. Memorandum of Law in Support of Motion to Dismiss at 24, Fresh Air II, No. E2021008617, slip op. 34429 (N.Y. Sup. Ct. Feb. 22, 2022). See also Reply Memorandum of Law in Further Support of Motion to Dismiss at 14, Fresh Air II, No. E2021008617, slip op. 34429 (N.Y. Sup. Ct. Mar. 29, 2022). WMNY joined the town and zoning board’s brief, but did not further argue that the NYGA does not apply to private parties, as it did in its initial memo- randum. 44. Fresh Air I at 11–13. 45. Id. at 12. 46. See id. (quoting Scott Fein & Tyler Otterbein, New York’s New Constitutional Environ- mental Bill of Rights: Impact and Implications, ALBANY L. SCH. GOV’T L. CTR. (2022), https://www.albanylaw.edu/government-law-center/new-yorks-new-constitutional- environmental-bill-rights-impact-and [https://perma.cc/Y729-TU7L]). 47. Id. 48. Id. 2024] The Private Litigation Impact of New York’s Green Amendment 367 tions, have been found to impose a restriction only on the govern- ment.49 This explainer persuaded Justice Ark, who implicitly accepted that the NYGA is self-executing, agreed with the explainer’s analysis that the NYGA does not allow actions against private entities because it makes no reference to private parties, and granted WMNY’s motion to dismiss.50 A day later, Justice Ark issued a decision in Fresh Air II that refused to dismiss FAFE’s NYGA claim against the town and zon- ing board, holding that the claim was applicable to events occurring after the NYGA was added to the Constitution on January 1, 2022.51 That decision cited an online lecture delivered at the New York State Bar Association’s annual meeting which referred to the rights pro- vided by the NYGA as “self-executing rights” that “are to be observed and respected by all branches of New York State government, includ- ing local governments, [and] public authorities.”52 The Fresh Air decisions represent the first—and for now, the on- ly—decisions addressing whether the NYGA is self-executing and whether it enables private plaintiffs to bring suits against private de- fendants. But they surely will not be the last. Multiple parties are currently appealing the Fresh Air I decision to the Fourth Depart- ment,53 and several other pending lawsuits in New York trial courts similarly assert private claims against private parties under the NYGA.54 These parallel cases suggest that, at least in the eyes of New 49. Id. (quoting N.Y. CONST., art. I, §11). 50. Fresh Air I, No. E2022000699, 2022 WL 18141022, at 12–13 (N.Y. Sup. Ct. Dec. 20, 2022). . 51. Fresh Air II, No. E2021008617, slip op. 34429 at 9 (N.Y. Sup. Ct. Dec. 8, 2022). 52. Id. (quoting NICHOLAS A. ROBINSON, NYS BAR ASS’N ANN. MEETING LECTURE OUTLINE: THE NEW ENV’T RIGHTS IN NY’S CONST. BILL OF RIGHTS 15–16 (2022)). While the lecture also suggested that a NYGA claim cannot be brought against a private party (based on the same comparison with Article I, Section 8 employed in the above-discussed examiner), the Fresh Air II decision did not reach that issue. 53. Note to early readers: this issue is subject to active litigation, and may require supple- mental analysis when an appellate decision is reached. 54. See, e.g., Complaint, Abdullahi v. City of Buffalo, No. 801476 (N.Y. Sup. Ct. Jan. 30, 2023) (asserting a NYGA claim against multiple defendants, including Veolia North America); Verified Petition and Complaint, Ass’n of Prop. Owners of Sleepy Hollow Lake, Inc. v. Green Cty. Indus. Dev. Agency, No. EF2023-573 (N.Y. Sup. Ct Aug. 8, 2023) (asserting a NYGA claim against mul- tiple defendants, including Flint Mine Solar, LLC). In Marte v. City of New York, the plaintiffs sought a declaratory judgment action under the NYGA against several private defendants. The court dismissed the petition on other grounds not related to whether the NYGA is self- executing (despite arguments from the defendants that it is not) or could be used to sue a pri- vate party. See Marte v. City of New York, No. 159068, slip op. 31198(U) at 9 (N.Y. Sup. Ct. Apr. 17, 2023) (“The Court’s decision in this case is limited. It merely finds that the Green Amend- ment cannot be used to bring challenges that were already unsuccessful and where the chal- 368 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 49:2 York environmental litigants, the questions raised in the Fresh Air cases are far from settled. III. PRIVATE LITIGATION UNDER STATE ENVIRONMENTAL LAW The NYGA was not introduced in a vacuum. When it was debated, put to a vote, and passed, it joined an extensive body of state envi- ronmental law—one that is, in many regards, shaped by private causes of action. This Part looks at the broader context of private environmental litigation that formed the backdrop for the NYGA. Section A discusses the broader national context of environmental rights and looks at the history of private litigation of constitutional environmental claims in the two other states with green amend- ments: Montana and Pennsylvania. Section B provides a brief over- view of private causes of action under New York’s other significant environmental laws and highlights the diverse ways in which New York legislatures and courts have incorporated, or excluded, private environmental litigation. A. Private Litigation Under Other Green Amendments The NYGA was not the first provision enshrining environmental rights in a state constitution (including New York’s). Most states ad- dress at least some environmental issues in their constitutions,55 and several states like Hawaii,56 Illinois,57 and Massachusetts,58 set out lenge is time-barred. The instant opinion does not stand for the proposition that the Green Amendment is merely a statement of principles.”). 55. See Rossum & Manahan, supra note 12, at 1–2 (noting that “44 states in the nation ad- dress the environment in their constitutions”). 56. The Hawaii Constitution states that “[e]ach person has the right to a clean and healthful environment, as defined by laws relating to environmental quality, including control of pollu- tion and conservation, protection and enhancement of natural resources. Any person may en- force this right against any party, public or private, through appropriate legal proceedings, subject to reasonable limitations and regulation as provided by law.” HAW. CONST. art. XI, § 9. A separate section charges “the State and its political subdivisions” with conserving natural re- sources and maintaining “[a]ll public natural resources . . . in trust . . . for the benefit of the people.” HAW. CONST. art. XI, § 1. 57. Illinois’ Constitution adopts a similar approach to Hawaii’s, providing that “[e]ach per- son has the right to a healthful environment. Each person may enforce this right against any party, governmental or private, through appropriate legal proceedings subject to reasonable limitation and regulation as the General Assembly may provide by law.” ILL. CONST. art. XI, § 2. However, the immediately preceding section charges the Illinois legislature with crafting laws to implement and enforce environmental rights. See ILL. CONST. art. XI, § 1. 58. The Massachusetts Constitution provides that “the people shall have the right to clean air and water, freedom from excessive and unnecessary noise, and the natural, scenic, historic, 2024] The Private Litigation Impact of New York’s Green Amendment 369 detailed constitutional environmental rights. Indeed, legal commen- tators, noting the ambiguity of the NYGA, looked towards interpreta- tions of other state environmental rights to assess how courts may understand whether the NYGA provided a private cause of action.59 Several of these rights are structurally similar to the NYGA, charac- terized by being (1) self-executing; (2) framed as a right on equal footing with other protected constitutional rights, like property; and (3) protective of “the inalienable right[] of all people . . . to basic en- vironmental essentials such as, but not limited to, clean and healthy water, air, environments, and a stable climate.”60 Maya van Rossum and Kacy Manahan, writing about the importance of green amend- ments, argue that they “contain the elements needed to give the greatest strength, guidance, and power for environmental and [envi- ronmental justice] protection,” and that other forms of constitutional environmental rights provide only limited “enforceable rights,” “rel- egate the vindication of environmental rights to the legislative pro- cess,” and derogate environmental rights where they conflict with “other fundamental rights [like] property.”61 The NYGA is the third environmental right to meet these criteria, after the Montana Green Amendment (the MGA) and the Pennsylvania Green Amendment (the PGA).62 Over the 50 years that the MGA and PGA have been in effect, courts in both states have repeatedly addressed assertions of constitutional environmental claims between private parties. This Section exam- ines the history of private litigation under the MGA and the PGA. While the constitutional decisions of other state courts do not bind interpretations of the NYGA, this litigation—and the structural dif- ferences between the MGA, PGA, and NYGA that it reveals—offers points of comparison for New York courts interpreting the NYGA. and esthetic qualities of their environment,” and grants the Massachusetts legislature “the power to enact legislation necessary or expedient to protect such rights.” MASS. CONST. art. XCVII. Unlike Hawaii and Illinois, Massachusetts’s Constitution is silent as to whether private causes of action arise under this environmental right. Massachusetts’ environmental clause specifies in greater detail what environmental rights a person has and instructs the legislature to pass laws to protect these rights. 59. Sheila Birnbaum et al., New York’s Green Amendment: How Guidance from Other States Can Shape the Development of New York’s Newest Constitutional Right, JDSUPRA (Nov. 15, 2021), https://www.jdsupra.com/legalnews/new-york-s-green-amendment-how-guidance- 2462721/ [https://perma.cc/AX77-3MSL]. 60. Rossum & Manahan, supra note 12, at 2. 61. Id. 62. See infra Sections (III)(A)(1) & (III)(B)(1) (discussing the history of the Montana Green Amendment and the Pennsylvania Green Amendment, respectively). 370 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 49:2 1. Montana: Explicit Private Obligation, Ambiguous Private Implication a. The History and Structure of the MGA Montana’s constitutional convention of 1972 enshrined environ- mental rights in two sections of the state constitution: Article II, Sec- tion 3, and Article IX, Section 1 (together, the MGA). Article II, Section 3 provides that, “All persons are born free and have certain inaliena- ble rights . . . [which] include the right to a clean and healthful envi- ronment . . . In enjoying these rights, all persons recognize corre- sponding responsibilities.”63 Article IX, Section 1, further provides: “(1) The state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations. (2) The legislature shall provide for the administration and enforce- ment of this duty. (3) The legislature shall provide adequate remedies for the protection of the environmental life support system from degradation and pro- vide adequate remedies to prevent unreasonable depletion and degra- dation of natural resources.”64 The plain text of both sections of the MGA places environmental obligations on “persons,” not solely on state actors. These clear tex- tual restrictions on private actors render the MGA a potentially pow- erful tool for restraining private activity that causes environmental damage. However, the fragmented text of the MGA adds ambiguity. Article II identifies “the right to a clean and healthful environment” as “inalienable,” and charges “all persons” with “corresponding re- sponsibilities.”65 Article IX contains an obligation to “maintain and improve a clean and healthful environment,” without referencing a corresponding right.66 Together, these two features created a chal- lenge in interpreting the MGA.67 Despite its potentially broad scope, the MGA went largely unused in the first three decades following the passage of Montana’s 1972 63. MONT. CONST. art. II, § 3. 64. MONT. CONST. art. IX, § 1. 65. MONT. CONST. art. II, § 3. 66. MONT. CONST. art. IX, § 1. 67. Contrary to Article II, Article IX does not speak of fundamental or inalienable rights. See Amber Polk, The Unfulfilled Promise of Environmental Constitutionalism, 74 HASTINGS L.J. 123, 139 (2022) (referencing the disconnect between Article II and Article IV as “a discrepancy that the Montana Supreme Court had to address in developing its constitutional environmental rights jurisprudence.”). 2024] The Private Litigation Impact of New York’s Green Amendment 371 constitution.68 However, in 1999, the Montana Supreme Court revis- ited the MGA in Montana Environmental Information Center (MEIC) v. Department of Environmental Quality. In MEIC, three nonprofit or- ganizations sued the Montana Department of Environmental Quality for making amendments to a private company’s mineral exploration license that allowed it to discharge contaminated groundwater into two aquifers. MEIC argued that the amendments were made without a required “nondegradation review,” and that even if the amend- ments were statutorily exempted from such review, the exemption violated the MGA.69 In reversing the District Court’s holding that the MEIC plaintiffs lacked standing to sue, the Montana Supreme Court held that the MGA was self-executing. Additionally, the court reasoned that “be- cause the right to a clean and healthful environment was included in Article II's ‘Declaration of Rights,’ it was a fundamental right, and strict scrutiny would apply to any statute or rule implicating that right.”70 Summarizing the MEIC court’s analysis of the MGA’s consti- tutional history, one recent scholarly review concluded that, “by add- ing the right to a clean and healthful environment to the list of inal- ienable rights, the delegates [to the Montana constitutional convention] made it unambiguous that it was a self-executing fun- damental right deserving of the highest level of protections.”71 Moreover, the MEIC court held that the environmental rights in Arti- cle II and Article IX “were intended by the constitution’s framers to be interrelated and interdependent and that state or private action which implicates either, must be scrutinized consistently.”72 Accord- ingly, the court would “apply strict scrutiny to state or private action which implicates either constitutional provision.”73 68. “Montana's constitutional environmental right received a brief glance from the Mon- tana Supreme Court in 1979 but otherwise remained in relative obscurity until the court re- vived it in 1999.” Polk, supra note 67, at 139 (citing Kadillak v. Anaconda Co., 602 P.2d 147 (Mont. 1979), superseded by statute, MONT. CODE ANN. § 75-1-102 (2015); see also Nathan Bellinger & Roger Sullivan, A Judicial Duty: Interpreting and Enforcing Montanans' Inalienable Right to A Clean and Healthful Environment, 45 PUB. LAND & RES. L. REV., June 2022, at 5 (“For 27 years following the adoption of Montana’s landmark constitutional right to a clean and health- ful environment, the Montana courts pursued a largely narrow interpretation of the state’s constitutional environmental protections, or avoided interpreting them all together . . .”). 69. Montana Env’t Info. Ctr. v. Dep’t of Env’t Quality, 988 P.2d 1236, 1238 (1999). 70. Bellinger & Sullivan, supra note 68, at 6. 71. Id. at 18 (summarizing the impact of MEIC). 72. Montana Env’t Info. Ctr. v. Dep’t of Env’t Quality, 988 P.2d 1236, 1246 (1999) (emphasis added). 73. Id. (emphasis added). 372 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 49:2 However, while the MEIC court found that the MGA creates expan- sive private rights and obligations, the court provided little guidance for resolving conflicts between Montana’s environmental rights and other constitutionally protected rights, like property rights.74 Con- fronting, or avoiding, those conflicts would shape the next 25 years of private party litigation under the MGA. b. Private Litigation under the MGA MEIC changed the landscape of litigation under the MGA. Prior to MEIC, the Montana Supreme Court had largely interpreted the rights in the MGA “as legitimizing the state’s exercise of its police power,”75 and the MGA was primarily referenced in defense of state environ- mental enforcement actions.76 MEIC, which emphasized the role of individual environmental rights under the MGA, led to a small surge in cases attempting to assert those rights.77 While the majority of these cases targeted actions by government actors, in the decade fol- lowing MEIC several plaintiffs attempted to assert constitutional en- vironmental rights in their disputes with other private parties. c. MGA as a Legal Obligation for Private Parties Two years after MEIC emphasized the environmental rights and obligations of private persons, the Montana Supreme Court invoked the MGA in the context of a contractual dispute between two private parties. In Cape-France Enterprises v. Estate of Peed, the court al- lowed a private company to rescind its agreement to sell a piece of 74. See Polk, supra note 67, at 148 (noting that while the Montana Supreme Court has “clearly anticipated future conflicts between the environmental right and other important rights (such as property rights),” it has had more difficulty “articulat[ing] a generalized test” to describe the contours of Montana’s environmental rights); id. at 141(“After the MEIC decision, the Montana Supreme Court developed its environmental rights jurisprudence in a series of smaller, scattered matters.”) . 75. Tammy Wyatt-Shaw, The Doctrine of Self-Execution and the Environmental Provisions of the Montana State Constitution: “They Mean Something”, 15 PUB. LAND L. REV. 219, 235 (1994). 76. See State v. Bernhard, 173 Mont. 464, 468 (Mont. 1977) (“Article II, Section 3, 1972 Montana Constitution declares that the right to a ‘clean and healthful environment’ is an inal- ienable right of a citizen of this state. Consistent with this statement and the cases cited, we hold that a legislative purpose to preserve or enhance aesthetic values is a sufficient basis for the state’s exercise of its police power.”); State ex rel. Dep’t of Health & Env’t Scis. v. Green, 227 Mont. 299, 305 (1987) (citing Bernhard for the proposition that a party’s “constitutional rights to acquire and possess real and personal property . . . must be balanced with the rights of the public,” including environmental rights under the MGA). 77. See Polk, supra note 67, at 139 (describing the post-MEIC cases). 2024] The Private Litigation Impact of New York’s Green Amendment 373 land when the company established that completing the sale could cause serious and unanticipated environmental harm. In doing so, the Montana Supreme Court established two key principles: (1) that the MGA created legal obligations for private parties which could be violated by private activity that harmed the environment; and (2) that, “absent a demonstration of a compelling state interest, the judicial power could not be invoked in a manner that would abet the violation of [the MGA].”78 Cape-France Enterprises owned a tract of land in Bozeman, Mon- tana, and agreed to sell five acres of the tract to two private individ- uals, Peed and Moore (together, the “Peed Defendants”), who wanted to build a hotel. As a condition of the sale, the parties attempted to subdivide and rezone the land,79 but they faced a number of compli- cations, including a “pollution plume” that was “spreading through the groundwater in Bozeman.”80 Montana’s Department of Envi- ronmental Quality (MDEQ) notified Cape-France that the subdivision “would not be approved unless a well was first drilled and tested,” but that new wells might spread the underground chemical plume, and the legal owner of the subdivision would be required by state and federal law to remediate any resulting contamination.81 This environmental hazard presented a serious obstacle to the sale. To fulfill the terms of the contract, the parties needed to drill a test well. However, the drilling of such a well could create significant environmental damage (and, not incidentally, expose the ultimate owner of the property to significant liability). Faced with this choice, Cape-France brought suit to rescind the agreement of sale, arguing that “the spread of the pollution and the potential liability involved with drilling a well rendered subdivision of the property impossible or impracticable.”82 The District Court granted summary judgment in favor of Cape-France, and the Peed Defendants appealed. On ap- peal, the dispositive issue was “Whether the District Court correctly concluded that the parties’ buy-sell agreement was unenforceable on the grounds of impossibility or impracticability, and correctly re- fused to order specific performance.”83 78. Bellinger & Sullivan, supra note 68, at 6–7. 79. Cape-France Enters. v. Est. of Peed, 305 Mont. 513, 514 (2001). 80. Id. at 515. 81. Id. 82. Id. at 516. 83. Id. at 514. 374 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 49:2 The Montana Supreme Court affirmed the District Court’s grant of summary judgment. In doing so, the majority opinion invoked the MGA in two important ways. First, the court noted that fulfilling the contract as written would require Cape-France to take actions that exposed the public “to potential health risks and possible environ- mental degradation.”84 The court held that, given the environmental obligations placed on private parties by the MGA, “it would be un- lawful for Cape–France…to drill a well on its property in the face of substantial evidence that doing so may cause significant degradation of uncontaminated aquifers and pose serious public health risks.”85 Second, the court held that ordering the remedy of specific perfor- mance requested by the Peed Defendants “would not only be to re- quire a private party to violate the Constitution—a remedy that no court can provide—but, as well, would involve the state itself in vio- lating [MGA].”86 These holdings suggest that MGA imposes signifi- cant environmental obligations on private parties. The Cape-France opinion was not unanimous, and attracted criti- cism both within the court and from outside commentators. Three Justices—Justice Leaphart,87 Justice Rice,88 and Chief Justice Karla Gray89—argued in a concurrence and separate dissents, respectively, that the majority should not have reached the constitutional issue. Chief Justice Gray, the strongest proponent of this point, argued that the parties did not present their case as raising a constitutional issue, and that the majority “improperly inserts a discussion of a critically important,” and underdeveloped, constitutional right.90 She further stated that the majority’s interpretation was “dicta in its entirety,” and warned that this dicta may improperly “take[] on a life of its own.”91 Similarly, an academic commentary written shortly after Cape-France admonished that “By neglecting to provide adequate analysis in Cape-France, the court left Montanans without parame- ters to design endeavors that will pass constitutional muster,” and 84. Id. at 519. 85. Id. at 520. 86. Id. 87. Id. at 521 (J. Leaphart, concurring) (“Having resolved the issue presented under the im- possibility of performance doctrine, I would not address the constitutional issues.”). 88. Id. (J. Rice, dissenting) (“I believe this case can and should be resolved without reaching the constitutional issues—and without the sweeping constitutional holding—reached by the majority.”). 89. Id. at 531 (C.J. Gray, dissenting) (same). 90. Id. 91. Id. 2024] The Private Litigation Impact of New York’s Green Amendment 375 might unleash a wave of opportunistic litigation as many real prop- erty contracts “could be tied to degradation of the environment.”92 Perhaps because of this criticism, the more than twenty-year-old de- cision in Cape-France remains the closest that the Montana Supreme Court has come to recognizing that the MGA could create substan- tive, rather than simply procedural, environmental rights and obliga- tions.93 d. MGA as a Standalone Cause of Action Despite the explicit burden that the text of the MGA places on pri- vate entities, and the Cape France court’s determination that private entities can violate the MGA by breaching those obligations, the MGA has had surprisingly little impact on the quintessential private envi- ronmental lawsuit: the environmental tort. Since MEIC and Cape- France, a handful of private litigants in Montana have attempted to sue private parties for environmental torts under the MGA itself. However, Montana’s courts have been leery of allowing the MGA to expand the remedies available to plaintiffs alleging private environ- mental torts. The Montana Supreme Court’s approach to constitutional tort claims under the MGA was first developed in 2007 in a pair of cases argued on the same day: Sunburst School District No. 2 v. Texaco, Inc. and Shammel v. Canyon Resources Corp. In Texaco, a Montana school district and “approximately ninety adjoining private property own- ers” sued Texaco, Inc. for damages to their property caused by gaso- line leaks from Texaco’s nearby refinery.94 The plaintiffs brought a number of claims against Texaco, “including trespass, strict liability for abnormally dangerous activity, public nuisance, violation of the constitutional right to a clean and healthful environment, wrongful occupation of property, and constructive fraud.”95 Following a full trial, the Montana trial court found Texaco strictly liable to the plain- tiffs as a matter of law for trespass and for “for conducting an ab- normally dangerous activity,” and issued a number of instructions to the jury on the remaining counts, including an “instruct[ion to] the 92. Chase Naber, Murky Waters: Private Action and the Right to A Clean and Healthful Envi- ronment an Examination of Cape-France Enterprises v. Estate of Peed, 64 MONT. L. REV. 357, 365 (2003). 93. See Polk, supra note 67, at 168. 94. Sunburst Sch. Dist. No. 2 v. Texaco, Inc., 338 Mont. 259, 263 (2007). 95. Id. at 266. 376 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 49:2 jury to award damages if Texaco had violated Sunburst’s constitu- tional right to a clean and healthful environment.”96 The jury subse- quently awarded the plaintiffs a wide range of damages, including “a single [combined] award of $226,500 for private nuisance, public nuisance and constitutional tort.”97 On appeal to the Montana Supreme Court, Texaco argued that the trial court improperly instructed the jury that it could “award mone- tary damages, pursuant to Article II, Section 3, of the Montana Con- stitution, for any alleged constitutional tort committed by Texaco.”98 Texaco argued that the constitutional right was not “self-executing,” and that the MGA did not create a stand-alone cause of action for monetary damages against private parties.99 In response, the plain- tiffs argued that the MGA established “a fundamental constitutional right” that imposed duties on private entities, and that a private cause of action against private parties for monetary damages was necessary “in order to vindicate” that right.100 The Montana Supreme Court, however, refused to resolve the gen- eral question raised by Texaco’s appeal—that is, whether MGA cre- ated a freestanding constitutional cause of action against private parties for environmental torts. Instead, the Texaco court noted that, while “the absence of any other remedy support[s] the establishment of a constitutional tort,” Montana has long held that “courts should avoid constitutional issues whenever possible.”101 On this basis, the Montana Supreme Court held “that the District Court erred in in- structing the jury on the constitutional tort theory where, as here, adequate remedies exist under statutory or common law.”102 In a concurring opinion, Justice James C. Nelson emphasized that he did not read the majority’s opinion as “rejecting, per se, a constitutional tort for violation of the fundamental right to a clean and healthful environment,” and recognized “that a future case may present a fac- tual and legal scenario that might well require us to address the con- stitutional tort theory on the merits.”103 96. Id. at 267. 97. Id. 98. Id. at 263. 99. Id. at 279 (citing Dorwart v. Caraway, 312 Mont. 1, 16 (2002)). 100. Id. at 279. 101. Id. 102. Id. at 280. 103. Id. at 288 (Nelson, J., concurring in part and dissenting in part). Another concurrence in part and dissent in part by Chief Justice Karla M. Gray argued that the majority had mischar- acterized Texaco’s position on appeal, and while the issue of MGA’s “self-executing” status was 2024] The Private Litigation Impact of New York’s Green Amendment 377 The Montana Supreme Court reaffirmed and clarified this position just fifteen days later in Shammel.104 There, three families who owned land downstream of a mine sued the mine operator and its parent company, both for allegedly contaminating their properties with a variety of chemicals and for diverting groundwater and stream flows from their properties in an effort to contain the con- tamination.105 Among other tort claims, the families asserted a dis- tinct right to recover money damages under the MGA, based on the operator’s alleged violation of their constitutional right to a “clean and healthful environment.”106 This claim was dismissed, and the families appealed. Unlike Texaco, Shammel raised only one question on appeal: “whether the constitutional right to a clean and healthful environment, Montana Constitution, Article II, Section 3, and Article IX, Section 1, provides for the recovery of money damages in a con- stitutional tort action between private parties.”107 The Montana Su- preme Court provided a clear, albeit still incomplete, answer: “Where adequate alternative remedies exist under the common law or statute, the constitutional right to a clean and healthful environ- ment does not authorize a distinct cause of action in tort for money damages between two private parties.”108 Subsequent decisions have repeated the holdings of Texaco and Shammel.109 While this line of cases leaves the door open for private constitutional torts under the MGA, the Montana Supreme Court has not articulated what, if any, circumstances might permit a plaintiff to bring such a claim against a private party. raised in oral argument, the core of Texaco’s appeal focused on whether the violation of a con- stitutional right could be considered in assessing damages under other causes of action. See id. at 300–06 (Gray, C.J., concurring in part and dissenting in part). 104. See generally Shammel v. Canyon Res. Corp., 338 Mont. 541 (2007). 105. Id. at 543. 106. Id. at 542. 107. Id. 108. Id. at 544–45. 109. See, e.g., Tally Bissell Neighbors, Inc. v. Eyrie Shotgun Ranch, LLC, 355 Mont. 387, 398 (2010) (affirming a judgment dismissing claims for monetary damages under the MGA brought by the neighbors of a shooting range who were purportedly harmed by its operation, since the plaintiffs “failed to demonstrate how common law or statutory remedies would not adequately address any potential damages.”). 378 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 49:2 2. Pennsylvania: No Explicit Private Obligation, Limited Private Implication a. The History and Structure of the PGA The PGA originated in Pennsylvania’s House of Representatives in 1970, and its language was finalized that same year.110 The PGA was placed up for a referendum in 1971 with the unanimous approval of Pennsylvania’s House and Senate, and approved for inclusion in the Constitution of the Commonwealth of Pennsylvania by nearly 80% of voters.111 The PGA, which was incorporated as Section 27 of Article I, the Declaration of Rights, provides that: The people have a right to clean air, pure water, and to the preserva- tion of the natural, scenic, historic and esthetic values of the environ- ment. Pennsylvania's public natural resources are the common prop- erty of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.112 Structurally, the PGA has two distinct clauses: the first sentence identifies an environmental right, and the second and third sentenc- es charge the Commonwealth of Pennsylvania with conserving pub- lic natural resources in trust as the “common property of all peo- ple.”113 The State Representative who drafted the amendment, Franklin Kury, intended the amendment to “promote citizen stand- ing, which had previously been conspicuously absent in Pennsylva- nia,” and give private individuals the “ability to challenge environ- mental incursions.”114 However, as Representative Kury acknowledged in a law review article written 20 years after the PGA’s enactment, “the Amendment . . . is silent on procedural issues that had to be addressed before the Amendment could be effective, such as: whether the Amendment is self-executing, what standards 110. See Franklin L. Kury, The Environmental Amendment to the Pennsylvania Constitution: Twenty Years Later and Largely Untested, 1 VILL. ENV’T L.J. 123, 123 (1991). 111. The amendment was approved by a vote of 1,021,342 in favor of the amendment to 259,979 against. See id. at 123 n.2 and accompanying text. 112. PA. CONST. art. I, § 27. 113. The Pennsylvania Supreme Court has cited with approval comments from the PGA’s legislative history that refer to the PGA as conceptually composed of “two separate bills,” albeit bills with a significant interpretive relationship. Robinson Twp. v. Commonwealth, 623 Pa. 564, 645 (Pa. 2013) (quoting 1970 Pa. Leg. J.-House 2269, 2272 (Apr. 14, 1970)). 114. Kury, supra note 110, at 124. 2024] The Private Litigation Impact of New York’s Green Amendment 379 to apply to enforce the Amendment, and who would be responsible for enforcing it.”115 For the first forty years of the PGA’s life, these procedural issues remained largely unanswered.116 In several early cases, Pennsylva- nia courts either reached inconclusive decisions about the “self- execution” question, or concluded that the PGA was self-executing, but interpreted the rights in the PGA “so narrow[ly] as to effectively render it unenforceable without legislative action—or, in other words, not self-executing.”117 In practice, some commentators have noted that early decisions treated the constitutional environmental rights guaranteed by the PGA as equivalent in importance to other government interests like economic development.118 In 2013, the Pennsylvania Supreme Court acknowledged the somewhat tangled line of precedents surrounding the PGA and charted a new course for the right.119 In Robinson Township v. Com- monwealth, a group of Pennsylvania municipalities, organizations, and citizens challenged Act 13, a revision to Pennsylvania’s Oil and Gas Law that changed permitting standards for oil and natural gas wells and prohibited “any local regulation of oil and gas operations, including via environmental legislation.”120 The plaintiffs alleged, among other claims, that Act 13 violated the PGA by preventing local governments from fulfilling their constitutional obligations as envi- ronmental trustees.121 “[T]he Commonwealth Court briefly dis- cussed and ultimately rejected” claims that Act 13 violated the PGA, holding that any such municipal obligation “derived from the Munic- ipalities Planning Code,” a statute, rather than from Pennsylvania’s constitution.122 On appeal, the Pennsylvania Supreme Court reversed the Com- monwealth Court’s holding and concluded that Act 13’s suspension of environmental laws violated the PGA. The court’s interpretation 115. Id. at 125. 116. Yeargain, supra note 16, at 36. 117. Id. 118. For an extensive discussion of this early line of cases, see Margaret J. Fried & Monique J. Van Damme, Environmental Protection in A Constitutional Setting, 68 TEMP. L. REV. 1369, 1390–99 (1995). 119. See Yeargain, supra note 16, at 40 (summarizing the intersection of Robinson and con- cluding that “[w]hile the court did not wholly displace the previous caselaw in the state . . . it largely discarded it.”). 120. Robinson Twp. v. Commonwealth, 623 Pa. 564, 587–88 (Pa. 2013). 121. Id. at 589. 122. Id. at 616 (quoting Robinson Twp. v. Commonwealth, 52 A.3d 463, 489 (Pa. Commw. Ct. 2012)). 380 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 49:2 focused on the second clause of the PGA, which charges the Com- monwealth of Pennsylvania with acting as trustee of public natural resources.123 The court found that the clause was self-executing be- cause it “speaks on behalf of the people, to the people directly, rather than through the filter of the people’s elected representatives to the General Assembly” and, in doing so, “create[s] a right in the people to seek to enforce the obligations” of the Commonwealth as trustee.124 Moreover, the court held that the PGA creates enforceable constitu- tional environmental obligations to the people at “all existing branches and levels of government,”125 and that the General Legisla- ture cannot “remove necessary and reasonable authority from local governments to carry out these constitutional duties” without as- suming the constitutional obligations itself.126 Subsequent scholars have characterized the decision in Robinson as “plac[ing] the envi- ronmental rights protected in section 27 on equal footing with the ‘political rights’ protected by the state constitution.”127 b. Private Litigation under the PGA Unlike the MGA,128 the plain text of the PGA does not explicitly im- pose any obligations on private actors. Clause 1 of the PGA describes environmental rights of “the people,” without describing corre- sponding responsibilities,129 and Clause 2 of the PGA directly charges the Commonwealth of Pennsylvania with conserving Pennsylvania’s public natural resources in trust for the people. As these clauses are read together,130 Pennsylvania’s courts have generally held that the 123. The majority opinion noted that, while rights under the first clause of the PGA may be implicated by Act 13, the appellants “ha[d] not developed arguments regarding the merits of such claims sufficient to enable [the court] to render a reasoned decision.” See id. at 683 n.56 and accompanying text. 124. Robinson Twp., 623 Pa. at 684. 125. Id. at 688–89. 126. Id. at 689. 127. Yeargain, supra note 16, at 39–40. 128. See supra text accompanying note 63. 129. Compare PA. CONST., ART. I, § 27, with MONT. CONST. ART. II, § 3 (emphasizing that, in en- joying the MGA’s right to a clean environment, “all persons recognize corresponding responsi- bilities”). 130. See Robinson Twp., 623 Pa. at 645 (noting that “the two paradigms, while serving dif- ferent purposes in the amendatory scheme, are also related and overlap to a significant de- gree” and citing with approval legislative history suggesting that the clauses should be inter- preted to operate cohesively). 2024] The Private Litigation Impact of New York’s Green Amendment 381 PGA “does not impose duties or obligations on private parties.”131 Nevertheless, the PGA has had some impact on litigation against and between private parties in one realm—private property disputes. c. PGA as a Limit on Private Property Rights Pennsylvania’s courts quickly recognized that the PGA might re- shape the boundaries of private property in Pennsylvania. In 1973, two years after the PGA’s passage, the Pennsylvania Supreme Court heard a case which argued that the PGA represented a limit on the use of private property. In Shapp v. National Gettysburg Battlefield Tower, Inc., the Commonwealth of Pennsylvania brought an action under the PGA to enjoin a private company from building an obser- vation tower on private land near Gettysburg Battlefield National Park. While no party alleged that the proposed tower violated any statutes or regulations, the Commonwealth claimed that PGA gave Pennsylvania the authority to enjoin private action that would dis- rupt “the natural, scenic, historic and esthetic values of the environ- ment,”132 and that the proposed tower represented “a despoilation of the natural and historic environment.”133 The Pennsylvania Supreme Court rejected this argument. While the majority opinion acknowl- edged that the PGA reshaped constitutional protections around pri- vate property rights,134 the court expressed concern that, if the PGA were deemed self-executing without implementing legislation, “a 131. Clean Air Council v. Sunoco Pipeline L.P., 185 A.3d 478, 494 (Pa. Commw. 2018); see also Feudale v. Aqua Pa., Inc., 122 A.3d 462, 466 (Pa. Commw. 2015) aff'd, 635 Pa. 267, 135 A.3d 580 (2016) (“The plain language of the Environmental Rights Amendment charges the Commonwealth, as trustee, with the duty to conserve and maintain Pennsylvania's public nat- ural resources, and we are unaware of any case law applying this duty to non-Commonwealth entities.”); but see Marques v. Bunch, 18 Pa. D. & C.3d 371, 388 (Pa. Com. Pl. 1980) (describing an individual’s dumping of farm waste as occurring “in violation of [the individual’s environ- mental] permit, the Clean Streams Law, and [the PGA]”). Marques is discussed below in more detail. See infra note 144 and accompanying text. 132. Commonwealth v. Nat'l Gettysburg Battlefield Tower, Inc., 454 Pa. 193, 197 (Pa. 1973). 133. Id. at 195. 134. This element of National Gettysburg Battlefield Tower has been emphasized in recent constitutional litigation in Pennsylvania. See League of Women Voters of Pennsylvania v. Boockvar, 247 A.3d 1183 (Pa. Commw. Ct. 2021), aff’d sub nom. League of Women Voters of Pennsylvania v. DeGraffenreid, 265 A.3d 207 (Pa. 2021) (noting that “[e]very amendment must have some impact on other provisions of the Constitution, or it would be surplusage,” and that the Pennsylvania Supreme Court had “observed that the Environmental Rights Amendment, Pa. Const. art. I, § 27, impacted property rights protected by the United States and Pennsylva- nia Constitutions.”). 382 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 49:2 property owner would not know and would have no way, short of expensive litigation, of finding out what he could do with his proper- ty.”135 In a dissent joined by Justice Eagean, Chief Justice Jones ar- gued that, unlike other state environmental rights cited by the ma- jority, the PGA contains no language directing the legislature to enact implementing statutes, and so should be construed as a direct limita- tion on the use of private property.136 For forty years following National Gettysburg Tower, few litigants attempted to invoke the PGA in property disputes. That pattern changed in 2013 when, as previously discussed, the Pennsylvania Supreme Court reversed course in Robinson and declared the PGA to be self-executing.137 Following Robinson, a number of individuals, organizations, and local governments have launched collateral chal- lenges against private actors by arguing that the PGA limits the au- thority of Pennsylvania governments to permit environmentally harmful uses of private property like fossil fuel extraction and pipe- lines development.138 The challenges have been largely unsuccessful for a variety of reasons,139 including plaintiffs’ difficulties in “proving a legally cognizable harm”140 and courts’ reluctance to police inac- tion by one Commonwealth government entity where another is al- ready actively regulating the environmental harm in question.141 135. Nat’l Gettysburg Battlefield Tower, Inc., 454 Pa. at 202–03. 136. Id. at 209-10 (1973) (Jones, J., dissenting) (“That the language of the amendment is subject to judicial interpretation does not mean that the enactment must remain an ineffectual constitutional platitude until such time as the legislature acts.”). 137. See Robinson Twp. v. Commonwealth, 623 Pa. 564, 684 (Pa. 2013). 138. These litigants have seen the PGA as “a pathway by which these groups can challenge agency actions in which they were previously not considered interested parties.” Tara K. Righetti, The Incidental Environmental Agency, 2020 UTAH L. REV. 685, 733 (2020) (noting that recent PGA decisions “have emboldened individuals and municipalities to challenge oil and gas and other industrial permitting activities”). 139. See John C. Dernbach, Thinking Anew About the Environmental Rights Amendment: An Analysis of Recent Commonwealth Court Decisions, 30 WIDENER COMMONWEALTH L. REV. 147, 169 (2020) (collecting cases, and noting that “[i]n the cases decided thus far, the Commonwealth Court has rejected all [PGA] challenges to local government decisions permitting shale gas de- velopment.”); Id. at 175 (“The [PGA] cases involving pipelines tend to involve local zoning au- thority. In these cases, however, the [PGA] claimants have all lost.”). 140. Id. at 169. 141. See id. at 169–174 (summarizing challenges to local government inaction on shale gas production). 2024] The Private Litigation Impact of New York’s Green Amendment 383 d. PGA as a Vehicle for Public Nuisance Claims The PGA has also served as the basis of claims against private par- ties for public nuisance. Under the Second Restatement of Torts, which courts in Pennsylvania apply, a public nuisance is “‘an unrea- sonable interference with a right common to the general public,’ such as the right to clean public water and fresh air in public spac- es.”142 Private plaintiffs can sue to enjoin a public nuisance if the “property or civil rights” of such private plaintiffs are specifically and significantly injured by the nuisance, “over and above the injury suf- fered by the public generally.”143 One early Pennsylvania public nuisance case, Marques v. Bunch, went so far as to hold that the PGA itself creates a private obligation to protect natural resources. In 1980, Anthony Marques sued a neighboring farmer, Dewey Bunch, Jr., for a variety of environmental torts arising from Bunch’s alleged dumping of contaminants on neighboring lands, in public waterways, and in groundwater reser- voirs. Finding that Bunch had created a public nuisance through this contamination, the Bucks County Court of Common Pleas held, with- out comment on the unprecedented nature of the ruling, that a pri- vate farmer’s “sludge dumping activities have resulted in the pollu- tion of both surface waters and groundwaters of the Commonwealth in violation of Bunch’s permit, the Clean Streams Law, and Pa. Const., Art. 1, §27.”144 Marques does not explicitly elaborate on the relation- ship between the PGA and the relief granted, but discussion throughout suggests that the PGA may have represented a statement of public policy that factored into the common-law public nuisance calculus.145 Five years later, another case, PECO v. Hercules, Inc., again raised the intersection of the PGA and public environmental nuisance.146 In 1973 the Philadelphia Electric Company (PECO) discovered chemical contamination in the Delaware River originating from a piece of land PECO acquired. In 1980 the Pennsylvania regulatory authorities also discovered chemical contamination in the Delaware River originat- 142. Baptiste v. Bethlehem Landfill Co., 965 F.3d 214, 220 (3d Cir. 2020) (quotations and citations omitted). 143. Pennsylvania Soc. for Prevention of Cruelty to Animals v. Bravo Enterprises, Inc., 237 A.2d 342, 348 (Pa. 1968). 144. Marques v. Bunch, 18 Pa. D. & C.3d 371, 388 (Pa. C.P.. 1980). 145. See id. at 382–84. 146. Philadelphia Elec. Co. v. Hercules, Inc., 762 F.2d 303, 315 (3d Cir. 1985). 384 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 49:2 ing from a plot of land owned by PECO and required the company to conduct environmental remediation. PECO sued the party that had sold it the contaminated land for its remediation costs, and was eventually awarded damages under theories of private and public nuisance. One of the defendants, Hercules, Inc., appealed the verdict to the Third Circuit. Hercules challenged both theories of liability. Applying the Second Restatement of Torts and the doctrine of caveat emptor, a panel of the Third Circuit held that private nuisance was unavailable to PECO because the relationship between the parties was governed by a chain of contractual transfers, not by tort.147 However, in so ruling, the court noted that the PGA creates a public “right to ‘pure water,’” and that “[i]f PECO—as a riparian landowner—had suffered damage to its land or its operations as a result of the pollution of the Dela- ware, it would possibly have a claim for public nuisance.”148 These cases suggest that individual plaintiffs in Pennsylvania can use public nuisance claims to enjoin certain violations of the envi- ronmental rights protected by the PGA. However, it is worth noting the relative obscurity of these cases. Marques is an outlier decision by a trial court and may be of limited precedential value.149 While Hercules is a higher-profile case, its language around the intersection of the PGA and public nuisance provides an example rather than an analysis of the facts before the court, and therefore may be consid- ered dicta. Nevertheless, these cases present one possible path for asserting rights under the PGA against private polluters. B. Private Litigation under New York’s Environmental Laws The NYGA has counterparts and comparisons within New York, as well as in other states. When the NYGA was enacted, it joined a well- established body of state environmental law, with statutory roots 147. In particular, the court held broadly that the purchaser of real property could not as- sert a claim of private nuisance against a remote seller “where there has been no fraudulent concealment,” as this “would in effect negate the market's allocations of resources and risk.” Id. 148. Id. at 316. 149. Contemporaneous plaintiffs who initially asserted rights under the PGA dropped those claims in favor of common law nuisance and negligence claims, see O'Leary v. Moyer’s Landfill, Inc., 523 F. Supp. 642, 646 n.1 (E.D. Pa. 1981), and Marques has not been raised by other courts addressing private liability under the PGA. See Feudale v. Aqua Pa., Inc., 122 A.3d 462, 466 (Pa. Commw. Ct. 2015) aff'd, 635 Pa. 267 (Pa. Sup. Ct. 2016) (“[W]e are unaware of any case law applying [duties under the PGA to protect public natural resources] to non-Commonwealth entities.”). 2024] The Private Litigation Impact of New York’s Green Amendment 385 stretching back to the nineteenth century.150 While these state envi- ronmental laws take a variety of forms and serve a wide range of functions, they share one thing in common with the NYGA: they have inspired creative lawsuits brought by private litigants seeking to rec- tify private environmental harms. The purpose of this Subsection is to give an overview of the many various ways by which New York’s key environmental laws support, or reject, private environmental claims against private actors. First, it examines private actions under New York’s other constitutional environmental provision, the “Forever Wild” provision. Next, it looks at private litigation under one of New York’s most significant environmental statutes, the State Environmental Quality Review Act. Finally, it provides a high-level overview of private causes of action in New York’s other environmental laws. In each case, analysis of private actions reveals the same pattern—New York courts are re- luctant to allow private environmental actions under environmental laws that do not create explicit private rights or that specifically grant enforcement rights to the state. 1. The “Forever Wild” Provision While the NYGA is the first time New York’s constitution has guar- anteed individual environmental rights, it is not the only environ- mental clause in New York’s constitution. In the nineteenth century, an early environmental law—The Forest Preserve Act of 1885—was enshrined in the New York Constitution shortly after its passage.151 The Forest Preserve Act, and the subsequent constitutional provision that came to be known as the “Forever Wild” provision, created the Adirondack and Catskill Forest Preserves.152 In so doing, the provi- sion proclaimed that those areas “shall be forever kept as wild forest lands.”153 150. See generally, THE LIBRARY OF CONGRESS, THE EVOLUTION OF THE CONSERVATION MOVEMENT, 1850-1920, https://memory.loc.gov/ammem/amrvhtml/cnchron2.html (last visited Apr. 9, 2024). This Subsection does not discuss private environmental litigation under New York’s common law, which is addressed below (see infra Section IV.B), and has even deeper roots. 151. Daniel G. Payne & Richard S. Newman, “Forever Wild” Provision of the New York State Constitution (Constitutional Convention of 1894), in THE PALGRAVE ENVIRONMENTAL READER (2005) (explaining that due to loopholes in the Forest Preserve Act, a group of conservationists at the 1894 New York Constitutional Convention led a campaign to insert a fully protective “forever wild” clause into the State constitution.). 152. Id. 153. Article XIV, section 1 of the New York Constitution states in part, “[t]he lands of the state, now owned or hereafter acquired, constituting the forest preserve as now fixed by law, 386 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 49:2 In stark contrast to the 15-word NYGA, the “Forever Wild” provi- sion is almost excessively detailed. The Forever Wild provision con- tains more than 2,200 words, and explicitly bars both public and pri- vate parties from developing or exploiting specified forest preserves, subject to lengthy exceptions.154 Unlike the NYGA, the Forever Wild provision contains explicit enforcement mechanisms. Article XIV, section 5 provides that violations of the Forever Wild provision “may be restrained at the suit of the people or, with the consent of the su- preme court in appellate division, on notice to the attorney-general at the suit of any citizen.”155 While this enforcement mechanism permits some suits between private actors, these suits are better characterized as quasi-qui tam actions rather than as true private lit- igation. New York courts have made clear that citizen plaintiffs who sue under the Forever Wild provisions are acting in place of the At- torney General to enforce the rights of the public, rather than assert- ing their own rights.156 In practice, citizen suits under the Forever Wild provisions are rare,157 and as the Forever Wild provision binds both state officials and private actors, citizens more frequently sue state officials directly for alleged failures to comply with or enforce the Forever Wild provisions.158 shall be forever kept as wild forest lands. They shall not be leased, sold or exchanged, or be taken by any corporation, public or private, nor shall the timber thereon be sold, removed or destroyed.” N.Y. CONST. art XIV, § 1. 154. See id. (stating that protected lands “shall not be leased, sold or exchanged, or be taken by any corporation, public or private”); see also State v. Moore, 114 N.Y.S.3d 781, 782 (N.Y. App. Div. 2020) (citing the Forever Wild provision to support the claim that certain private development on disputed land “would be prohibited if it were, as [the State of New York] claimed, state-owned forest preserve land.”); see also Jorling v. Adirondack Park Agency, 173 N.Y.S.3d 385 (N.Y. Sup. Ct. 2021), rev’d on other grounds, 185 N.Y.S.3d 354 (N.Y. App. Div. 2023) (describing the Forever Wild provision as a “constitutional prohibition against a private per- son or entity occupying [certain protected] lands and waters[.]”). 155. N.Y. CONST. art. XIV, § 5. 156. New York courts have described this private cause of action as “a secondary right” that is exercisable “if the Attorney-General defaults” in her obligations to restrain violations of the Forever Wild provision. People v. System Properties, Inc., 281 A.D. 433, 445 (N.Y. App. Div. 1953). 157. This, apparently, has always been the case. See Daniel W. Coffey, A Critique of New York's Proposed Private Environmental Law Enforcement Act, ALB. L. ENV’T OUTLOOK, Fall 1995, at 23,24 (“the constitutional citizen suit is seldom invoked and little litigation has arisen under it.”). 158. See Nicholas A. Robinson, Updating New York’s Constitutional Environmental Rights, 38 PACE L. REV. 151, 181 n.100 (2017) (noting that “Article XIV is subject to judicial enforcement via an Article 78 proceeding,” and citing several recent citizen suits against New York officials for failures to uphold the Forever Wild provision). 2024] The Private Litigation Impact of New York’s Green Amendment 387 2. Private Actions under SEQRA In addition to its two constitutional environmental provisions, New York law contains an extensive body of environmental statutes. The most well-known of these is the State Environmental Quality Review Act (SEQRA), which creates a rigorous environmental review process meant to minimize the adverse effects of government action on the environment.159 SEQRA was passed in 1975 as a response to the federal National Environmental Policy Act (“NEPA”).160 Largely mirroring NEPA’s federal environmental review requirements, SEQRA requires any state entity that is either taking or approving an action with a potentially significant environmental impact to prepare an assessment identifying the potential adverse environmental im- pacts of that action.161 Unlike NEPA, which requires environmental review but does not dictate substantive outcomes,162 SEQRA fre- quently requires state officials to take affirmative actions to avoid environmental harm.163 For example, SEQRA directs agencies to take steps that, “to the maximum extent practicable, minimize or avoid adverse environmental effects” of state actions.164 While SEQRA outlines extensive environmental review processes for government actors, it “contains no provision regarding judicial review” and no provisions for enforcement.165 Nevertheless, private 159. N.Y. COMP. CODES R. & REGS. tit. 6, § 617 (2024). 160. Matthew A. Sokol, Enacting SEQRA: The Legislative Debates and a 25-Year Look Back, 11 ENV’T L. IN N.Y. 13, 16 (2000) (quoting Governor Hugh Carey). 161. SEQRA is a complex statutory and regulatory regime, and this summary elides a signif- icant amount of detail that is outside of the scope of this Article. For an overview of the struc- ture and requirements of SEQRA, see N.Y. DEPT. ENV’T CONSERV., THE SEQR HANDBOOK (4th ed. 2020) https://extapps.dec.ny.gov/docs/permits_ej_operations_pdf/seqrhandbook.pdf [https://perma.cc/J5Z3-U25A]. 162. See Ray Vaughan, Necessity and Sufficiency of Environmental Impact Statements under the National Environmental Policy Act, in 38 AMERICAN JURISPRUDENCE PROOF OF FACTS 3D 547 (Feb. 2024 update) (“NEPA is a procedural statute only; it makes no substantive demands on the federal agencies” and “mandates no particular result from the consideration of environ- mental impacts, but only that those impacts be identified and considered.”). 163. See Jackson v. New York State Urb. Dev. Corp., 67 N.Y.2d 400, 434 (N.Y. 1986) (“SEQRA is not merely a disclosure statute; it “imposes far more ‘action-forcing’ or ‘substan- tive’ requirements on state and local decisionmakers than NEPA imposes on their federal counterparts[.]”). 164. N.Y. ENV’T CONSERV. LAW § 8-0109(1) (2006); see also Philip H. Gitlen, The Substantive Impact of the SEQRA, 46 ALB. L. REV. 1241, 1249-50 (1982) (providing early commentary on the “action-forcing” requirements of SEQRA and contrasting it with NEPA). 165. Soc’y of Plastics Indus., Inc. v. Cnty. of Suffolk, 77 N.Y.2d 761, 770 (N.Y. 1991) (“While highly particular in setting out the various requirements, SEQRA contains no provision regard- ing judicial review.”). 388 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 49:2 litigants frequently allege violations of SEQRA in lawsuits, using oth- er provisions of New York law that permit private parties to sue gov- ernment agencies and officers for purported failures to perform their legal duties.166 Interestingly, while SEQRA primarily creates environmental obligations for government actors, not private ones,167 under some circumstances private plaintiffs can end up on both sides of SEQRA enforcement litigation. This is the result of New York’s rules of civil procedure, which requires courts to join parties “who might be inequitably affected by a judgment in [an] action.”168 SEQRA actions have been shaped by the legislature’s failure to in- clude any explicit provisions for “citizen suits.”169 In 1991 the New York Court of Appeals closely examined the scope of SEQRA citizen suits in Society of Plastics Industry, Inc. v. County of Suffolk,170 a suit brought by “representatives of the plastics industry” alleging that a municipal law banning plastic takeout containers had purportedly received insufficient environmental review.171 Noting that the New York legislature had considered, and rejected, provisions granting broad standing to individuals to enforce SEQRA by suit,172 the Court of Appeals refused to adopt an “open door policy,” holding instead that “the Legislature [had] made clear that some limitation on stand- ing . . . was appropriate.”173 Without guidance from the legislature, the Court of Appeals drew those limitations from the common law of standing.174 Under the standards developed by New York courts 166. See N.Y. C.P.L.R. § 7803(1) (McKinney 2003) (codifying the writ of mandamus, and permitting actions that challenge “whether [a New York] body or officer failed to perform a duty enjoined upon it by law”). 167. SEQRA allows state agencies to delegate some of the work of preparing environmental reports to private entities that are requesting state action, like companies applying for con- struction permits. However, state agencies and officers remain primarily responsible for en- suring that their activities comply with SEQRA. See, e.g., N.Y. ENV’T CONSERV. LAW § 8-0109(3) (2006). 168. N.Y. C.P.L.R. § 1001(a) (1963); see also Philip E. Karmel, SEQRA litigation—Proper Par- ties to SEQRA Litigation, in 9 N.Y. PRAC., ENVIRONMENTAL LAW AND REGULATION IN NEW YORK § 4:40 (2d ed. Oct. 2023 update) (discussing joinder in SEQRA litigation). 169. Matthew Sokol, 11 ENV’T L. IN N.Y. 13, 16 (2000) (noting that no citizen suit bill has been enacted in New York). 170. Soc’y of Plastics Indus., 77 N.Y.2d at 769–71. 171. Id. at 764. 172. See id. at 770 (“Had the Legislature intended that every person or every citizen have the right to sue to compel SEQRA compliance—thus assuring above all else that the [environ- mental impact statement] process would be scrupulously followed, irrespective of the source of the challenge—it could easily have so provided; it did not.”). 173. Id. at 771. 174. Id. at 771–75. 2024] The Private Litigation Impact of New York’s Green Amendment 389 over the intervening decades, plaintiffs seeking to allege a violation of SEQRA “must show (1) an environmental injury that is in some way different from that of the public at large, and (2) that the alleged injury falls within the zone of interests sought to be protected or promoted by SEQRA.”175 3. Private Actions under other Environmental Laws Alongside SEQRA, New York has enacted voluminous statutes and regulations that govern environmental quality, penalize pollution, and ensure the protection of environmentally sensitive species, re- gions, and ecosystems. Most of the statutes are located in New York’s Environmental Conservation Law (ECL),176 although some pollution-related provisions are contained in other statutes regulat- ing specific activities, like New York’s Navigation Law.177 Unlike SEQRA, many of the statutes contained in the ECL create explicit ob- ligations for private individuals,178 and most sections of the ECL are subject to explicit enforcement provisions.179 However, private causes of action are rare under the ECL for a simple reason: the ECL does not, generally, create private environ- mental rights. In the case of the provisions that control water pollu- tion180 and air pollution,181 this reservation is explicit. These stat- utes provide that the benefit of the environmental codes, rules, and regulations governing water and air pollution “shall inure solely to and shall be for the benefit of the people of the state generally,”182 and that regulation of water and air pollution under the ECL “is not intended to create in any way new or enlarged rights or to enlarge 175. Tuxedo Land Tr., Inc. v. Town Bd. of Tuxedo, 977 N.Y.S.2d 272, 274 (N.Y. App. Div. 2013). 176. N.Y. ENV’T CONSERV. LAW §§ 1-0101–75-0119. 177. See, e.g., N.Y. NAV. LAW § 181(1) (providing that “[a]ny person who has discharged pe- troleum shall be strictly liable, without regard to fault, for all cleanup and removal costs and all direct and indirect damages, no matter by whom sustained.”). 178. See, e.g., N.Y. ENV’T CONSERV. LAW § 17-0501(1) (prohibiting “any person” from “direct- ly or indirectly” polluting protected waters); N.Y. ENV’T CONSERV. LAW § 37-0107 (prohibiting “persons” from storing or releasing regulated “substances hazardous or acutely hazardous to public health, safety, or the environment”). 179. See N.Y. ENV’T CONSERV. LAW §§ 71-0101–71-4412 (describing enforcement procedures for many of the provisions of the ECL). 180. N.Y. ENV’T CONSERV. LAW §§ 17-0101–17-2105. 181. N.Y. ENV’T CONSERV. LAW §§ 19-0101–19-1105. 182. N.Y. ENV’T CONSERV. LAW § 19-0705 (addressing air pollution and contamination); N.Y. ENV’T CONSERV. LAW § 17-1103 (addressing water pollution and contamination). 390 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 49:2 existing rights.”183 Moreover, these statutes provide that violations of regulations governing water and air pollution “shall not create by reason thereof any presumption of law or finding of fact” that can be used in litigation “for the benefit of any person other than the state.”184 In these two areas, the ECL is clear: the environmental rights it creates are held by the people generally, and are not indi- vidual.185 While other sections of the ECL do not so explicitly repudiate pri- vate environmental actions, New York courts have nevertheless con- cluded that the environmental rules and regulations of the ECL do not create causes of actions between private parties.186 Where the ECL authorizes New York’s Attorney General to enforce its provi- sions, but does not explicitly give such rights to private individuals, courts have held that those provisions “benefit the public at large” and do not create individual environmental rights against pollut- ers.187 183. N.Y. ENV’T CONSERV. LAW § 19-0705; N.Y. ENV’T CONSERV. LAW § 17-1103. 184. N.Y. ENV’T CONSERV. LAW § 19-0705; N.Y. ENV’T CONSERV. LAW § 17-1103. 185. Other sections, which apply to the management of environmentally sensitive areas more generally, provide an explicit private cause of action against the government for private persons harmed by management decisions, but do not expressly permit actions against private entities. See N.Y. ENV’T CONSERV. LAW § 34-0112 (providing that “[a]ny person aggrieved by an act, order, determination or decision of the [environmental] commissioner made pursuant to this article may seek judicial review”). 186. See Kalden Const. Co. v. Hanson Aggregates New York, Inc., 634 F. Supp. 2d 319, 322 (W.D.N.Y. 2009) (concluding that “the weight of authority in New York is that the ECL does not provide a private right of action.”). 187. See Women’s Voices for Earth, Inc. v. Procter & Gamble Co., 581 N.Y.S. 2d 962, 962 (N.Y. Sup. Ct. 2010) (holding that “there is no private right of action under ECL § 71–3103, which gives the Attorney General the power to enforce” the ECL’s environmental standards for household cleaning products, and that “Petitioners do not fulfill the first prong of the private right of action inquiry, which is whether they are part of ‘the class for whose particular benefit the statute was enacted,” because “[t]he statute was to benefit the general public at large.”); see also Town of Wilson v. Town of Newfane, 906 N.Y.S.2d 721, 721 (N.Y. App. Div. 1992) (holding that a private plaintiff could not bring claims against a private defendant “predicated upon de- fendant’s violation of certain regulatory provisions” governing the operation of landfills, “[b]ecause the [ECL] specifically authorizes the Attorney-General to enforce” such rules and regulations); Nowak v. Madura, 304 A.D.2d 733, 733 (N.Y. App. Div. 2003) (upholding the dis- missal of a private claim challenging private defendants’ “unauthorized alterations to [a] drainage system” in violation of the ECL, as “[t]hat statute does not confer a private cause of action,” and citing Town of Wilson v. Town of Newfane, 906 N.Y.S.2d; Geysir Sales Corp. v. Arctic Glacier, Inc., 78 A.D.3d 653, 653 (N.Y. App. Div. 2010) (reversing a lower court’s denial of a mo- tion to dismiss a claim brought under the ECL for damages caused by a leak of ammonia “from the defendant’s ice-manufacturing facility,” and holding that “[t]he ECL did not create a private cause of action to recover damages for violations of” a provision relating to the storage of haz- ardous substances). 2024] The Private Litigation Impact of New York’s Green Amendment 391 The very few liability provisions applicable to private parties in the ECL and other New York environmental laws reinforce the gen- eral principle that New York’s environmental statutes do not create private rights against private parties. For example, the ECL’s provi- sions on forest fire control allow private suits against private parties who negligently or willfully start forest fires, but do not define any special category of environmental injury, and instead treats “damag- es” as arising from ordinary tort law.188 Similarly, New York’s Navi- gation Law contains extensive provisions detailing environmental liability for oil spills, and allows individuals who are directly or indi- rectly damaged by an oil spill to bring suits “directly against the per- son who has discharged the petroleum” for their own damages, but does not create or imply any personal environmental rights that would expand such damages beyond the bounds of traditional tort law.189 Analysis of private actions under the ECL reveals a pattern shared by private actions under the “Forever Wild” provision and SEQRA: New York courts are reluctant to create private causes of ac- tion if an environmental law (1) does not create an explicit private right or (2) explicitly provides for enforcement by state agents ra- ther than by private litigation. IV. REVISITING THE FRESH AIR CASES The Fresh Air cases addressed two key questions: (1) whether the NYGA is self-executing; and (2) whether private entities owe en- forceable obligations to other private parties under the NYGA.190 188. See N.Y. ENV’T CONSERV. LAW §§ 71-0711, 0713. The statute does, however, provide an environmental penalty clause of sorts by making willful firestarters liable to private individu- als “for the higher of actual damages or damages at the rate of five dollars for each tree killed or destroyed.” N.Y. ENV’T CONSERV. LAW § 71-0711. 189. N.Y. NAV. LAW § 181(5). 190. Of course, even if the NYGA does not apply to purely private conduct, that does not mean that all private conduct is immune from constitutional challenge. It is well-established that “[p]rivate conduct may . . . be found to be ‘state action,’ and thus subject to constitutional protection, where the government has participated in private conduct to such an extent that the conduct can be deemed to be fairly attributable to the state.” Curiously, although FAFE made this exact argument in Fresh Air I, the decision contains no discussion of it. See Plaintiff’s Memorandum of Law in Opposition to the Motion to Dismiss by Waste Management of New York, L.L.C. at 15–16, Fresh Air I, No. E2022000699, 2022 WL 18141022 (N.Y. Sup. Ct. June 17, 2022)). Though we take no position on whether the doctrine should apply to WMNY’s actions as alleged by FAFE, we note that the doctrine may provide a viable route for litigants to main- tain NYGA claims against private parties in certain circumstances. See, e.g., Clean Air Council v. Sunoco Pipeline L.P., 185 A.3d 478, 492 (Pa. Commw. Ct. 2018) (discussing the availability of a 392 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 49:2 Despite the enormous significance of these questions to the scope and power of the NYGA, the Fresh Air court answered both with barely a paragraph of analysis. Addressing the first question, the court held that the NYGA is self- executing.191 Though that conclusion is on appeal,192 this Section does not address the issue because the court’s holding accords with the well-established New York law principal that “constitutional provisions are presumptively self-executing.”193 Moreover, the state rights that inspired the NYGA—the PGA and MGA—have both been found to be self-executing.194 This Section focuses instead on whether the NYGA creates private claims against private parties. Fresh Air I’s brief analysis of this question suggests a clarity to New York’s constitutional law that is simply absent.195 As this Section argues, where the text of a section of New York’s Bill of Rights is ambiguous with respect to whether it incorporates a state action requirement, courts must apply a more robust analysis—one that considers the section’s substantive, histor- ical, and comparative context. This Section analyzes the NYGA with the benefit of this context, and concludes that Fresh Air I incorrectly decided that the NYGA provides no remedy for environmental claims between private par- ties. Subsection A discusses the relationship between the NYGA and other sections of New York’s Bill of Rights, and asserts that Fresh Air I’s comparison of these rights overlooks the unique nature of the NYGA. Subsection B examines at the legislative history of the NYGA, and finds that this history is, at best, divided on the question of whether the NYGA contains a private cause of action. Subsection C similarly assesses constitutional litigation under the NYGA’s ante- cedent green amendments, the MGA and the PGA, and concludes that these histories provide little guidance for interpreting the NYGA. Fi- nally, Subsection D looks at the broader structure of New York’s en- private cause of action under the PGA where a private pipeline company was acting with emi- nent domain authority delegated from the Commonwealth of Pennsylvania). 191. Fresh Air I at 12–13; Fresh Air II, No. E2021008617, slip op. 34429 at 8–9 (N.Y. Sup. Ct. Dec. 8, 2022). 192. See Brief of Defendant at 11–51, Fresh Air for the Eastside, Inc. v. State of New York, No. CA23-00179 (N.Y. App. Div. Dec. 22, 2023). 193. See Brown v. State of New York, 89 N.Y.2d 172, 186 (N.Y. 1996) (citing People v. Car- roll, 3 N.Y.2d 686 (1958)); but see infra note 227 and accompanying text (discussing the lim- ited utility of legislative history when interpreting constitutional provisions). 194. See supra Sections (III)(A)(1) and (III)(B)(1). 195. See Fresh Air I at 12–13. 2024] The Private Litigation Impact of New York’s Green Amendment 393 vironmental law, and argues that the NYGA represents exactly the type of environmental right that New York law treats as privately en- forceable: one that creates individual environmental rights and pro- vides no explicit mechanism for government enforcement of those rights. A. The NYGA Arises in a Unique Constitutional Context that Should Shape Its Interpretation The Fresh Air court’s interpretation of the NYGA was heavily shaped by early commentators who opined that NYGA claims can on- ly be brought against government entities.196 These commentators argued that the NYGA does not explicitly say that it binds private conduct, so a private party cannot violate it. They point to Sec- tion 11, the equal protection provision, which specifically prohibits discrimination “by any other person or by any firm, corporation, or institution,”197 and compare it to Sections 3 and 8, the free exercise and freedom of speech and press provisions, respectively, which do not expressly bind private actors, and have been held to apply only to state action.198 The perspective of these commentators was not an outlier; several prominent New York environmental scholars adopt- 196. See infra notes 47–49, 52 and accompanying text (discussing the use of academic and practitioner commentary in Fresh Air I); see also Fresh Air I at 12–13. 197. Section 11 provides: No person shall be denied the equal protection of the laws of this state or any subdivi- sion thereof. No person shall, because of race, color, creed or religion, be subjected to any discrimination in his civil rights by any other person or by any firm, corporation, or institution, or by the state or any agency or subdivision of the state. N.Y. CONST. art. 1, §11. 198. Section 3 provides: The free exercise and enjoyment of religious profession and worship, without discrimi- nation or preference, shall forever be allowed in this state to all humankind; and no person shall be rendered incompetent to be a witness on account of his or her opinions on matters of religious belief; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this state. N.Y. CONST. art. 1, §3. Section 8 provides: Every citizen may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions or indictments for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to de- termine the law and the fact. N.Y. CONST. art. 1, §8. 394 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 49:2 ed essentially the same analysis as part of broader discussions of the NYGA’s impact.199 While the interpretation of the NYGA endorsed by the Fresh Air court is temptingly simple, it elides a nuanced constitutional land- scape. The commentators cited in Fresh Air I are right that the plain text of Section 11 binds private conduct.200 But it also explicitly pro- hibits discrimination “by the state or any agency or subdivision of the state.”201 This makes Section 11 an awkward analogue for the NYGA, which does not explicitly prohibit private or state action. Put differently, Fresh Air I’s holding that an NYGA claim cannot be brought against a private party because the NYGA “makes no refer- ence to private entities” is inconsistent with its holding that an NYGA claim can be brought against a public party, because the NYGA also makes no reference to governmental entities.202 A simple textual in- terpretation is thus unsatisfying, at best.203 199. See Katrina Kuh, Evaluating the Adoption of a Green Amendment to the NYS Constitu- tion (Oct. 26, 2021) (Address to the New York Bar Association) (powerpoint on file with the Journal) (contrasting Section 11 with Sections 3 and 8, and arguing that “under relevant NY precedent, the right would likely be interpreted not to authorize suits against private parties); Nicholas Robinson, The Impact of the Green Amendment: A New Era of Environmental Juris- prudence (Jan. 25, 2022) (address Before the New York State Bar Association January 2022 Annual Meeting, Environment and Energy Law Section) (outline available at https://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=2203&context=lawfaculty [https://perma.cc/N424-ENWN]). However, other legal commentators who more narrowly focused on the issue of private liti- gation, were less sure. See Birnbaum et al., supra note 59 (noting that under the NYGA it is “unclear whether, if a private right of action exists, it can be asserted against private compa- nies,” and examining the impact of other states’ environmental rights on private litigation). 200. See, e.g., Scheiber v. St. John’s Univ., 638 N.E.2d 977, 979 n.2 (N.Y. 1994) (acknowledg- ing that Section 11 applies to private religious institutions). 201. N.Y. CONST. art. 1, §11. 202. Compare Fresh Air I, No. E2022000699, 2022 WL 18141022, at 12–13 (N.Y. Sup. Ct. Dec. 20, 2022) with Fresh Air II, No. E2021008617, slip op. 34429 at 8–9 (N.Y. Sup. Ct. Dec. 8, 2022). In its motion to dismiss in Fresh Air I, WMNY pointed to the environmental rights con- tained in the Hawaii and Illinois Constitutions. See Waste Management’s Memorandum of Law in Support of its Motion to Dismiss at 9–10, Fresh Air I, No. E2022000699, 2022 WL 18141022 (N.Y. Sup. Ct. May 6, 2022). But both of those Constitutions have the same problem—while they allow plaintiffs to enforce their rights against private parties, they also expressly refer to public parties. See HAW. CONST. art. XI, §9 (“Any person may enforce this right against any par- ty, public or private . . . .” (emphasis added)); ILL. CONST. art. XI, §2 (“Each person may enforce this right against any party, governmental or private . . .” (emphasis added)). Moreover, Fresh Air I holds that FAFE’s claim against the state actors was correctly brought under the NYGA itself, rather than under Article 78 of New York’s Civil Practice Law and Rules (CPLR), which codifies writs of mandamus and which is used to vindicate constitutional envi- ronmental rights See Fresh Air I at 13 (“A declaration of constitutional rights is most appropri- ate in a declaratory judgement action, not a CPLR Article 78 proceeding.”); see also Robinson, 2024] The Private Litigation Impact of New York’s Green Amendment 395 The better approach, then, is not one that looks solely at the NYGA’s text, but one that incorporates a more holistic analysis. The remainder of this Subsection employs such an approach, concluding that the context and substance of the NYGA favor interpreting it to govern private action as well as state action. To begin, it is useful to compare the NYGA to other sections of New York’s Bill of Rights that have been interpreted as governing state ac- tion only. The commentators who assert that the NYGA governs only state action rely primarily on the Court of Appeals’ seminal decision in SHAD Alliance v. Smith Haven Mall,204 in which the court addressed whether a shopping mall owner violated Section 8, the freedom of speech and press provision, by enforcing a blanket policy against the distribution of leaflets. Before SHAD Alliance was decided, the United States Supreme Court had held that such activity violated the federal Constitution’s First Amendment.205 The question before the New York Court of Appeals was therefore: Should Section 8 be interpreted the same way? Yes, the Court of Appeals concluded—Section 8 governs public conduct only, not private action.206 In answering this question, the supra note 158, at 181 n.100 (2017) (discussing the enforcement of New York’s other constitu- tional right, the Forever Wild provision, through “Article 78 proceeding[s]”). 203. Proponents of this interpretation may argue that an explicit reference to government entities is unnecessary due to the broader equitable principle that the creation of a legal right implies an injunctive remedy against government actors who violate that right. See Marbury v. Madison, 5 U.S. 137, 147 (1803) (“It is a settled and invariable principle, that every right, when withheld, must have a remedy, and every injury its proper redress”); Note, Interpreting Con- gress’s Creation of Alternative Remedial Schemes, 134 HARV. L. REV. 1499, 1505–07 (2021) (de- scribing Ex Parte Young’s “equitable remedy” of injunctive relief against state officials for viola- tions of federal law); see also Hurrell-Harring v. State, 15 N.Y.3d 8, 26 (2010) (citing Marbury, and holding that New York courts have an “essential obligation to provide a remedy for viola- tion of a fundamental constitutional right”). However, these cases speak to the availability of remedies, rather than the scope of rights. While this Article does not dispute that “a clear constitutional or statutory mandate” guaran- tees at least an equitable remedy against government violation, Hurrell-Harring v. State, 15 N.Y.3d at 26, it is circular, at best, to argue from this centuries-old principle that the possibility of an equitable remedy against government actors makes the scope of a textually ambiguous right clear. 204. SHAD All. v. Smith Haven Mall, 488 N.E.2d 1211 (N.Y. 1985). Though SHAD Alliance concerns Section 8 specifically, its logic and rationale apply equally to the similarly situated Section 3. See Lown v. Salvation Army, Inc., 393 F. Supp. 2d 223, 245 (S.D.N.Y. 2005) (noting that “several New York courts have held that Section Three only pertains to state action” and collecting cases). Similarly, Professor Nicholas Robinson points to SHAD Alliance for the prop- osition that the NYGA “do[es] not enable law suits against private parties.” See Robinson, supra note 199. 205. See, e.g., Lloyd Corp., Ltd. v. Tanner, 407 U.S. 551 (1972). 206. See SHAD All., 488 N.E.2d at 1213–17. 396 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 49:2 court drew on Section 8’s historical context, traditional understand- ings of speech rights, and “contemporary approaches to constitu- tional adjudication.”207 The court determined that the New York Constitution, generally—and its Bill of Rights, specifically—was his- torically intended to protect individual rights by limiting and defin- ing state authority: “[W]hile the drafters of the 1821 free speech clause may not have envisioned shopping malls, there can be no question that they intended the State Constitution to govern the rights of citizens with respect to their government and not the rights of private individuals against private individuals.”208 The court also drew on a body of literature to posit that “a Bill of Rights is designed to protect individual rights against the govern- ment,”209 and that doctrines limiting the scope of individual constitu- tional rights to state actions are “a crucial foundation for both pri- vate autonomy and separation of powers.”210 While this Article does not argue that SHAD Alliance was wrong in its assessment of Section 8, it is less clear that SHAD Alliance’s con- clusions and assumptions extend to the NYGA. A central component of SHAD Alliance’s reasoning was the Court of Appeals’ recognition that “the New York Bill of Rights, like its Federal counterpart, was in- tended by its drafters to serve as a check on governmental, not pri- vate, conduct.”211 While that may have been true when the initial Bill of Rights—which included Section 8 (and Section 3)—appeared in the 1821 New York Constitution, that is certainly not true today. As discussed, Section 11 (the first addition to the original Bill of Rights, in 1938) plainly prohibits private actors from “discriminating in [the] civil rights” of any person.212 Section 11’s focus on private ac- tion is significant, as it signals the first time New York’s Bill of Rights did more than safeguard individual rights against government ac- tion. Section 11 thus undermines the Court of Appeals’ blanket char- 207. Id. at 1213. 208. SHAD All., 488 N.E.2d at 1215. 209. SHAD All., 488 N.E.2d at 1215 (citing THOMAS M. COOLEY, CONSTITUTIONAL LIMITATIONS, 36–37 (rev. ed. 1972); LEARNED HAND, THE BILL OF RIGHTS (Harvard Univ. Press 1958); HENRY ROTTSCHAEFFER, AMERICAN CONSTITUTIONAL LAW § 305 (1939); LAURENCE TRIBE, AMERICAN CONSTITUTIONAL LAW, 1147, n. 1 (1978)). 210. SHAD All., 488 N.E.2d at 1216. 211. Id. at 1214; see also id. at 1215 (“[A] Bill of Rights is designed to protect individual rights against the government . . .”); id. at 1216 (“A State Constitution is a document defining and limiting the powers of State government . . .”). 212. N.Y. CONST. art. I, §11 (prohibiting discrimination “by any other person or by any firm, corporation, or institution, or by the state or any agency or subdivision of the state”). 2024] The Private Litigation Impact of New York’s Green Amendment 397 acterization of the Bill of Rights as serving solely as a shield against the state. Treating the NYGA as a protection against private parties would therefore be consistent with the Bill of Rights’ purpose as un- derstood in its modern context. The NYGA is further distinguished from other sections of New York’s Bill of Rights because it lacks any reference to state action. In comparison, Section 8 contains the following express restriction on government lawmaking ability: “[N]o law shall be passed to restrain or abridge the liberty of speech or of the press.”213 Section 3 similar- ly prohibits a person from “be[ing] rendered incompetent to be a witness on account of his or her opinions on matters of religious be- lief”—a decision that could only be made by a court—and also ex- empts “acts of licentiousness, or . . . practices inconsistent with the peace or safety of this state”—a nod to the executive branch’s au- thority.214 Such invocations of state action (which appear expressly or implicitly in many other Bill of Rights’ sections) appear nowhere in the NYGA, suggesting that it should be read more broadly.215 Moreover, the substance of the rights conferred by the NYGA fur- ther distinguish it from other sections of the Bill of Rights. The NYGA enshrines the rights to “clean air and water” and “a healthful envi- ronment.”216 These rights are unique, in that they affect every per- son in New York and imply no particular relationship between pro- tected individuals and government action. Consider the right to “a healthful environment,” for example. That right does not clearly de- pend on any particular action by the person invoking the right, nor does it suggest the specter of government action. In contrast, many other sections of the Bill of Rights make sense only if construed in the context of government action. For example, as noted above, Sec- tion 8 provides that “no law shall be passed to restrain or abridge the liberty of speech or of the press.”217 Similarly, Section 3 provides that "[t]he free exercise and enjoyment of religious profession and 213. N.Y. CONST. art. I, §8. 214. N.Y. CONST. art. I, §3; see also People v. Parks, 359 N.E.2d 358, 367 (N.Y. 1976) (“[T]he question of witness competency is a matter of law to be determined by the court.”). 215. Cf. Clyatt v. United States, 197 U.S. 207, 216 (1905) (recognizing that, unlike “the pro- hibitions of the 14th and 15th Amendments [which] are largely upon the acts of the states,” the “13th Amendment names no party or authority,” a distinction which warranted treating the latter as applicable to private action as well as state action). 216. N.Y. CONST. art. I, §19. 217. N.Y. CONST. art. I, §8 (emphasis added). 398 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 49:2 worship . . . shall be forever allowed in this state”218—again protect- ing active, affirmative conduct against state prohibition. This distinction makes a difference. Unlike these other sections, the NYGA regulates conduct that does not necessarily arise in the shadow of government action. Rather, the NYGA is effectively an ab- solute prohibition on an unhealthy environment and a declaration that clean air and water must be always available in all parts of New York.219 In this way, the NYGA is similar to the Thirteenth Amend- ment of the U.S. Constitution, the only federal amendment interpret- ed as prohibiting private conduct,220 which “is not a mere prohibition of State laws establishing or upholding slavery, but an absolute dec- laration that slavery or involuntary servitude shall not exist in any part of the United States.”221 Given the NYGA’s sweeping mandate, courts should be cautious about drawing simple analogies between the NYGA and other sections of New York’s Bill of Rights; the NYGA’s guarantees may reasonably be recognized as providing a right against all environmental harm, caused by state actors and private actors alike. B. To the Extent Legislative History is Relevant, it Shows that the Legislature was Divided on Whether the NYGA Allows Suits against Private Parties. The Court of Appeals’ analysis in SHAD Alliance relied, in part, on the opinions of the drafters of the Bill of Rights, as evinced in the de- bates at the 1821 Convention.222 At first glance, that reliance is not 218. N.Y. CONST. art. I, §3 (emphasis added). 219. While this language raises ambiguities and interpretive challenges, these challenges are comparable to the interpretive challenges presented by the Thirteenth Amendment’s posi- tive right to be free from involuntary servitude. See James Gray Pope, Section 1 of the Thir- teenth Amendment and the Badges and Incidents of Slavery, 65 UCLA L. REV. 426, 430 (2018) (“To comply with the [Thirteenth Amendment’s] command that slavery shall not ‘exist,’ we must determine which [badges and incidents of slavery] are so important to slavery and invol- untary servitude that when they exist, it cannot be said that those conditions have been entire- ly eliminated.”) 220. This statement does not consider the now-repealed Eighteenth Amendment, which created direct private obligations by banning “the manufacture, sale, [and] transportation of intoxicating liquors.” U.S. CONST. amend. XVIII Sec. 1. 221. Civil Rights Cases, 109 U.S. 3, 20 (1883). “Virtually uniquely” among the [federal] Con- stitution’s rights-conferring provision, the Thirteenth Amendment] lacks a state action re- quirement.” Jamal Greene, Thirteenth Amendment Optimism, 112 COLUM. L. REV. 1733, 1768 (2012). 222. SHAD All. v. Smith Haven Mall, 488 N.E.2d 211,1213–14 (N.Y. 1985) (“General Root, for example, explicitly directing himself to the ‘4th clause, respecting the liberty of speech and 2024] The Private Litigation Impact of New York’s Green Amendment 399 surprising. After all, courts frequently turn to legislative history when interpreting ambiguous statutes.223 But in those circumstanc- es, the objective is to determine the intention of the body that actual- ly enacted the statute into law.224 In contrast, it is questionable whether the same objective is met by reviewing the debates at the 1821 Convention, because the delegates to that Convention were not the same body that ultimately approved the Constitution. Instead, the 1821 Constitution was submitted to the electorate for approv- al.225 The NYGA was also added to the New York Constitution by vote of the people.226 One scholar has noted that, in an analogous context, “[t]he nature of initiatives”—i.e., electorate-proposed statutes or constitutional amendments—“makes inquiries into the motives of the body enacting the challenged statute incredibly difficult, if not impossible.”227 Given this potentially insurmountable obstacle, it is fair to question whether legislative history is an adequate, or even useful, source for courts attempting to decipher the meaning of a the press . . . said it was doubtless intended to secure the citizen as well against the arbitrary acts of the legislature, as against those of the judiciary.’” (quoting NATHANIEL H. CARTER & WILLIAM L. STONE, REPORTS OF THE PROCEEDINGS AND DEBATES OF THE CONVENTION OF 1821 167 (1821)). 223. See, e.g., Kimmel v. State, 80 N.E.3d 370, 377 (N.Y. 2017) (relying on legislative history to interpret the Equal Access to Justice Act). 224. See, e.g., Tompkins Cty. Support Collection Unit ex rel. Chamberlin v. Chamberlin, 786 N.E.2d 14, 19 (N.Y. 2003) (“The primary goal of the court in interpreting a statute is to deter- mine and implement the Legislature's intent.”). Of course, reliance on legislative history is far from a universally condoned practice. See, e.g., Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568 (2005) (“[L]egislative history is itself often murky, ambiguous, and contradictory. Judicial investigation of legislative history has a tendency to become, to borrow Judge Le- venthal’s memorable phrase, an exercise in ‘looking over a crowd and picking out your friends.’” (quoting Patricia M. Wald, Some Observations on the Use of Legislative History in the 1981 Supreme Court Term, 68 Iowa L. Rev. 195, 214 (1983)); Frank H. Easterbrook, The Ab- sence of Method in Statutory Interpretation, 84 U. Chi. L. Rev. 81, 97 (2017) (“Relying on text does the least harm, for the text is visible to everyone, while legislative history can take people by surprise (especially given judicial discretion about which history to emphasize, a choice that judges lack when dealing with enacted texts).”). 225. See, e.g., Constitutions and Constitutional Conventions: 1821 New York State Constitu- tional Convention, N. Y. STATE ARCHIVES, https://www.archives.nysed.gov/research /constitutions-and-constitional-conventions. [https://perma.cc/QL9B-QHEJ] Such “legisla- tive” analysis is relatively common; Shad Alliance is not the only instance in which the Court of Appeals has analyzed the history, debates, and discussions of a constitutional amendment. See, e.g., People v. Carroll, 148 N.E.2d 875, 878 (N.Y. 1958). 226. See supra notes 31–32 and accompanying text (describing the passage of the NYGA). 227. D. Zachary Hudson, Interpreting the Products of Direct Democracy, 28 Yale L. & Pol. Rev. 233, 225 (2009). 400 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 49:2 constitutional provision that was added by the electorate, not the legislature.228 While legislative history may not be a particularly appropriate or useful tool for interpreting the NYGA, the Fresh Air cases show that litigants have already begun highlighting relevant legislative history to support their reading of the amendment.229 That historical record shows robust debate on whether the NYGA would provide a private cause of action against private parties—but also shows that the leg- islature never resolved this question. The New York State Assembly debated private litigation under the NYGA as early as April 2018. Assembly member Andrew Goodell questioned whether the NYGA would provide an “independent judi- cial platform” for individuals to enforce, for example, the use or dis- use of genetically modified organisms.230 The sponsor of the Assem- bly’s NYGA bill, Steve Englebright, responded that it would not, but then suggested that the amendment would not give rise to much liti- gation, suggesting the possibility of a private cause of action against private parties: “There are six other states that have passed a meas- ure very, very similar to this. We have not seen any notable trend of increased litigation or lawsuits.”231 Assembly member Goodell re- mained unconvinced: So, what does this Constitutional amendment do? . . . [T]his would give a Constitutional right to every individual to bring a private right of ac- tion against their local government or against the MTA or against NYSERDA or against their city claiming that whatever the city is doing or the MTA is doing or the City of New York is doing or any local gov- ernment is doing or any local business or industry is violating their Constitutional right.232 The same issue was again raised in the Assembly several years lat- er, though with more involvement from members on both sides of the debate. One member who opposed the NYGA because of its lack of specificity “suspect[ed] that there’ll be lots of actions in court re- 228. One member of the New York Assembly exemplified the point when she raised several concerns regarding ambiguity in the NYGA, but ultimately decided to “leave it up to the voters in my district to decide . . . as to what the costs are associated with this and the rights under the New York State Constitution as amended.” Transcript of New York State Assembly on February 8, 2021, supra note 26, at 75 (Assemb. Giglio). Id. at 31 (Assemb. Englebright). 229. Fresh Air II, No. E2021008617, slip op. 34429 at 6–8 (N.Y. Sup. Ct. Dec. 8, 2022); Fresh Air I, No. E2022000699, 2022 WL 18141022, at 8–9 (N.Y. Sup. Ct. June 17, 2022). 230. Transcript of the New York State Assembly on April 24, 2018, at 49–50 https://assembly.ny.gov/av/session/ [https://perma.cc/4B2T-XP9Y] (Assemb. Goodell). 231. Id. at 50 (Assemb. Englebright). 232. Id. at 51–52 (Assemb. Goodell). 2024] The Private Litigation Impact of New York’s Green Amendment 401 lated to this legislation, particularly with regards to property. . . . [H]ere’s a prime lever in which I believe that citizens will now have the ability to—to file civil actions against their fellow citizens.”233 Another opponent expressed the same concern: “This will certainly create a right of private action for individuals to bring—file for law- suits as an individual person from a Constitutional perspective. . . . [W]ith this process, we’re not just talking about natural gas, we’re opening this right of action, private action on renewable projects as well, because I think it’s going to cause some Constitutional prob- lems.”234 Another member implicitly echoed this position, noting that he could not support the NYGA until it recognized a carve-out for the agriculture industry—a carve-out which would be meaning- less if the amendment did not enable private litigation.235 Several proponents of the NYGA also maintained that the amend- ment would grant a private cause of action against private parties. One Assembly member stated: “I don’t think anyone really doubts whether . . . if your neighbor is producing polluted water that mi- grates to your property that that polluted water is a violation of your rights for which you might be able to have legal recourse. Why should it be different if your neighbor is sending air as opposed to water onto your property that can sicken you?”236 In his view, pro- tecting property use is “among the reasons why we have courts to protect our rights, and it’s also why occasionally we need to take ac- tion to add to the bundle of rights that we, as New Yorkers, are enti- tled to.”237 Another Assembly member pushed back on the idea of carve-outs or exemptions and the need to suppress future litigation, noting that the NYGA “will simply make it so that companies, devel- opers, governments, and everyone in between must be thoughtful about environmental impact and how that impact relates to real liv- ing, breathing people.”238 233. Transcript of the New York State Assembly on February 8, 2021, supra note 26, at 37 (Assemb. Smullen). 234. Id. at 41–42 (Assemb. Palmesano); see also id. at 42–44 (“I mean, you can have private right of actions and lawsuits against wind farms that are being developed . . . What about someone, you know, who has a wood stove? Is that going to allow a neighbor to file a lawsuit against someone if they have a wood stove? . . . I think a Constitutional Amendment opens up that windfall of lawsuits that is just going to cost more, it’s going to provide a great deal of un- certainty to our energy markets, as well.”). 235. Id. at 92 (Assemb. Manktelow). 236. Id. at 64 (Assemb. Gottfried). 237. Id. at 64–65 (Assemb. Gottfried). 238. Id. at 70 (Assemb. Septimo). 402 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 49:2 In contrast, other Assembly members stated that the NYGA would not enable private litigation. One member who supported the NYGA noted: “This is a mandate to our government to clean air and water. This is not a stipulation specific to actions between private citi- zens.”239 Another supporter echoed these comments, stating that “[t]here is nothing that gives a citizen an explicit right to sue another private citizen or private corporation, a landfill, a farm, a wind tur- bine manufacturer, under this law. . . . This amendment does not convey upon the citizenry any additional rights of action against oth- er businesses, against other people, against their neighbors.”240 Two additional proponents went further, disclaiming any private cause of action at all. The first, Assembly member Englebright, the bill’s spon- sor, responded to a question about whether the amendment would create a private cause of action by saying: I’m, again, a geologist, not a lawyer. I would leave that to the lawyers to decide. That is certainly not a[n] intent because we have not spoken to it and we have not attempted in the language of the measure to cre- ate a – a right of action. But I would – it’s my understanding, I would point out, that anyone can sue anybody for anything. So, it doesn’t pre- vent that, but it doesn’t create anything new either.241 The second tried to quell the concerns expressed by opponents to the amendment: “We’ve heard several [objections to the amend- ment], including an assumption of a private right of action for envi- ronmental damage. I can assure my colleagues that this Constitu- tional Amendment does not do that.”242 Several aspects of this legislative history bear mentioning. First, the relevant legislative history comes only from the Assembly. Though the NYGA was discussed in Senate sessions, the issue of pri- vate litigation was never raised in that legislative body.243 The lack of any meaningful discussion in the Senate raises another basis to question whether the legislative history is a useful source to consult in interpreting the NYGA. After all, the underlying NYGA bill had to be passed by both legislative bodies, twice, before being sent to a 239. Id. at 61 (Assemb. Kelles). 240. Id. at 68–69 (Assemb. Lunsford). 241. Id. at 84 (Assemb. Englebright). 242. Id. at 90 (Assemb. Simon). 243. See Transcript of the New York State Senate on January 12, 2021, https://www.nysenate.gov/transcripts/2021-01-12t1115 [https://perma.cc/Q4S8-5L8H]; Transcript of the New York State Senate on April 30, 2019, https://www.nysenate.gov /transcripts/2019-04-30t1531 [https://perma.cc/GHF9-UBS3]. 2024] The Private Litigation Impact of New York’s Green Amendment 403 vote by the people.244 With the only relevant statements made by members of the Assembly—and with only a handful of the 150 As- sembly members engaging in the discussion, at that—one may ques- tion whether those statements can truly be said to represent the views of the legislature as a whole. Second, even if the legislative history is considered as representa- tive of the legislature’s position, that history shows that there was no unifying belief amongst New York legislators with respect to wheth- er the NYGA would allow a private cause of action against private parties. That said, it does show that there were three categories of Assembly members who weighed in on the issue: (1) Assembly members who opposed the NYGA bill, and believed it would support a private cause of action against private entities; (2) Assembly mem- bers who supported the NYGA bill, and also believed it would support private-on-private suits; and (3) Assembly members who supported the NYGA bill, but believed that it would not create a private cause of action against private parties.245 The dichotomy between the first and third categories is not particularly surprising. It is not uncom- mon for politicians opposing a bill to exaggerate its scope and for those supporting the bill to do the opposite—they are, after all, par- tisans who have their own political agendas.246 Thus, the second category of Assembly members—those who supported NYGA bill and advocated for an interpretation of the amendment that would allow private causes of action against private parties—is particularly notable, as those members had little incentive to portray the NYGA as a sweeping amendment that would enable private litigation. Yet, that is exactly what those members suggested during Assembly ses- sions.247 Third, putting aside the question of actual motives, the raw num- bers show that a majority of Assembly members who commented on the issue believed that the NYGA would permit private causes of ac- tion against private parties.248 Thus, while both sides will find sup- 244. See N.Y. CONST. art. XIX, §1. 245. See supra notes 231–242 and accompanying text. 246. See James J. Brudney & Corey Ditslear, Liberal Justices’ Reliance on Legislative History: Principle, Strategy, and the Scalia Effect, 29 BERKELEY J. OF EMPL. & LABOR L. 118, 119 (2008) (opining that “committee reports and floor statements are produced by partisans-actors with a stake in the legislative contest to which they are contributing”). 247. See supra notes 236–238 and accompanying text. 248. Compare supra notes 234–343 and accompanying text (statements of Assembly- members Goodell, Smullen, Palmesano, Manktelow, Gottfried, and Septimo, framing the NYGA as allowing private litigation) with notes 241–243 and accompanying text (statements of As- 404 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 49:2 port in the legislative history moving forward, those who advocate for an interpretation of the amendment that allows for private suits against private individuals will be able to point to a more legislators who appeared to share their view. C. Comparison with other Green Amendments is Inconclusive. The SHAD Alliance court also supported its conclusions about availability of private causes of action under the Bill of Rights by ex- amining contemporaneous interpretations of “free speech” clauses in other states’ constitutions.249 Of the two other green amendments, one (the MGA) has been held to contain a private cause of action against private parties, while the other (the PGA) has not. However, a close examination of the language of these amendments, and the respective decisions surrounding them, suggests that neither pro- vides applicable guidance on the interpretation of the NYGA. As previously discussed, Article II, Section 3 of the Montana Con- stitution provides that the right to a clean and healthy environment creates “corresponding responsibilities” for “all persons,”250 and Ar- ticle IX, Section 1(1) provides that “[t]he state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations.”251 The Montana Supreme Court has held that this language “clearly” creates environmental duties for private individuals252 and has used it as a starting place to discuss whether those private duties may be enforced by private litiga- tion.253 The NYGA, in contrast, contains no such explicit allocation of responsibilities—it is completely silent as to who, exactly, is charged with maintaining New York’s environmental quality. semblymembers Engelbright, Simon, Lunsford, and Kelles, who claimed that the NYGA would not impact private environmental litigation). 249. SHAD Alliance v. Smith Haven Mall, 488 N.E.2d 1211, 1213-14 (N.Y. 1985). 250. MONT. CONST. art. II, § 3. 251. MONT. CONST. art. IX, § 1 (emphasis added). 252. See Montana Env’t Info. Ctr. v. Dep’t of Env’t Quality, 296 Mont. 207, 232 (Mont. 1999) (J. Leapheart, concurring) (agreeing that “Article IX, Section 1, clearly imposes an obligation on private entities, as well as the state, to maintain and improve a clean and healthy environ- ment,” but arguing that the majority’s discussion of private action in addressing the case be- fore it was dicta); see also Cape-France Enterprises v. Est. of Peed, 305 Mont. 513, 520 (Mont. 2001) (“[T]he text of Article IX, Section 1 applies the protections and mandates of this provi- sion to private action—and thus to private parties—as well.”). 253. See supra Section (III)(A)(1)(ii.)(b) (discussing the Montana Supreme Court’s juris- prudence around private litigation under the MGA). 2024] The Private Litigation Impact of New York’s Green Amendment 405 Unlike the MGA, the plain text of the PGA does not explicitly im- pose any obligations on private actors. Much like the NYGA, Clause 1 of the PGA establishes that “[t]he people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment,” and provides no corre- sponding obligations or responsibilities.254 In response, Pennsylva- nia courts have generally refused to allow private litigation under the PGA.255 However, in practice, Pennsylvania court decisions re- jecting private litigation under the PGA have relied on Clause 2 of the PGA, which directs the Commonwealth of Pennsylvania to conserve Pennsylvania’s public natural resources in trust for the people—a mandate not contained in the text of the NYGA.256 Pennsylvania’s courts have consistently held that, because these clauses are read to- gether, the PGA “does not impose duties or obligations on private parties.”257 The brevity of the NYGA means that neither the MGA’s explicit pri- vate obligation nor the PGA’s implicit rejection of private obligations are perfect analogues. The NYGA, unlike the MGA, does not explicitly impose obligations on private actors, so the chain of Montana deci- sions springing from MEIC provide little support for the argument that the NYGA contains a private cause of action against private par- ties. And the NYGA lacks the PGA’s language that Pennsylvania courts have relied upon to infer that the PGA only binds government actors. Reference to these other green amendments thus does not meaningfully inform the NYGA’s interpretation. D. A Private Cause of Action under the NYGA is Consistent with New York’s Environmental Law Finally, reading the NYGA in the context of New York’s broader re- gime of environmental law strongly suggests that the NYGA can, and should, create enforceable private rights against private parties. The idea of examining an existing statutory framework to interpret a new constitutional right contains some inherent tension, as constitutional 254. PA. CONST., art. I, § 27. 255. But see Marques v. Bunch, 18 Pa. D. & C.3d 371, 388 (Pa. Ct. C.P. 1980) (describing an individual’s dumping of farm waste as occurring “in violation of [the individual’s environmen- tal] permit, the Clean Streams Law, and [the PGA]”). 256. PA. CONST., art. I, § 27. 257. See Robinson Twp. v. Commonwealth, 623 Pa. 564, 645, 83 A.3d 901, 950–51 (Pa. 2013) (noting that “the two paradigms, while serving different purposes in the amendatory scheme, are also related and overlap to a significant degree”); see supra note 131. 406 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 49:2 changes nullify inconsistent statutory provisions under New York law.258 However, this simple dictum elides a more complicated rela- tionship between statutes and constitutional amendments. In inter- preting constitutional language, New York courts strongly consider the existing law and governance practices that formed the legal con- text of a constitutional provision.259 As a general rule of construction in New York, statutes are presumptively constitutional and are only supplanted by constitutional amendments where the two cannot be reasonably reconciled.260 In short, preexisting statutes inform con- stitutional interpretation not because they are superior to constitu- tional law but because they form part of the historical legal context that shapes judicial interpretations of legislative intent.261 As discussed above, New York’s environmental law may be charac- terized as disfavoring private litigation.262 The Forever Wild consti- tutional provision allows private plaintiffs to sue private violators, but such suits are not truly private—instead, they are quasi-qui tam suits that seek to protect the environmental rights of the public.263 While SEQRA, New York’s premier environmental statute, generates an enormous volume of litigation by private plaintiffs, its obligations fall almost entirely on government officers and agencies, and private defendants are only collaterally involved in SEQRA suits as necessary parties to suits challenging a public-private interaction like permit applications.264 Finally, the vast majority of the ECL, New York’s 258. See People ex rel. Clark v. Adel, 129 Misc. 82, 89 (N.Y. Sup. Ct. 1927) (“[A] constitution- al provision necessarily nullifies every statutory provision which is inconsistent with the new constitutional provision.”); Charles W. Sommer & Bro., Inc. v. Albert Lorsch & Co., 254 N.Y. 146, 147 (N.Y. 1930) (holding that constitutional amendments automatically invalidate contradic- tory statutes). 259. New York Pub. Int. Rsch. Grp., Inc. v. Steingut, 40 N.Y.2d 250, 258 (N.Y. 1976) (noting that New York courts “look with advantage to circumstances and practices which existed at the time of the passage of the constitutional provision”). 260. In re Fay, 291 N.Y. 198, 204–07 (N.Y. 1943) (observing that “a presumption of consti- tutionality attaches to every statute,” that “a statute can be declared unconstitutional only when it can be shown beyond reasonable doubt that it conflicts with the fundamental law,” and that no “reasonable mode of reconciliation” can align the statue with the applicable constitu- tional provision); see also John Bourdeau et al., § 15 Effect of Constitutional Provision on Exist- ing Statutes, in 20 N.Y. JUR. 2D CONSTITUTIONAL LAW (Nov. 2023). 261. See W. New York Water Co. v. Brandt, 18 N.Y.S.2d 128, 133 (N.Y. App. Div. 1940) (not- ing that contemporaneous interpretations of legal phrases used in constitutional language “are powerless to vary the terms of the Constitution,” but “may be of material assistance in showing that a word or clause was used in a certain sense”). 262. See supra Section III(B) (discussing private environmental litigation in New York). 263. See supra note 159 and accompanying text. 264. See supra Section III(B)(2) (discussing SEQRA litigation). 2024] The Private Litigation Impact of New York’s Green Amendment 407 chapter of environmental statutes, is enforceable only by public offi- cials, and supports no private actions whatsoever.265 However, a more nuanced reading of the cases interpreting New York’s environmental laws suggests that the NYGA is not limited by these precedents. Where New York courts have generally concluded that New York’s environmental laws do not create private causes of action, those conclusions have been based on either (1) findings that the environmental laws invoked by plaintiffs provide collective rights, not individual ones266 or (2) findings that the relevant envi- ronmental laws are subject to provisions that favor state enforce- ment over private litigation.267 Concerning the NYGA, neither of these factors weighs against a private cause of action. The NYGA, at its core, is hard to construe as a collective environmental right: it guarantees environmental rights to “[e]ach person.”268 Moreover, as repeatedly discussed, the NYGA contains no explicit reference to any enforcement mechanism. New York’s environmental regulatory regime has another con- sistent theme that is much more relevant to interpretation of the NYGA: that private litigation can vindicate environmental harm even if a comprehensive government enforcement regime is in place. The sections of New York environmental law that do explicitly permit private litigation are the exceptions that prove this rule. As previ- ously discussed, New York laws governing forest fires269 and oil spills270 contain extensive regulations and public enforcement mechanisms, but allow private plaintiffs to pursue litigation against private defendants for environmental damage to their persons or property despite the existence of comprehensive regulatory regimes. 265. See supra Section III(B)(3) (discussing private actions under the ECL). 266. People v. System Properties, Inc., 281 A.D. 433, 445 (N.Y. App. Div. 1953) (expressing a structural preference for enforcing the Forever Wild provision through suits brought by the Attorney General, as citizen suits are “secondary” mechanisms to enforce the provision’s fun- damentally public rights); Women's Voices for Earth, Inc. v. Procter & Gamble Co., 29 Misc. 3d 358, 360 (N.Y. Sup. Ct. 2010) (holding that a section of the ECL that establishes environmental standards for household cleaning products “was to benefit the general public at large,” not to create private rights). 267. See Town of Wilson v. Town of Newfane, 181 A.D.2d 1045, 1045 (N.Y. App. Div. 1992) (rejecting private litigation under a section of the ECL “[b]ecause the [ECL] specifically author- izes the Attorney-General to enforce” that section); Nowak v. Madura, 304 A.D.2d 733, 733 (App. Div. 2003) (same); Geysir Sales Corp. v. Arctic Glacier, Inc., 78 A.D.3d 653, 653 (N.Y. App. Div. 2010) (same). 268. N.Y. CONST., art. 1, sec. 19. 269. See N.Y. ENV’T CONSERV. LAW §§ 71-0711, 0713. 270. See N.Y. NAV. LAW § 181(5). 408 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 49:2 While these laws do not purport to create private rights, they permit private litigation to vindicate those rights created by other sections of the law. Similarly, New York law contains a significant category of environmental torts that exist in the shadow of New York’s envi- ronmental regulations, and that are rooted in purported harm to pri- vate interests.271 Together, these examples show that New York law does not disfavor private remedies for environmental harm to pri- vate rights; it merely rejects the idea that general environmental regulation, without more, creates private rights. When New York’s voters enshrined environmental rights for “[e]ach person” in the NYGA, the existing legal framework suggests that they intended those rights to be accorded remedies against private infringement. V. SUING IN THE SHADOW OF THE GREEN AMENDMENT Regardless of whether New York’s courts embrace a private cause of action under the NYGA, the existence of a constitutional environ- mental right is likely to influence private litigation in the state. State courts use a number of interpretive techniques to “import constitu- tional values into private settings” including “enforcing constitution- al norms through existing common law causes of action, elaborating common law doctrines in the light of constitutional norms, and de- veloping common law defenses informed by constitutional norms.”272 Even without creating a cause of action against private parties, the NYGA may shape doctrines in other areas of law that in- corporate public policy or societal norms of “reasonableness.” Two areas of private litigation, contract law and the common law of pri- vate nuisance, may be particularly suitable to revision in light of the NYGA. A. The NYGA and Contract Even if the NYGA is not interpreted as creating environmental ob- ligations for private individuals, it may open the door for private contracts to be voided as illegal or against public policy. Montana 271. See infra Section V(B) (discussing New York’s environmental tort doctrines). 272. Helen Hershkoff, Lecture: The Private Life of Public Rights: State Constitutions and the Common Law, 88 N.Y.U. L. REV. ONLINE at 11 n.32 (2013), https://www.nyulawreview.org/wp- content/uploads/2018/08/NYULawReviewOnline-88-1-Hershkoff.pdf [https://perma.cc/M5KC-JCBN] (quoting Helen Hershkoff, State Common Law and the Dual Enforcement of Constitutional Norms, in NEW FRONTIERS OF STATE CONSTITUTIONAL LAW, DUAL ENFORCEMENT OF NORMS 151, 156–62 (James A. Gardner & Jim Rossi eds., 2011)). 2024] The Private Litigation Impact of New York’s Green Amendment 409 provides a model for how a constitutional environmental right can limit the enforcement of environmentally harmful contracts. As dis- cussed in Section III(A)1)(ii)(a), the Montana Supreme Court has held that a doctrine of legal impossibility prevents Montana’s courts from enforcing contracts that would harm rights protected under the MGA. While the Cape-France court held that the plaintiff had direct obligations under the MGA that would be violated by fulfilling the terms of the contract, it also found that enforcing an environmentally damaging contract “would involve the state itself in violating [MGA].”273 Even if courts ultimately find that private parties have no legal obligations under the NYGA, Cape-France raises the possibility that the NYGA may limit judicial enforcement of environmentally damaging contracts. While contract law in New York offers parties enormous flexibility to enter into voluntary agreements that create binding legal obliga- tions, statutes and common law doctrines set outer limits on these obligations.274 In particular, New York law provides that “illegal con- tracts, or those contrary to public policy, are unenforceable,” and New York’s courts “will not recognize rights arising from them.”275 Parties seeking to escape contractual obligations that would cause environmental damage might invoke the NYGA in arguing that such contracts should be treated as void as a matter of public policy. There are at least two contexts in which the NYGA might be invoked against a contract: to prevent environmental harm to one of the par- ties to a contract, or to prevent environmental harm to third parties through the performance of the contract. These contexts require 273. Id. at 520. 274. “All contracts are made subject to any law prescribing their effect or conditions to be observed in their performance, such that the law is as much a part of the contract as if it had been actually written into it.” Glen Banks, Illegality and Public Policy, in 28 N.Y. CONTRACT LAW § 1:14 (Thomson Reuters ed. 2023); see, e.g., GLEN BANKS, Malum in Se, in 28 N.Y. CONTRACT LAW § 7:6 (Thomson Reuters ed., 2023) (discussing the general unenforceability of contracts made to accomplish unlawful acts or in violation of a penal statute). 275. Szerdahelyi v. Harris, 67 N.Y.2d 42, 48 (N.Y. 1986); see also Pecora v. Cerillo, 621 N.Y.S.2d 363, 366 (N.Y. App. Div. 1995) (“It has long been held that contracts that are in whole or in part against public policy are void,”); Matter of Validation Rev. Assocs., Inc., 646 N.Y.S.2d 149, 150 (N.Y. App. Div. 1996), rev’d on other grounds, 91 N.Y.2d 840, 690 N.E.2d 487 (N.Y. 1997) (“In general, parties may incorporate into their contracts any provisions that are not illegal, unconscionable, restricted by legislation, or violative of public policy,”); Matter of Part 60 Put-Back Litig., 165 N.E.3d 180, 188 (N.Y. 2020) (noting that New York courts “will enforce the bargain that contracting parties have freely made, absent some violation of law or trans- gression of a strong public policy.”). 410 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 49:2 separate analysis, as there are significant differences in how courts treat first-party and third-party harm when interpreting contracts. 1. Invoking the NYGA Against a Contract that Harms a Party A party seeking to invalidate a contract might argue that fulfilling the terms of the contract would abrogate that party’s right to clean air, clean water, or a healthful environment. The success of such an argument would depend heavily on the weight that courts give to the specific environmental rights harmed by the disputed contract. The mere fact that an agreement waives a protected right does not gen- erally invalidate it under New York law unless an overriding issue of public policy is invoked by such a waiver.276 The parties to a con- tract can—and frequently do—waive constitutional or statutory rights.277 New York law gives significant weight to the freedom to contract itself, and a contract purporting to waive legal rights is gen- erally enforceable unless enforcing it runs contrary to an overriding issue of public policy.278 However, this rule is a general one, and in certain highly sensitive circumstances doctrine or statute may forbid the waiver of specific legal rights.279 276. “An agreement is not necessarily against public policy because it waives a constitu- tional or statutory right. Generally, parties may agree to waive statutory rights unless a ques- tion of public policy is involved.” Matter of Validation Rev. Assocs., Inc., 646 N.Y.S.2d at 150 (quotations and citations omitted). 277. For example, settlement agreements almost universally involve one or more parties surrendering a legal claim to which they may have been legally entitled. See Glen Banks, Set- tlement Agreements, in 28 N.Y. CONTRACT LAW § 26:2 (Thomson Reuters ed. 2023) (noting that under New York law, “[a]fter a party executes a valid settlement agreement, it cannot subse- quently seek both the benefit of the agreement that is the subject of the settlement and the op- portunity to pursue the claim it agreed to settle” and that “[i]n order for there to be a settle- ment agreement, the parties must intend to terminate or discharge the claims being settled.”). 278. See New England Mut. Life Ins. Co. v. Caruso, 73 N.Y.2d 74, 81 (N.Y. 1989) (“Freedom of contract itself is deeply rooted in public policy . . . and therefore a decision to refrain from enforcing a particular agreement depends upon a balancing of the policy considerations against enforcement and those favoring the encouragement of transactions freely entered into by the parties.”); 159 MP Corp. v. Redbridge Bedford, LLC, 33 N.Y.3d 353 (N.Y. 2019) (citations and quotations omitted) (“Freedom of contract is a deeply rooted public policy of this state and a right of constitutional dimension.”). 279. For example, New York regulations provide that tenants cannot agree to waive any provision of New York’s Rent Stabilization Law or the enacting Rent Stabilization Code, and that any agreement that purports to waive those provisions is void. See N.Y. COMP. CODES R. & REGS. tit. 9, § 2520.13. Similarly, New York courts have held that “an agreement in purported or actual settlement of a landlord-tenant dispute which waives the benefit of a statutory pro- tection is unenforceable as a matter of public policy, even if it benefits the tenant.” Drucker v. Mauro, 814 N.Y.S.2d 43, 44 (N.Y. App. Div. 2006). 2024] The Private Litigation Impact of New York’s Green Amendment 411 A close analogy could be drawn between contracts that allocate environmental rights under the NYGA and surrogacy contracts, which involve voluntary contracting around the creation of children and associated parental rights. In the 1980s, New York had exten- sive laws governing the transfer of children from the custody of one set of guardians to another, by adoption or otherwise.280 However, these laws did not specifically provide for surrogacy contracts, in which one person agrees to conceive and bear a child with the goal of eventually transferring that child to the custody of another.281 Be- fore New York enacted surrogacy laws, these contracts presented a challenge for New York family courts, who were faced on one hand with consenting contracting parties, and on the other hand were asked to allow parties to enter into contracts that purportedly as- signed critical parental rights.282 In response to this challenge, New York courts found that if such contracts did not violate the adoption laws of New York they were not inherently void, but were voidable by the parties if a dispute arose, given the strong state interest in the welfare of children and extensive regulation of custody as a matter of public policy.283 The NYGA may make courts similarly cautious of enforcing contracts that damage the environmental rights of a con- tracting party, which, like surrogacy contracts in the 1980s, take place against a complex background of statutes and regulations de- signed to protect the impacted rights. Courts may also be more like- ly to declare contracts voidable under the NYGA where, as in Cape- France, the environmental harm occasioned by the contract could 280. See Matter of Paul, 550 N.Y.S.2d 815, 817–19 (N.Y. Fam. Ct. 1990) (discussing contem- poraneous laws governing adoption in New York). 281. See Deborah Machalow, note, Legislating Labors of Love: Revisiting Commercial Surro- gacy in New York, 90 IND. L.J. SUPPLEMENT, 2015, at 10–13 (providing a history of surrogacy laws in New York). 282. See generally In re Adoption of Baby Girl L.J., Anonymous, 505 N.Y.S.2d 813 (N.Y. Sur. Ct. 1986) (grappling with the issue throughout, and ultimately “request[ing] the legislature to review this serious problem”). 283. See Baby Girl L.J., 505 N.Y.S.2d at 817 (holding that surrogacy contracts “are not void, but are voidable because the individual state’s adoption statutes, which are designed to safe- guard the best interests of the child, take precedence over any agreement between the par- ties.”); Andres A. v. Judith N., 591 N.Y.S.2d 946, 948 (N.Y. Fam. Ct. 1992) (issuing a declaration of maternity and paternity in response to a petition from four individuals party to a surrogacy contract, and noting that “since the parties are all in agreement as to [issues of biological parenthood] the court does not have to rule on the legality of said surrogate contract.”); but see In re Paul, 550 N.Y.S.2d 815, 818 (N.Y. Fam. Ct. 1990) (declining to follow Baby Girl L.J., 505 N.Y.S.2d at 817, and concluding that surrogacy contracts are “void under the law of the State of New York” because of prohibitions against paid adoptions). 412 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 49:2 not have been anticipated by the parties and so was not considered in the initial bargained-for exchange.284 2. Invoking the NYGA Against a Contract that Causes Third- Party Environmental Harm A party seeking to invalidate a contract might also argue that ful- filling the terms of the contract would infringe on the environmental rights of third parties. While such a contract repudiation might be genuinely motivated by environmental conscience, a party invoking such an argument might also reasonably be worried, like the Cape- France plaintiff, about incurring environmental liability them- selves.285 The NYGA may prove to be a powerful tool for litigants ar- guing that an environmentally damaging contract should be deemed unenforceable as against public policy, even if the contracted activity is not necessarily illegal per se. Contract litigation focused on harm to third parties, or externali- ties, is treated significantly differently than litigation alleging that a contract impermissibly harms one of the parties. Conceptually, “[c]ontracts begin with private deals, but are bounded by public in- terests.”286 Most contracts create some externalities, good or bad, in that they affect people who are not party to them. While contract law generally focuses on the interests and intent of the parties to a contract, “parties’ freedom to advance their joint goals is cabined by nonparties’ legally protected interests.”287 While contract law has few mechanisms for formally assessing and protecting third-party interests,288 judges can incorporate the concerns of the public into contract law by declaring certain contracts void as against “public policy.”289 This concept, while seldom used in practice, sets outer boundaries on the extent to which contracts can harm third parties, and attempts to ensure that contracts proceed only “when the exter- 284. See supra Section III(A)(1)(ii)(a). 285. See supra note 79 and accompanying text (discussing the risk of environmental liabil- ity faced by the plaintiff in Cape-France). 286. Hoffman & Hwang, supra note 286, at 986. 287. Omri Ben-Shahar et. al., Nonparty Interests in Contract Law, 171 U. PA. L. REV. 1095, 1097 (2022). 288. Indeed, it is structurally difficult for parties to a contract to create effective and en- forceable protections for third parties in their contracts, even when they attempt to. See Kishanthi Parella, Contractual Stakeholderism, 102 B.U. L. REV. 865, 909 (2022) (discussing the issue of third-party protections in M&A agreements). 289. Ben-Shahar et. al., supra note 287, at 1098. 2024] The Private Litigation Impact of New York’s Green Amendment 413 nalities they create—which are inevitable—are acceptable to the public.”290 As previously discussed, New York courts will not enforce con- tracts that are deemed contrary to public policy.291 Addressing the key role of third-party interests in this determination, one New York court eloquently summarized the conceptual roots of the doctrine: The term ‘public policy’ has been defined as the principle which de- clares that no one can lawfully do that which has a tendency to be inju- rious to or against the public good will or welfare. The principle that contracts against public policy are void and unenforceable is not based upon any desire to relieve a party from the obligation which he has as- sumed, but rather is based upon the theory that such an agreement is injurious to the interests of society in general, and that the only way to stop the making of such contracts is to refuse to enforce them, leaving the parties without a remedy for a breach thereof.292 While contracts that require their parties to break the law are gen- erally unenforceable, there are otherwise very few bright lines to the doctrine.293 For example, in 1918 a Connecticut court, applying a similar doctrine in Hanford v. Connecticut Fair Association, refused to enforce a contract that required the parties to host a beauty contest for babies during a deadly outbreak of “infantile paralysis”—now known as polio.294 While the court gave no suggestion that perform- ing the contract would have been illegal, the majority opinion held that “[t]he court will not require the performance or award damages for a breach of a contract in which the public have so great an inter- est as the preservation of health, if the health is in fact endangered, no more than it would require one to be performed the tendency of which was immoral, or which interfered with the right of every one 290. Hoffman & Hwang, supra note 286, at 982. 291. Szerdahelyi v. Harris, 67 N.Y.2d 42, 48 (N.Y. 1986); see also Pecora v. Cerillo, 621 N.Y.S.2d 363, 366 (N.Y. App. Div. 1995) (“It has long been held that contracts that are in whole or in part against public policy are void”); In re Validation Rev. Assocs., Inc., 646 N.Y.S.2d 149, 150 (N.Y. App. Div.1996), rev'd on other grounds, 91 N.Y.2d 840 (N.Y. 1997) (“In general, par- ties may incorporate into their contracts any provisions that are not illegal, unconscionable, restricted by legislation, or violative of public policy,”); In re Part 60 Put-Back Litig., 36 N.Y.3d 342, 354 (N.Y. 2020) (noting that New York courts “will enforce the bargain that contracting parties have freely made, absent some violation of law or transgression of a strong public poli- cy.”). 292. Vill. of Upper Nyack v. Christian & Missionary All., 540 N.Y.S.2d 125, 130 (N.Y. Sup. Ct. 1988), aff’d, 547 N.Y.S.2d 388 (N.Y. App. Div. 1989). 293. “While some bargains are so offensive to society that courts will not entertain the ac- tion—essentially leaving the parties where they are—in other cases an illegal agreement is not so repugnant and may be enforced. It is all a matter of degree.” Denburg v. Parker Chapin Flat- tau & Klimpl, 82 N.Y.2d 375, 385 (N.Y. 1993). 294. Hanford v. Connecticut Fair Ass’n, 92 Conn. 621, 103 A. 838, 839 (Conn. 1918). 414 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 49:2 to earn a livelihood by a lawful occupation.”295 Summarizing Han- ford, Professors David Hoffman and Cathy Hwang emphasized that “[t]here is no general public health exception to contract enforce- ment—but the court found one.”296 More recently, New York courts have consistently refused to enforce contracts that purport to preemptively excuse medical malpractice, regardless of the intent of the parties, citing an overwhelming policy interest in maintaining the public welfare.297 Even without going so far as to declare a contract void, courts may modify their interpretation of contracts or the dam- ages awarded for contractual breaches based on explicit or implicit consideration of public policy.298 Despite the flexibility of this doctrine, courts do not universally consider third-party harm to be a violation of public policy. Absent a clear statutory mandate that makes a contract explicitly illegal, some courts may even be reluctant to consider apparent dangers to the public as public policy violations. For example, in N.J. Magnam Co. v. Fuller, a group hired a contractor to build a grandstand to certain specifications.299 When a part of the grandstand collapsed during construction, however, the contractor refused to proceed unless the plans were revised because he felt that the grandstand would not be safe for the public.300 The Supreme Judicial Court of Massachusetts held that the contract “contains no stipulation . . . that the grand stand . . . would be safe when completed,” and granted judgment against the contractor, giving no weight to public safety whatsoev- er.301 Recent scholarship examining the enforcement of contracts during pandemics has noted that courts vary in their willingness to 295. Hanford v. Connecticut Fair Ass’n, 92 Conn. 621, 103 A. 838, 839 (Conn. 1918). 296. Hoffman & Hwang, supra note 286, at 981. 297. See, e.g., Ash v. New York Univ. Dental Ctr., 564 N.Y.S.2d 308, 311 (N.Y. 1990) (citing Johnston v. Fargo, 184 N.Y. 379, 385 (N.Y. 1906)) (refusing to enforce a purported medical malpractice waiver that a dental patient signed in exchange for discounted dental care from a medical teaching institution, and finding that such waivers were unenforceable as against pub- lic policy); Poag v. Atkins, 806 N.Y.S.2d 448 (N.Y. Sup. Ct. 2005) (finding that a purported mal- practice waiver signed by a cancer patient seeking an experimental vitamin-based cancer treatment, and knowingly foregoing more traditional cancer treatments like chemotherapy or radiation treatment, “offends public policy”). 298. See Ben-Shahar et. al., supra note 287, at 1131–32 (discussing the development of “restoration damages” for breaches of contractual promises by mining companies to restore land, reflecting courts’ recognition of the fact “that the accumulation of unrestored land has a devastating negative effect on society.”). 299. N.J. Magnam Co. v. Fuller, 222 Mass. 530, 533 (Mass. 1916). 300. Id. 301. Id. at 534. 2024] The Private Litigation Impact of New York’s Green Amendment 415 consider public hazards, especially when they lack executive or legis- lative guidance.302 With this mixed record of judicial concern for third-party harm, the passage of the NYGA may, quite reasonably, inspire New York courts to weigh environmental interests more heavily in public poli- cy analysis. As a constitutional right supported by the majority of New York voters,303 the NYGA memorializes a very direct public pol- icy of protecting the right to a clean and healthful environment. If New York courts were to cite the NYGA as establishing a policy dis- favoring the enforcement of environmentally damaging contracts, they would be following a long tradition of judicial deference to stat- utory priorities for guidance on public policy. For example, prior to the growth of state legislation requiring the restoration of strip mines, “courts tended to ignore [the] social harm [of environmental damage] when adjudicating contract breach lawsuits brought by owners against mining companies that left the grounds unre- stored.”304 However, following the passage of such laws, judges, “[e]xplaining that the social policy had changed . . . required breach- ing companies to pay for the full cost of restoration.”305 The NYGA similarly offers New York courts a new constitutional mandate to consider third-party environmental harms in interpreting contracts. B. The NYGA and the Common Law of Nuisance There is another area of private litigation that may be dramatically shaped by the NYGA, even if courts determine that the NYGA does not create a cause of action between two parties: common law doc- trines that relate to individual environmental rights. Common law arises from a combination of tradition, social recognition, and judi- cial precedent.306 A constitutional amendment represents both an act of supreme lawmaking and a strong statement of societal priori- 302. See Hoffman & Hwang, supra note 286, at 1002 (“[I]t’s not obvious that courts are al- ways willing to wait for the sanction of other branches of government before declaring con- tracts to be hazardous.”). 303. See New York’s Environmental Right Repository: History of the Amendment, PACE U., https://nygreen.pace.edu/ [https://perma.cc/4JHA-5BGT] (last visited Apr. 12, 2024). 304. See Ben-Shahar et. al., supra note 287, at 1140. 305. Id. at 1141. 306. Mark S. Coven, The Common Law as a Guide to State Constitutional Interpretation, 54 SUFFOLK U.L. REV. 279, 299 (2021) (describing the structure of common law, and noting that “the common law is constantly changing as the attitudes of the state’s populace changes. The common law is not static and reflects the state’s changing fundamental beliefs and mores.”). 416 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 49:2 ties, and so could lead to a fundamental reordering of common law. While, as this Subsection will discuss, there are significant limits to this thesis, the environmental rights protected in the NYGA may sig- nificantly change the way that New York’s lawyers and judges inter- pret environmental common law doctrines in private litigation. 1. Constitutional Amendments and the Common Law The relationship between constitutional amendments and com- mon law is complex. At a superficial level, the New York Constitution is the state’s highest law,307 and the enactment of a new constitu- tional amendment supplants or nullifies any inconsistent common law doctrine.308 On that level, any modification of constitutional rights may be said to throw open the whole of the common law to reexamination. However, New York law also contains a presumption that amendments are not intended to change the common law unless “the express declarations or reasonable implications” of an amend- ment are inconsistent with preexisting doctrines.309 While the NYGA cannot, therefore, be viewed as a complete “reset button” for envi- ronmental common law, New York courts may increasingly look to the NYGA as a source of norms for common law interpretation and as a tool to distinguish pre-NYGA common law precedent. Scholars have long recognized that constitutions, and particularly state constitutions, can have significant impacts on common law doc- trines. State litigation between private parties “routinely proceeds under the common law,” which often embodies a set of rights against private actors that parallel state constitutional rights against gov- 307. See Sage v. City of New York, 154 N.Y. 61 (N.Y. 1897) (referring to New York’s 1777 Constitution as “the result of all the legislative power that the people of the state of New York, untrammeled by any higher law, could exert”); see also John Bourdeau et al., § 2 Nature and Structure of New York Constitution, in 20 N.Y. JUR. 2D CONST. L. (Nov. 2023) (“The New York Constitution has been described as a fundamental act of legislation by the people of the state. Within the field in which it operates, it is the supreme law of the state.”). 308. Bourdeau et al., supra note 307. 309. John Bourdeau et al., § 16 Effect of Constitutional Provision on Common Law, in 20 N.Y. JUR. 2D CONST. L. (Nov. 2023). This principle reflects a general rule in New York statutory inter- pretation that “[r]ules of the common law are to be no further abrogated than the clear import of the language used in the statute absolutely requires.” Transit Comm’n v. Long Island R. Co., 253 N.Y. 345, 355 (1930); In re Liquidation of Midland Ins. Co., 16 N.Y.3d 536, 547 (N.Y. 2011) (describing this interpretive rule as “axiomatic”). New York Courts have applied this principle in assessing the impact of constitutional amendments on the common law. See W. New York Water Co. v. Brandt, 259 A.D. 11, 16 (N.Y. App. Div. 1940) (“The common law is repealed by the Constitution to the extent that it is inconsistent therewith and only to that extent.”). 2024] The Private Litigation Impact of New York’s Green Amendment 417 ernment actors.310 Even where private individuals are barred from enforcing a constitutional right against other private parties, “[t]hat conclusion . . . does not and should not foreclose a state court from asking a separate and analytically distinct question:” whether such an action is permitted under state common law.311 These parallel causes of action can then “serve as a pathway for the indirect en- forcement of constitutional values in disputes that do not involve a government actor.”312 This dynamic played out in a set of state cases addressing political speech on private property, sometimes called the “Shopping Mall Cases.”313 As shopping centers became increasingly prevalent in the 1970s and 1980s, the locus of public commercial activity shifted from publicly owned downtowns to privately owned shopping malls.314 This dynamic confronted courts across the United States with an increasing number of disputes between shopping mall own- ers and private individuals seeking to engage in political or expres- sive speech.315 After several opinions in the Supreme Court found that the First and Fourteenth Amendments to the U.S. Constitution “have no part to play” in disputes about political activity on private property,316 the Supreme Court “handed the baton to the states to 310. Judith S. Kaye, Foreword: The Common Law and State Constitutional Law as Full Part- ners in the Protection of Individual Rights, 23 RUTGERS L.J. 727, 742, (1992); Id. at 732 (noting that “the mere fact that a common law right received constitutional recognition did not signify that it was thereby extinguished as a common law right.”). Indeed, common law rights often precede constitutional rights, and serve as a basis for their structure. See Edward S. Corwin, The “Higher Law” Background of American Constitutional Law, 42 HARV. L. REV. 149, 170 (1928) (“Many of the rights which the Constitution of the United States protects . . . against legislative power were first protected by the common law against one’s neighbors”). 311. Hershkoff, supra note 272, at 7–8. 312. Id. at 8. 313. Kaye, supra note 310, at 739 (using the phrase “shopping mall cases” to describe this set of decisions); Hershkoff, supra note 272, at 7–8 (describing common law claims associated with shopping mall use that parallel constitutional rights); Note, Private Abridgment of Speech and the State Constitutions, 90 YALE L.J. 165, 168–69 (1980) (referring to cases around “shop- ping centers”). 314. See Note, Private Abridgment of Speech and the State Constitutions, 90 YALE L.J. 168–69 (1980). 315. See id. (describing the changing cultural dynamics underlying these cases); see also Kaye, supra note 310, at 739 (noting that, as a set, these cases dealt with “[t]he central legal question [of] whether individuals have a right of access to privately-owned shopping malls to gather petitions or engage in other expressive activity.”). 316. See Lloyd Corp., Ltd. v. Tanner, 407 U.S. 551, 567 (1972) (holding, in a case about Vi- etnam War protestors ejected from a shopping mall for distributing leaflets, “that the First and Fourteenth Amendments safeguard the rights of free speech and assembly by limitations on state action, not on action by the owner of private property used nondiscriminatorily for pri- vate purposes only.”); Hudgens v. NLRB, 424 U.S. 507, 520–21 (1976) (holding, in a dispute 418 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 49:2 decide whether, under their own constitutions, they would offer more expansive rights than had been found under the federal Consti- tution.”317 In response to the Supreme Court’s shopping mall decisions, courts in some states, like California, found that their state constitu- tional rights “protect[ed] ‘speech and petitioning, reasonably exer- cised, in shopping centers even when the centers are privately owned.’”318 Other state courts refused to apply state constitutional rights against private actors, but instead reached similar conclusions under the common law. While, as discussed above, New York itself took a different approach, and decided its own “Shopping Mall Case,” SHAD Alliance, on strictly constitutional grounds,319 these cases illus- trate the influence that state constitutional rights can have on non- constitutional common law doctrines. In Lloyd Corp. v. Whiffen, the owner of a privately owned shopping center sought an injunction against a group of individuals who entered the mall to seek signa- tures for ballot initiative petitions.320 The Oregon Court of Appeals reversed an initial injunction, holding that a blanket injunction against political speech in a shopping mall “violated defendants’ rights of expression under Article I, Section 8, of the Oregon Consti- tution.”321 The Oregon Supreme Court, on appeal, rejected the par- ties’ attempts to categorize the case as a constitutional one “without first examining the parties’ rights on a sub-constitutional level.”322 Applying doctrines of private nuisance and trespass, a majority of the Oregon Supreme Court determined that blanket injunctive relief was inappropriate because the potential harm to the plaintiff was significantly less than the importance of the enjoined activity to the public.323 In doing so, the Oregon Supreme Court acknowledged the about striking workers ejected from a private shopping center for distributing pamphlets, “that if the respondents in the Lloyd case did not have a First Amendment right to enter that shop- ping center distribute handbills concerning Vietnam, then the pickets in the present case did not have a First Amendment right to enter this shopping center for the purpose of advertising their strike against the Butler Shoe Co. We conclude, in short, that under the present state of the law the constitutional guarantee of free expression has no part to play in a case such as this.”). 317. Kaye, supra note 310, at 739. 318. PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 78 (1980) (quoting and affirming Rob- ins v. Pruneyard Shopping Ctr., 592 P.2d 341, 347 (Cal. 1979)). 319. See supra note 204 and accompanying text. 320. See Lloyd Corp. v. Whiffen, 773 P.2d 1294, 1296 (Or. 1989). 321. Id. at 1295. 322. Id. at 1297. 323. Id. 2024] The Private Litigation Impact of New York’s Green Amendment 419 centrality of political constitutional rights to its decision without finding that Oregon’s constitution itself created a cause of action against private individuals.324 In a 1992 article discussing the inter- section of constitutional and common law rights, New York Court of Appeals Judge Judith Kaye observed approvingly that, “without con- stitutionalizing the result, the [Whiffen] court injected state constitu- tional values—here, Oregon’s constitutional provisions regarding the process of filing petitions and obtaining signatures—into a tradi- tional balancing test” under Oregon’s common law.325 2. Casting the NYGA’s Shadow on New York’s Common Law The NYGA, as a new and powerful statement of societal values, may have a significant impact on New York’s common law. As Whiff- en demonstrates, state courts have a long history of importing con- stitutional norms “into areas of private life that are outside the reach of federal constitutional protection and usually are considered to be beyond constitutional influence of any sort,” from wrongful termina- tion to contractual interpretation.326 The norms and meaning of the NYGA have yet to be firmly established by courts,327 and at this point it is difficult to predict the precise impact that NYGA may have on New York’s common law. However, the NYGA offers a vehicle for at- torneys to challenge aspects of pre-NYGA common law that conflict with the text or implications of the NYGA, and offers judges an op- portunity to “indirectly enforce state constitutional norms” through 324. See id. at 1301 (holding that “[t]he public policy behind the signature-gathering pro- cess limits equitable enforcement of plaintiff's preferred total exclusion of signature solici- tors.”). 325. Kaye, supra note 310, at 741. Judge Kaye also cites to the New Jersey Supreme Court’s decision in State v. Shack, which similarly used policy considerations imported from constitu- tional law to inform common law doctrines defining property rights. See id. at 741–42; see also State v. Shack, 277 A.2d 369, 371–72 (N.J. 1971) (refusing to address a constitutional challenge to a trespassing statute, but holding that a farmer’s property rights did “not include the right [to] bar access to government services available to migrant workers.” The New Jersey Supreme Court further noted that “[t]he policy considerations which underlie that conclusion may be much the same as those which would be weighed with respect to one or more of the constitu- tional challenges.”). 326. Hershkoff, supra note 272, at 11 327. See Gordon J. Johnson, New York State Constitution Article I, § 19 “Environmental Rights”, in ENVIRONMENTAL LAW AND REGULATION IN NEW YORK § 1:1.50 (William R. Ginsberg & Philip Weinberg ed., 2023) (reviewing litigation to date under the NYGA). 420 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 49:2 the application of common law in disputes between private par- ties.328 One doctrinal area may be particularly open to revision post- NYGA: the doctrine of private nuisance. Private nuisance is a legal cause of action in common law that arises when one party’s action or inaction clashes with another party’s use of property. Under New York law, a party may be liable for a private nuisance if their conduct invades another’s “interest in the private use and enjoyment of land and such invasion is (1) intentional and unreasonable, (2) negligent or reckless, or (3) actionable under the rules governing liability for abnormally dangerous conditions or activities.”329 Setting aside, for the moment, actions deemed negligent or reckless or activities that are abnormally dangerous, the elements of an intentional private nuisance are: “(1) an interference substantial in nature, (2) inten- tional in origin, (3) unreasonable in character, (4) with a person's property right to use and enjoy land, (5) caused by another's conduct in acting or failure to act.”330 Private nuisance is often the basis for claims against private entities that allege private environmental harms.331 As such, common law claims alleging private environmen- tal nuisances may have a close nexus to the environmental rights guaranteed by the NYGA, and may be particularly likely to be influ- enced by the NYGA. As the Oregon Supreme Court demonstrated in Whiffen, private nuisance can be an appealing place for courts to in- corporate constitutional norms into private actions.332 Two particular elements of private nuisance may be significantly impacted by the NYGA: (1) the unreasonableness of challenged ac- 328. Hershkoff, supra note 272, at at 4. Professor Hershkoff describes this practice as “dis- tinct from mere policymaking,” because interpreting constitutional statements of public policy legitimizes, justifies, and constrains courts’ existing policymaking “when they look to changed circumstances, concepts of reasonableness, or contemporary social concerns that generate new expectations.” Id. at 4, 12, 13. 329. Copart Indus., Inc. v. Consol. Edison Co. of New York, 362 N.E.2d 968, 971 (N.Y. 1977). 330. Id. at 570. 331. See Chenango, Inc. v. Cnty. of Chenango, 681 N.Y.S.2d 640, 640 (N.Y. App. Div. 1998) (arising from a dispute about “odors, noise and vibrations” emanating from a landfill); Allen v. Gen. Elec. Co., No. 2001/03711, 2003 WL 22433809, at *1 (N.Y. Sup. Ct. Sept. 29, 2003), aff’d, 16 A.D.3d 1095 (N.Y. App. Div. 2005) (permitting a private nuisance claim arising from a plain- tiff’s proximity to a “toxic waste environmental spill and remediation effort” to go forward); New York et al., v. Fermenta ASC Corp., 238 A.D.2d 400, 403 (N.Y. App. Div. 1997) (discussing an environmental private nuisance claim arising from a chemical release). 332. See Lloyd Corp. v. Whiffen, 773 P.2d 1294, 1299 (Or. 1989) (evaluating a proposed in- junction’s “effect on the public interest,” and noting that the enjoined “signature-gathering process for political petitions is a form of political speech and no one contests that free speech is one of our society's most precious rights.”). 2024] The Private Litigation Impact of New York’s Green Amendment 421 tions, and (2) such actions’ intrusions on property rights. The ques- tion of whether an interference is “unreasonable in character” explic- itly considers societal norms. Under New York common law, a claim of private nuisance hinges “upon the demonstrated unreasonable- ness of the nuisance creator in view of his own needs and those of his neighbors.”333 Private nuisance cases are often disputes arising from “conflicting though valid uses of land,”334 rather than from alle- gations that a particular use is categorically prohibited. This as- sessment relies as much on the factual and social context of an action as on black-letter law or legal precedent.335 “[N]ot every intrusion will constitute a nuisance. ‘Persons living in organized communities must suffer some damage, annoyance and inconvenience from each other.’”336 In such a context, the NYGA may support courts or advo- cates granting significant weight to environmental harms. Similarly, the question of whether a particular activity harms a property interest can be significantly impacted by other constitu- tional rights. While “property” may seem like an inviolate institu- tional monolith, property interests are generally created and defined by sources like state law and common law; “rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.”337 As previously discussed, courts and scholars have long recognized that constitutional protections of speech and ex- pression have had “a very significant impact on the use, enjoyment 333. Mandell v. Pasquaretto, 350 N.Y.S.2d 561, 566 (N.Y. Sup. Ct. 1973). 334. Little Joseph Realty, Inc. v. Town of Babylon, 363 N.E.2d 1163, 1168 (N.Y. 1977). 335. Great Atl. & Pac. Tea Co. v. New York World's Fair 1964-1965 Corp., 249 N.Y.S.2d 256, 258 (N.Y. Sup. Ct. 1964) (“The test as to the permissible use of or action upon one's own land is not whether the use causes injury to a neighbor’s property, or that the injury was its natural consequence, or that the act is in the nature of a nuisance, but is as to whether the act or use is a reasonable exercise of the dominion which the owner has over his property.”). 336. Nussbaum v. Lacopo, 27 N.Y.2d 311, 315 (N.Y. 1970) (quoting Campbell v. Seaman, 63 N.Y. 568, 577 (N.Y. 1876)). 337. Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972) (“Property interests, of course, are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and that support claims of en- titlement to those benefits.”); see also Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1030 (1992) (internal quotations omitted) (remarking that the Supreme Court traditionally resorts to “ex- isting rules or understandings that stem from an independent source such as state law to de- fine the range of interests that qualify for protection as ‘property’ under the Fifth and Four- teenth Amendments”); see also Samuel C. Kaplan, Grab Bag of Principles or Principled Grab Bag?: The Constitutionalization of Common Law, 49 S.C. L. REV. 463, 504 (1998) (describing the conclusion in Lucas that property rights derive from state and common law sources as “largely unremarkable” as a matter of constitutional law). 422 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 49:2 and control of property.”338 Similarly, social and constitutional pro- tections for privacy have created defensible property interests,339 and vice versa.340 As such, courts may reasonably read the NYGA as strengthening property interests in environmental wellbeing, and weakening property rights that result in negative environmental ex- ternalities.341 Under such a reading, the NYGA may render New York courts more likely to find that private nuisance plaintiffs have pro- tectable property interests in their environmental wellbeing, and that actions that harm those environmental interests are unreasona- ble. VI. CONCLUSION The fifteen words of the NYGA promise ambitious but ambiguous environmental rights. But the promise of those rights may die on the vine if judicial interpretations reduce the NYGA and other green amendments to environmental platitudes, rather than defensible en- titlements.342 The first case to interpret the NYGA, Fresh Air I, threatens to immediately diminish its scope by holding, with little discussion, that the NYGA provides no protection against private pol- luters.343 In response to this threat, the analysis in this article is of- 338. Robert A. Sedler, Property and Speech, 21 WASH. U. J.L. & POL’Y 123, 123 (2006). 339. Katz v. United States, 389 U.S. 347, 352 (1967) (“One who occupies [a telephone booth], shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world.”). 340. Rakas v. Illinois, 439 U.S. 128, 153 (1978) (“property rights reflect society’s explicit recognition of a person’s authority to act as he wishes in certain areas, and therefore should be considered in determining whether an individual's expectations of privacy are reasonable.”). 341. While not directly related to private litigation, the NYGA may significantly impact en- vironmental property expectations in the “takings” context. “If a state’s background rules of property forbid certain uses, then those restrictions, such as common-law nuisance re- strictions, ‘inhere in the title itself,’ and the property owner purchases the property subject to those conditions.” Kaplan supra note 337 at 505. See, e.g., Lucas, 505 U.S. at 1034–35 (J. Kenne- dy, concurring) (noting that, for the purpose of determining whether environmental regulation constituted a “taking” of property, the owner’s “reasonable expectations must be understood in light of the whole of our legal tradition. The common law of nuisance is too narrow a confine for the exercise of regulatory power in a complex and interdependent society.”). 342. See Yeargain, supra note 16, at 48–49 (2023) (arguing that “[t]he jurisprudential reali- ties of the American court system are ultimately the biggest drawback of environmental bills of rights in state constitutions,” and, while expressing skepticism as to the overall effectiveness of constitutional environmental rights, noting that “[i]f an environmental-rights provision ap- plied perfectly—that is, if it were self-executing, if it were recognized by a state supreme court as conferring a private right of action, and if the terms in the right were adequately defined—it would be perfectly suited to challenging individual acts of pollution.”). 343. See supra Part II (discussing the Fresh Air cases). 2024] The Private Litigation Impact of New York’s Green Amendment 423 fered a resource for judges, litigants, and scholars attempting to in- terpret and apply New York’s environmental right. This Article addresses a threshold question raised by the NYGA and other constitutional environmental rights: do they provide a pri- vate cause of action against private parties? In resolving this ques- tion, we have closely scrutinized the relationship between the NYGA and other elements of New York’s Bill of Rights, the legislative histo- ry of the NYGA, constitutional litigation under other states’ green amendments, and the broader structure of New York’s environmen- tal law. From this broad historical, comparative, and contextual analysis, we conclude that the Fresh Air I decision wrongly dismissed the idea that the NYGA constrains private parties. A more compre- hensive assessment casts doubt on Fresh Air I’s cursory analysis, and provides strong arguments in favor of interpreting the NYGA as ena- bling private suits against private parties. We further argue that, whether New York’s courts overturn the Fresh Air cases and permit private litigation under the NYGA, the NYGA may have a significant impact on private litigation through doctrines that incorporate pub- lic policy or societal norms of “reasonableness.” At each step, this Article urges courts, attorneys, and scholars to view the NYGA as a sea change in New York’s environmental law, rather than a toothless cliché. In narrowly focusing on the key threshold question of whether the NYGA binds private parties, many significant questions about the NYGA fall outside of this article’s scope. In the coming years, New York’s courts will undoubtedly grapple with a wide range of ques- tions, ranging from the definitions of ambiguous terms like a “health- ful environment” and “clean air and water” to process issues like the appropriate plaintiffs and available remedies. In focusing on the in- terpretive question of whether the NYGA provides rights against pri- vate action, this article also leaves unaddressed a key normative question: should the NYGA constrain private action? New York, and the world, face an increasingly urgent pressure to adapt our society, economy, and legal system to the physical and societal impacts of climate change. Would a private cause of action against private par- ties under the NYGA allow plaintiffs to supplement the enforcement 424 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 49:2 resources of New York’s government in this titanic struggle?344 Or would such a cause of action simply provide another veto point for well-resourced litigants to block the changes to our physical envi- ronment that this struggle requires?345 In concluding that the NYGA likely permits private litigation, this article leaves the answer to this equally important question to the reader, and to future generations of New Yorkers. 344. See Barry Breen, Citizen Suits for Natural Resource Damages: Closing A Gap in Federal Environmental Law, 24 WAKE FOREST L. REV. 851, 874–877 (1989) (arguing that there is “much to gain” from allowing private environmental suits, as such suits increase environmental en- forcement, supplement public enforcement budgets, and “dramatically increase polluters’ ex- posure to liability,” and there is “little to lose” because such suits “are merely a procedural de- vice for enforcing the substantive law”). 345. See Michael B. Gerrard, A Time for Triage, 39 ENV’T F. 38 (2022) (discussing the ten- sion between short-term environmental protection and the necessity to quickly build renewa- ble energy to combat climate change); see also Transcript of the New York State Assembly on February 8, 2021, supra note 26, at 42–44 (Assemb. Palmesano) (expressing concerns about NYGA claims being brought against wind developers). I. Introduction II. Private Litigation under the NYGA: The Fresh Air Cases III. Private Litigation Under State Environmental Law A. Private Litigation Under Other Green Amendments 1. Montana: Explicit Private Obligation, Ambiguous Private Implication a. The History and Structure of the MGA b. Private Litigation under the MGA c. MGA as a Legal Obligation for Private Parties d. MGA as a Standalone Cause of Action 2. Pennsylvania: No Explicit Private Obligation, Limited Private Implication a. The History and Structure of the PGA b. Private Litigation under the PGA c. PGA as a Limit on Private Property Rights d. PGA as a Vehicle for Public Nuisance Claims B. Private Litigation under New York’s Environmental Laws 1. The “Forever Wild” Provision 2. Private Actions under SEQRA 3. Private Actions under other Environmental Laws IV. Revisiting the Fresh Air Cases A. The NYGA Arises in a Unique Constitutional Context that Should Shape Its Interpretation B. To the Extent Legislative History is Relevant, it Shows that the Legislature was Divided on Whether the NYGA Allows Suits against Private Parties. C. Comparison with other Green Amendments is Inconclusive. D. A Private Cause of Action under the NYGA is Consistent with New York’s Environmental Law V. Suing in the Shadow of the Green Amendment A. The NYGA and Contract 1. Invoking the NYGA Against a Contract that Harms a Party 2. Invoking the NYGA Against a Contract that Causes Third-Party Environmental Harm B. The NYGA and the Common Law of Nuisance 1. Constitutional Amendments and the Common Law 2. Casting the NYGA’s Shadow on New York’s Common Law VI. Conclusion