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Cardozo Law Review

Abstract

State-level environmental rights amendments, commonly referred to as “Green Amendments,” embody inspired ideals of the environmental conditions owed to all. Their aspirational language—promising a clean and healthful environment for present and future generations—intuits bold action. Nonetheless, when leveraged as a standalone cause of action, the Green Amendment’s ability to exact substantive outcomes has proven less inspired, and jurisprudence in the three Green Amendment states—New York, Pennsylvania, and Montana—reveals several shortcomings. These include that the Green Amendment has been interpreted as providing only procedural rights, the Green Amendment generally does not reach private parties, the Green Amendment’s broad language begets circumspect statutory interpretation, and the Green Amendment’s legislative history lacks consensus on crucial questions.

Acknowledging these shortcomings, this Note offers a proposal. The Green Amendment would be more effectual if it instead operated as a presumption in favor of the environmentally friendly outcome in cases of statutory ambiguity—in other words, a climate justice canon of construction. In the face of multiple plausible interpretations of statutory text, judges would be obliged to tip the scales in favor of the interpretation that would promote the constitutional objective of effectuating a clean and healthful environment. This approach would produce substantive outcomes in environmental litigation while also empowering the Green Amendment with influence in the adjudication of cases where the claims proffered are not expressly environmental in nature.

Despite the misgivings of a sect of textualist canon-critics, this Note argues that normative canons boast myriad benefits as an interpretive device. Namely, they encourage dialogue between the judiciary and the legislature in the lawmaking process, promote clarity and coherence in the law, stymie special interest promotion via the adoption of purposely ambiguous statutes, and reinforce the role of judges as collaborators in the enterprise of lawmaking. In the environmental context, the gravity of the threat posed by climate catastrophe moreover justifies this novel application, and the Green Amendment’s locale within the state court system provides a useful forum for judicial innovation on a smaller scale.

Furthermore, this Note argues that this novel approach is justified when considering that a hypothetical Green Amendment canon would formalize the Jeffersonian concept of “usufruct”—that is, the idea that the lands exist as intergenerational commons in favor of our posterity. The ideal of usufruct, ultimately reflected in the preamble of the United States Constitution, provides a solid foundation upon which a new Green Amendment jurisprudence could be staked. In service of this claim, this Note looks to three case studies, concluding with an inquiry into how a climate justice canon could have exerted relevance in a dispute over New York City’s congestion pricing program.

Disciplines

Environmental Law

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