On March 7, 2024, Alex Daniel, counsel for the New Jersey Civil Justice Institute, testified before the Senate Environment and Energy Committee concerning the proposed “Green Amendment,” which seeks to create a self-executing, constitutional right to a “clean and health environment,” which the State of New Jersey “shall not infringe upon . . . by action or inaction.”

In both its written comment and during testimony, NJCJI took the position that while the Green Amendment was seemingly well intentioned, it could be easily abused to supplant both the Legislature and executive agencies as the primary makers of environmental policy in the State. NJCJI observed that private litigants could bring claims against the State under the New Jersey Civil Rights Act (“NJCRA”) to enforce their nebulous rights to “a clean and healthy environment,” and thus upend the current regulatory regime.

NJCJI observed that the current process for developing environmental regulations begins in the Legislature, which sets environmental protection priorities. Through enabling acts, the Legislature then tasks executive agencies with developing science-based standards for meeting those priorities. Critically, the processes for developing those standards have built-in safeguards intended to permit a wide range of stakeholders to voice their concerns, while keeping governmental experts and staff in the policymaking “driver’s seat.” By contrast, the Green Amendment could be used to subvert the policy concerns of elected officials through litigation.

NJCJI explained that because the rights outlined by the Green Amendment are vague and ill-defined, an interminable number of meanings could be read into the amendment. Moreover, because the Green Amendment is self-executing, litigants would be able to wield it as a cudgel by bringing NJCRA claims against the State. Any private litigant who disagrees with the priorities set by the Legislature and standards developed by agency experts could bring a claim in court to enjoin the State. Given that prevailing parties to NJCRA claims are entitled to not only injunctive relief, but also money damages, civil penalties, and attorneys’ fees, strong incentives exist to encourage plaintiffs and attorneys to file Green Amendment claims.

In addition to granting private litigants the power to challenge the merits of environmental regulations, NJCJI opined that litigants may use the Green Amendment to force the State to affirmatively regulate human activities that conflict with their amorphous right to a clean environment. Even after studied deliberation and policymaking, if the Legislature and executive agencies elect not to act concerning certain human activities, litigants may assert NJCRA claims against the State on the basis that its inaction harmed the litigants’ Green Amendment rights.

NJCJI noted that the abuse of the Green Amendment by litigants could extend well beyond environmental regulations. Any action taken by the State, its agencies, local governments, or any entity operating under the color of law would be subject to an NJCRA suit pursuant to the Green Amendment. For example, NJCJI explained that a current major priority of the State has been encouraging the development of offshore wind power to meet energy needs in a sustainable and environmentally sound fashion. Despite the importance of these efforts, the Green Amendment could provide a powerful means for even a single aggrieved litigant to challenge offshore wind facilities so long as that litigant can assert those projects harm their environmental rights. Similarly, the State’s electric vehicle mandate could be challenged if litigants can demonstrate that the production and use of lithium-ion batters in vehicles impacted their right to a clean environment.

Despite pushback by NJCJI and other concerned stakeholders, the Green Amendment was voted out of committee on March 15, 2024, with amendments, and referred to the Senate Budget and Appropriations Committee. These changes to the Green Amendment ostensibly address some of NJCJI’s concerns, but the fundamental problems with it, outlined above, still remain. NJCJI will continue to follow the progress of the Green Amendment and advocate against it to protect both the State of New Jersey and its business community against frivolous litigation and lawsuit abuse.

A link to the Green Amendment can be found here. A link to Daniel’s testimony can be found here, starting at the 1:07 mark. A link to NJCJI’s written comment can be found here.