On March 7, 2024, Alex Daniel, counsel for the New Jersey Civil Justice Institute (NJCJI), testified before the Senate Environment and Energy Committee regarding the proposed “Green Amendment.” This amendment aims to establish a self-executing constitutional right to a “clean and healthy environment,” which the State of New Jersey “shall not infringe upon . . . by action or inaction.”
In its written comments and during testimony, NJCJI expressed concerns that while the Green Amendment appears well-intentioned, it could be misused to override both the Legislature and executive agencies as primary makers of environmental policy in New Jersey. NJCJI noted that private litigants might bring claims against the State under the New Jersey Civil Rights Act (NJCRA) to enforce their rights to a "clean and healthy environment," potentially disrupting the current regulatory framework.
NJCJI highlighted that environmental regulations currently begin with legislative priorities. Through enabling acts, these priorities are handed over to executive agencies responsible for developing science-based standards. These processes include safeguards allowing various stakeholders to voice their concerns while keeping governmental experts at the forefront of policymaking. In contrast, NJCJI argued that the Green Amendment could undermine elected officials' policy decisions through litigation.
The institute pointed out that because the rights outlined by the Green Amendment are vague, they could be interpreted in numerous ways. Since it is self-executing, litigants could use it to bring NJCRA claims against the State. Any private individual disagreeing with legislative priorities or agency standards could file a court claim to enjoin the State. Prevailing parties in such claims are entitled not only to injunctive relief but also money damages, civil penalties, and attorneys’ fees—creating strong incentives for plaintiffs and attorneys to file Green Amendment claims.
Beyond challenging environmental regulations' merits, NJCJI suggested that litigants might use the Green Amendment to compel affirmative regulation of human activities conflicting with their perceived right to a clean environment. Even if legislative bodies and executive agencies decide not to act on certain issues after careful deliberation, litigants might still assert NJCRA claims based on alleged harm from state inaction.
NJCJI warned that misuse of the Green Amendment could extend beyond environmental regulations. Any state action or inaction by its agencies or local governments could be subject to an NJCRA suit under this amendment. For instance, efforts like offshore wind power development or electric vehicle mandates could face legal challenges if litigants claim these initiatives harm their environmental rights.
Despite opposition from NJCJI and other stakeholders, the Green Amendment was voted out of committee on March 15, 2024, with amendments and referred to the Senate Budget and Appropriations Committee. While some changes were made addressing certain concerns raised by NJCJI, fundamental issues remain unresolved. NJCJI plans to continue monitoring the progress of this amendment and advocate against it to protect New Jersey's interests from potential frivolous litigation.
