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NJBIA is opposing a constitutional amendment that attempts to establish that every person has a legal right to a clean environment because it will lead to a surge in costly litigiation and create uncertainty that would jeopardize financing for public infrastructure and private development projects.

Senate Concurrent Resolution 43 (Greenstein, D-14; Zwicker, D-16), which is up for discussion in the Senate Energy and Environment Committee today, is well-intentioned, according to NJBIA Deputy Chief Government Affairs Officer Ray Cantor.

However, he said, the so-called “Green Amendment” essentially transfers policymaking power and important deliberations away from the Legislature and to the courts, with unknown implications.

“It is crafted on the premise that the Legislature cannot be trusted to protect the public and make the right decisions,” Cantor said in written testimony. “It seeks to go around the Legislature, and the Governor and Executive Branch as well, and allow any person to go to the courts to get the result they want.

“(With the legislative process) there is debate, there is compromise, there are hard choices. All sides are represented. Representative democracy works. Sometimes it is messy sausage making. Sometimes we don’t get what we want. But at the end of the day, we make progress. And if we don’t like the results, we have elections.”

In his testimony, Cantor provided some examples of unanswered questions if SCR-43 were to become a constitutional provision, including:

  • “Would any warehouse, office, or housing development be able to be built if challenged under this green amendment? The uncertainty alone will be enough to deter many developers from even trying to build anything new in New Jersey. Who would provide financing for a project subject to a court ruling on a vague constitutional standard with no underlying statute or regulations?”
  •  “What about a road or public infrastructure project or a recycling or food waste project?”
  • “What about wind energy? Would offshore wind meet a ‘pure water’ or ‘preservation of the natural, scenic, historic, and esthetic qualities of the environment’ test once it is enshrined in our constitution?”
  • “What if Trenton wanted to demolish a dilapidated, old factory to make way for a new manufacturing facility that promised to bring hundreds of good paying jobs to the capital city? Would that violate the historic preservation guarantees?”
  • “What if DEP decides not to regulate a contaminant because it falls below the legislatively set threshold for risk or otherwise does not meet statutory or regulatory established criteria for setting a standard?”

“The Legislature and the Executive Branch have done a pretty good job of helping to clean up and restore the Garden State,” Cantor said. “We do not need to turn these critical decisions over to the judicial branch which lacks the knowledge, time, institutional processes, and accountability to address environmental problems.”