Recent court decisions suggest that the 2019 Climate Leadership and Community Protection Act (CLCPA) and 2021 Environmental Rights Amendment (amendment) are going to have very significant impacts on environmental regulation and litigation in New York state. Through CLCPA, the state legislature mandated the near total elimination of greenhouse gas emissions from New York's economy by 2050. Buried in the law is Section 7(2), which requires all New York state agencies to consider consistency with CLCPA's greenhouse gas mandates when issuing discretionary approvals. Read broadly, state agencies cannot issue permits, licenses, funding awards or other approvals without a finding that either the activity will not interfere with achieving CLCPA's emissions limits or that any interference is justified, and mitigated as much as possible. As the New York State Department of Environmental Conservation (DEC) and other agencies wield this new authority, the resulting agency decisions are likely to elicit much litigation.

The amendment is even broader. It adds to Article I of the New York Constitution a right to a clean environment for citizens, enforceable against all levels of state and local government. DEC has, at least in defending against one lawsuit, resisted a broad interpretation of the amendment. While the full implications of CLCPA and the amendment will not be known for years, recent litigation and agency decision-making shed light on how they have already reshaped New York's legal landscape. And both laws are clearly headed to the court of appeals for interpretation.

According to at least one Supreme Court judge, the Environmental Rights Amendment provides a private right of action and substantially expands the duties of state and local government to consider environmental harms.