I think it's very much an open question. It's my view and our organization's view that the constitutional authority in CEPA is sound. That said, I certainly don't feel comfortable carrying forward a definitive opinion on whether, if you watered down the term “toxic” in CEPA, it would render the legislation unconstitutional. I don't think that's the case.
Particularly given the jurisprudence, it would create enough of an opening for further litigation. Given the history of this and other statutes on environmental law in this country and elsewhere, we can bet quite safely that there will be litigation if we create those kinds of openings.
Just to give you some of the reasons why I think it creates that opening, Hydro-Quebec was a split judgment--a five-to-four judgment. The lower courts went the other way. Considerable weight throughout both the dissent and the majority judgment was accorded to the term “toxic”. They said at various points during the case, “This is about substances that are toxic.” They didn't dwell on what they would be deciding if there were some other term, but you certainly got a very strong sense from both judgments that the justices accorded significant weight to determine that was part of their reasoning.
Maybe you'd keep four of those judges on side, but maybe you'd lose one. It's very difficult to know what motivated each of those judges in their judgment. So I certainly wouldn't offer a definitive opinion on it. I'd be very skeptical of anyone else offering that kind of opinion on such a tight judgment.