Key Contacts
New York Appellate Court Curtails Enforceability of Green Amendment Claims
Over the years, there have been several lawsuits challenging the interpretation and the applicability of New York’s environmental rights amendment to the Bill of Rights of the New York State Constitution, Article 1, §19, known as the “Green Amendment”, which we reported about in the 2024 forecast. Most notably, in July 2024, an appellate court dismissed Green Amendment claims brought by an environmental group in Fresh Air for the Eastside, Inc. v. State of New York, No. 23-00179, 2024 WL 3547674. This is the first Green Amendment case to reach a New York appellate court. In this case, plaintiff claimed that odors and fugitive greenhouse gas emissions from a landfill in upstate New York violates the Green Amendment and that New York State Department of Environmental Conservation (NYSDEC) never conducted an environmental review pursuant to the State Environmental Quality Review Act to address air impacts the community has experienced since 2016. Plaintiff sought closure of the landfill or more enforcement by the NYSDEC. In 2022, the trial court dismissed claims against the landfill operator and New York City as a waste generator but denied the motions to dismiss by the State of New York and NYSDEC and, among other rulings, found that plaintiff had a viable Green Amendment claim. The trial court held that private citizens could bring a Green Amendment case based on the alleged rights violations, which the court could compel New York state to address. Defendants filed an interlocutory appeal.
On appeal, the Appellate Division, Fourth Department dismissed the claims against NYSDEC, holding that enforcement decisions of an administrative agency against a private entity are generally not suitable for judicial review. The appellate court noted that the lawsuit was in fact an Article 78 proceeding seeking mandamus rather than a declaratory judgment action. As to the trial court’s dismissal of the claim against New York City, the appellate court agreed with the trial court that lawful conduct in contracting for waste disposal could not be a violation of the Green Amendment. Finally, the court affirmed that Green Amendment claims cannot be made against private parties, such as the landfill operator, because constitutional rights only regulate government action.
The Fourth Department’s decision appears to curtail the enforceability of the Green Amendment and maintain environmental regulators’ discretion to decide whether to enforce particular regulatory standards. The decision may yet be appealed to New York Court of Appeals.
