New York Lower Courts Give Green Light to Green Amendment Lawsuits, for Now
As reported in last year’s forecast, as of January 1, 2022, New York became one of the few states to have incorporated an environmental rights amendment into its Bill of Rights. The New York Amendment, proverbially known as the “Green Amendment,” provides that, “Each person shall have a right to clean air and water, and a healthful environment.”
Judicial decisions interpreting the new Amendment have now started trickling in, offering a glimpse into how the rights protected by the Amendment might be enforced. In Fresh Air for the Eastside, Inc. v. State of New York, Index No. E2022000699 (Monroe Cnty. Dec. 7, 2022), a Monroe County Supreme Court held that the Amendment affords a cause of action by a private party against the government for violations of the Amendment, but not against another private party. The lawsuit concerned a landfill located outside of Rochester, New York. The plaintiffs, a group of neighboring residents, sued the landfill’s operator, a private entity, along with the State of New York and other government entities, seeking declaratory and injunctive relief on the basis that the operation of the landfill violated the plaintiffs’ constitutional rights to a healthful environment.
In a ruling on motions to dismiss, the court dismissed the claim against the landfill operator but allowed the claim against the State to proceed. The court held that the Amendment “makes no reference to private entities” and therefore imposes a restriction only on the government. As for the State, the court rejected the argument that the plaintiffs’ claims had to be pursued as an administrative challenge to final agency action under CPLR Article 78. The court held that it was well within its authority “to compel the State to comply with the Constitution” in a declaratory judgment action, seeking injunctive relief, when the harm from the landfill was allegedly ongoing and unabated. The court also rejected the State’s argument that the lawsuit called into question the Department of Environmental Conservation’s enforcement discretion, which is not typically subject to judicial review. While the State may exercise its discretion under various environmental statutes as to when and how it implements its enforcement authority, the court reasoned, “the State lacks the discretion to violate the Constitution.” Thus, assuming the allegations in the complaint were true, the court held that it was apparent that “more needs to be done to protect [plaintiffs’] constitutional rights to clean air and a healthful environment.” The court therefore denied the State’s motion to dismiss.
A related lawsuit involving many of the same parties, Fresh Air for the Eastside, Inc. v. Town of Perinton, Index No. E2021008617, was an Article 78 proceeding challenging various local approvals issued the landfill. The court denied the defendants’ motions to dismiss the plaintiffs’ constitutional challenge based on the Amendment, allowing the claim to move forward. There, the court noted that “constitutional inquiries of government action are more rigorous” than the usual “arbitrary and capricious” standard and suggested that it was improper for the court to afford the same deference to the agency as was usually afforded in Article 78 proceedings. The court ultimately denied the motions to dismiss the constitutional claim based on the Amendment, allowing it to proceed as a basis for overturning the Town’s and the Zoning Board of Appeals’ decisions.
If the first judicial decisions are any indication, both private and public parties will want to closely track developments concerning the Amendment in these and similar cases. While private parties like the landfill operator may not be subject to direct lawsuits for violations of the law, they will undoubtedly feel the force of the Amendment if the government is obligated to do “more” – possibly above and beyond their statutory prerogatives – to ensure New Yorkers’ rights to a healthful environment are not infringed, as the Monroe County Supreme Court’s decisions suggest. Suffice it to say that these decisions are just the opening salvo in this developing area of the law.