On November 2, 2021, New York State voters passed a ballot measure enshrining in the New York State Constitution the right to a “healthful environment.” The new “Green Amendment,” or Environmental Rights Amendment (ERA), provides that “each person shall have a right to clean air and water, and a healthful environment.”i With the adoption of this amendment, New York became the third state in the nation to include environmental rights in its bill of rights along with Pennsylvania and Montana. Four other states (Hawaii, Illinois, Massachusetts, and Rhode Island) have constitutional provisions regarding environmental protections, although not in their bills of rights.
The impact of New York State’s Green Amendment has been unclear since its passage. At the outset, the amendment is comprised of just 15 words and lacks any specificity as to what the right actually means in practice. The sponsor’s memo provides little by way of interpretation, merely noting that the Green Amendment was spurred by “[r]ecent water contamination and ongoing concerns about air quality,” which, it says, “have highlighted the importance of clean drinking water and air as well as the need for additional protections.” These additional protections are noticeably absent from the text of the amendment and the sponsor’s memo. Further, during the floor debate on the amendment, certain members of the legislature assured their colleagues that the amendment would not provide a private right of action. This is despite the language in the amendment itself that the right to clean air and water and a healthful environmental is vested in “each person.” Also uncertain is whether compliance with existing environmental laws and regulations would shield an individual or entity and be a “safe harbor” in litigation as well as what the potential penalties might be. As a result, the general consensus was that the courts would ultimately decide the significance of the Green Amendment.
That time has come. The first case to bring claims solely under the Green Amendment has been filed in the New York State Supreme Court in Monroe County against the State of New York, the New York State Department of Environmental Conservation, New York City, and the owner-operator of the High Acres Landfill in Wayne County, New York.ii The action alleges that the improper operation of the landfill, where municipal solid waste from New York City is taken, is violating the constitutional right to clean air and a healthy environment of the petitioner’s members that own property or reside near the landfill or both. The petitioner seeks a declaration that its members’ rights under the Green Amendment have been violated, the immediate closure of the landfill, and other relief (e.g., costs and attorneys’ fees) as the court deems appropriate. The respondents have yet to respond to the complaint.
Barclay Damon’s Environmental Practice Area will continue to monitor this lawsuit and will continue to distribute timely legal alerts. We expect more lawsuits to follow as the courts grapple with the full significance of the Green Amendment.
If you have any questions regarding the content of this alert, please contact Yvonne Hennessey, Environmental Practice Area chair, at yhennessey@barclaydamon.com, or another member of the firm’s Environmental Practice Area.
iSee N.Y. Const., Art. 1, Sec. 19.
iiSee Fresh Air for the Eastside, Inc. v. The State of New York et al, Index No. E2022000699 (Monroe Co.).