A New York intermediate appellate court has dismissed claims brought by a nonprofit for alleged violations of New York’s Environmental Rights Amendment, also called the Green Amendment. Fresh Air for the Eastside, Inc. v. State of N.Y., No. 23-00179, 2024 WL 3547674 (4th Dep’t July 26, 2024).

The Green Amendment, which took effect in 2022, guarantees New Yorkers a “right to clean air and water, and a healthful environment.” N.Y. Const., Art. 1, Sec. 19. Environmental and community groups have brought numerous claims under the Green Amendment, challenging projects and permits they oppose and seeking an expansive reading of the constitutional provision. This decision by the Appellate Division’s Fourth Department, which covers much of central and western New York, throws cold water on those lawsuits.

Contending that odors and greenhouse gas emissions from a landfill in upstate New York violated the Green Amendment and other laws, community organization Fresh Air for the Eastside (Fresh Air) commenced this lawsuit in 2022 in Monroe County Supreme Court against the State of New York, regulator New York State Department of Environmental Conservation (NYSDEC), waste generator New York City, and the landfill operator. The trial court dismissed claims against the landfill operator and New York City, holding in part that Green Amendment claims could not be asserted against a private party. The trial court, however, denied the motion to dismiss claims against the State or NYSDEC.

On July 26, 2024, the Fourth Department dismissed the claims against the defendants in their entirety. Seeking to circumvent the limitation on Green Amendment claims against private parties, Fresh Air argued that the operation of a landfill constitutes “State action.” The appellate court rejected this argument, explaining that a landfill’s status as a regulated industry was insufficient to impute State action to a private entity. The Fourth Department also affirmed the dismissal of the claims against New York City, as the complaint did not allege improper activities by the City in generating waste.

The appellate court held that Fresh Air could not bring a Green Amendment claim against the State or NYSDEC for failing to take enforcement action for the allegedly inadequate operation of the landfill. The court concluded that the plaintiff was essentially seeking mandamus relief, as it was trying to compel the State to take enforcement action against a private entity. Because enforcement decisions are typically unsuitable for judicial review and courts cannot compel action where the agency may exercise judgment or discretion, the Green Amendment claim was not viable.

While the trial court held that the Green Amendment was self-executing—meaning parties can challenge an action without any additional grant of authority from a legislature or regulatory entity—the Fourth Department did not reach this issue, leaving it unsettled.

The Fourth Department’s Fresh Air decision will be an important tool for limiting Green Amendment claims brought by private groups against permitted facilities. Regulated entities in New York should carefully monitor new litigation surrounding the Green Amendment and other appellate decisions interpreting the reach of this constitutional provision. 

Beveridge & Diamond, including the lawyers in our New York office, assists clients with strategic regulatory compliance and risk assessment, enforcement and investigations, and litigation matters related to states’ environmental regulatory regimes across the country. Our multidisciplinary team combines substantive expertise with air, climate change, and water regulatory programs, environmental justice, and a deep bench of trial-tested litigators to help our clients across industries succeed.