ROCHESTER, Jan. 30, 2023 — How will the Hochul Administration respond to a sweeping state court ruling that citizens have a right to sue the state Department of Environmental Conservation to preserve their newly granted constitutional rights to “clean air, water and a healthful environment?”
Gov. Kathy Hochul and the DEC have decided to appeal the decision, but they’re not talking about it.
They can accept the court’s potentially landmark finding that the 2022 Green Amendment has broad scope, or they can push back with in hopes of winning a narrower interpretation that assigns the amendment a status that is more symbolic than practical — preserving the status quo.
So far they have only filed a brief notice of appeal, which does not spell out their arguments. They have six months to ‘perfect’ their appeal — to finally state where they stand on the Green Amendment.
Hochul’s office did not acknowledge two email requests for comment, while the DEC, after hours of delay, referred emailed questions to the state Attorney General’s office.
The administration’s stance has major implications for the Finger Lakes.
New York’s three largest municipal waste landfills sit within 30 miles of Geneva, and each one persistently emits foul odors and potentially dangerous air emissions.
Currently, the DEC’s permitting decisions reign supreme legally, regardless of whether they actually protect the environment.
Citizens subjected to landfill odors or other uncontrolled environmental harms may challenge a violator’s state permit in court. But they face long odds with a difficult burden of proof. Courts rarely overturn state permits unless they are deemed arbitrary and capricious.
So landfills with valid permits need not actually prevent dangerous odors. They can simply violate the conditions of their permits and pay fines (or not) without worry the DEC will order them to shut down. That’s the current state of affairs at the three giant landfills.
— Seneca Meadows Inc., the state’s largest, is 8 miles east of Geneva. Toxic hydrogen sulfide gas emissions that engulfed several local businesses last May were caused by SMI leachate in the local sewer system. Months earlier, odor from SMI was a top issue in a local political campaign.
— High Acres, the second largest, is 30 miles northwest of Geneva. More than 200 residents in the Perinton-Macedon area sued the landfill’s owner in federal court in 2018 over landfill odors. Despite the owner’s mitigation efforts since then, odor reports have reportedly spiked.
— Ontario County Landfill, the third largest, is 5 miles west of Geneva. In November, the county and the landfill operator agreed to pay a $500,000 fine for odors that violated the landfill’s state permit between 2015 an 2022.
Enter New York’s Green Amendment, as interpreted by Justice John Ark of the Supreme Court of Monroe County. His Dec. 8 order is the first in the state to lay out the legal scope of the broadly defined environmental rights added to the state constitution (Article 1, Section 19) on Jan. 1, 2022.
The order addresses a case filed in state court in 2022 by the non-profit environmental group Fresh Air for the Eastside Inc. (FAFE). It alleges that High Acres continues to emit “persistent, noxious, and offensive odors of garbage” as well as landfill gasses “laced with hazardous substances.”
FAFE named three defendants: the DEC; Waste Management of New York LLC, which owns and operates the landfill; and New York City, which produces 90 percent of the landfill’s municipal waste, most of it delivered by train. The suit alleges violations of its members’ constitutional rights as spelled out in the Green Amendment.
Judge Ark dismissed actions against WMNY and New York City, but allowed the claim against the DEC.
After weighing arguments from all parties, Ark wrote: “Despite the state’s efforts, the landfill is still causing odors and fugitive emissions which plague the community … the situation at the landfill has risen to the level which violates FAFE’s constitutional rights of clean air and a healthful environment.”
He ruled that the Green Amendment is enforceable against all levels of state and local government, but not against private parties like WMNY. He dismissed the case against the city because it has no duty to police the landfill operator’s compliance with its state permit.
Dropping claims against WMNY and the city and leaving the DEC as the sole defendant was “appropriate and not a surprise,” said Maya Van Rossum, a Pennsylvania attorney who founded a nationwide campaign to convince states to add so-called “Green Amendment” rights to their constitutions. “The (New York) amendment is about holding government officials responsible, not private companies.”
Van Rossum said in a recent interview she was pleased with the outcome of New York’s first Green Amendment test case. But she noted that’s it’s still early in the game of establishing how the rights amendment may be applied. Potential appellate rulings and future cases may refine, substantially rework or even overturn Ark’s sweeping interpretation.
Judge Ark held that courts can compel compliance when a violation of the amendment is found. He said the amendment is “self-executing” and does not require additional legislation to be enforceable.
But he acknowledged that his order is unlikely to be the final word on how the Green Amendment will be applied.
“Whether the Green Amendment will be an important tool to allow communities to safeguard their environment and compel state and local governments to act to prevent environmental harms is uncertain,” Ark wrote. “Indeed, the vigor of the state’s opposition to this lawsuit does not bode well for its enforcement of the Green Amendment.”
That doesn’t necessarily mean Ark expects to be overturned on appeal, Van Rossum said.
“My preferred reading is not that the higher courts are going to allow themselves to be manipulated by what state actors want to see happen, but that instead the Supreme Court is anticipating … future cases,” she said.
In fact, Pennsylvania’s passage of constitutional rights to a healthy environment in 1971 launched that state on a five-decade legal odyssey to define how those rights would be interpreted and enforced.
For 42 years the Pennsylvania constitutional rights lay dormant and unexercised until a December 2013 ruling in a fracking case “breathed new life into them,” Mark Freed, a Philadelphia attorney, said during a recent Zoom call.
That landmark ruling has been the basis for many subsequent judicial decisions that have continued to refine and expand the scope of Pennsylvania’s environmental rights.
Government officials in Pennsylvania, including leaders in the Department of Environmental Protection, long resisted that evolution before recently embracing the rights as the new legal reality, Van Rossum said.
She said a similar pattern is apt to unfold in New York, perhaps on a shorter timeline thanks to Pennsylvania’s example.
In New York, several other cases may signal the beginning of that evolutionary process:
— In a companion case to Ark’s major ruling regarding on FAFE’s Green Amendment claim, the judge ruled that the Town of Perinton and other municipalities — like the DEC — lack discretion to violate environmental rights in the state Constitution. Linda Radko Shaw represented FAFE in both Monroe County cases before Judge Ark.
— In a lawsuit the DEC filed in October against Norlite LLC that alleges illegal dust emissions from its plant in Cohoes, several groups have filed a motion to intervene, citing Green Amendment rights. The DEC complaint is based on alleged permit violations rather than violations of constitutional rights. Pointing to the same harms the DEC alleges, the group Lights Out Norlite (LON) claims the DEC has failed to protect its members’ Green Amendment rights, and the plant must be ordered to shut down. “If DEC’s efforts in this matter serve to shut the facility down, our claim against the DEC will be moot and we will withdraw it,” LON said in its motion signed by Todd D. Ommen of Pace Environmental Litigation Clinic Inc.
— Opponents of a June 2022 plan reroute Interstate 81 through Syracuse have alleged in a lawsuit that the rerouting would violate their environmental rights under the Green Amendment. The plaintiffs, led by the group Renew 81 for All, are represented by Alan Knauf, law partner of Linda Shaw. In a recent Op-Ed column, state Sen. Rachel May labeled the suit “frivolous,” saying it was a cynical use of Green Amendment rights to advance an illegitimate “not in my backyard” case. Several years ago, Knauf represented a developer’s unsuccessful bid to win permits for a proposed waste incinerator between Seneca and Cayuga lakes.
New York’s Green Amendment was approved by the state Legislature in two consecutive sessions. In a statewide referendum in November 2021, ‘yes’ votes outnumber ‘no’ votes by a 70-30 margin.
The Business Council of New York had lobbied against the Green Amendment, arguing: “This proposed constitutional amendment would be applied as a blunt instrument, with the potential to stop activities with any level of environmental impact regardless of their broader public benefits.”
Among state legislators who represent the Finger Lakes, votes on the measure split along party lines, with all three Democrats voting ‘yes’ and all eight Republicans voting ‘no.’