Neighbors of High Acres Landfill Renew Odor Complaints in Green Amendment Case, Rebutting DEC and Letitia James

PERINTON, Feb. 23, 2024 — Do courts have authority to rule on whether the state’s failure to abate air pollution around the High Acres Landfill violates the constitutional rights of the facility’s neighbors?

That’s the key question in a lawsuit appeal in Rochester that is shaping up as a crucial test case for New York State’s Green Amendment.

Attorneys for the landfill’s neighbors argued this week that YES, the Green Amendment obligates state courts to act in defense of their clients’ explicit constitutional right to breathe clean air. 

They were answering an appeal filed in December by State Attorney General Letitia James that argues NO: the Green Amendment alone does not empower courts to judge the state’s anti-pollution efforts — at least not without enabling legislation that defines “clean air” and the state’s enforcement duties.

James represents the state Department of Environmental Conservation in the case. She asserts that the Green Amendment, which went into effect Jan. 1, 2022, does not unseat the DEC as the ultimate arbiter of pollution disputes in the state.

But on that point, James and the DEC were on the losing end of a December 2022 ruling in Monroe County Supreme Court. 

“Complying with the Constitution is not optional for a state agency,” Judge John J. Ark wrote in his landmark order that is now being appealed.

The outcome has major policy implications for Gov. Kathy Hochul because the regulatory status quo that James advocates would preserve a reliable outlet for New York City’s garbage. 

“Letitia is letting state government off the hook,” said Ken Camera, a recently retired 12-year veteran of the Geneva City Council.

The state’s three largest municipal waste landfills — Seneca Meadows Inc., High Acres and the Ontario County Landfill — all lie within 30 miles of Geneva in the Finger Lakes region. New York City relies on all three as dump sites for its waste, and all three violate odor regulations. 

The largest, SMI, also falls within a lung cancer cluster, according to the state Department of Health. SMI is now applying to the DEC for a major expansion in a bid to stave off a scheduled 2025 closing date. 

Camera said allowing SMI to close or allowing citizens to use Green Amendment lawsuits to obtain court orders for odor control would undermine the Hochul Administration’s policy of providing convenient waste options for the city.

But if the neighbors of High Acres succeed with their Green Amendment suit, the aggrieved neighbors of the other two giant landfills might follow their example.

At least that would fit the broad conclusion of a legal analysis written last March by Michael B. Gerrard, a Columbia law professor, and Edward McTiernan, a partner at the law firm Arnold and Porter and a former DEC general counsel. 

Gerrard and McTiernan said that if Judge Ark’s views prevail over those of AG James in state jurisprudence, Green Amendment claims are apt to proliferate. And if Ark’s six-year statute of limitation for constitutional claims sticks, that would provide “great opportunities for environmental plaintiffs and great uncertainties for the regulated communities.”

Ark, who retired three weeks after issuing his blockbuster ruling, understood that his opinion serves only as the first step in the courts’ evolving process of interpreting the Green Amendment. The High Acres appeal is the next step. Other cases will follow.

In a brief filed Tuesday, attorneys for the group Fresh Air for the Eastside Inc. (FAFE) argued that DEC has violated their clients’ rights by action and inaction in regulating High Acres. 

“DEC affirmatively approved the (permit for the) landfill, which now operates and violates plaintiff’s members’ constitutional rights with the full imprimatur of the state,” they wrote. “The failure to abate the violation is not insulated from judicial review. The state lacks discretion to violate the Constitution, but still issued the permits.”

FAFE filed its suit in late January 2022, four weeks after the Green Amendment went into effect. 

New York is only the third state (after Pennsylvania and Montana) that has enshrined environmental rights in its state Constitution. The so-called Green Amendment was approved in consecutive sessions of the state Legislature, and voters approved it by a 2-1 margin in a 2021 statewide referendum. 

Article 1, Section 19 of the state Constitution now reads: “Environmental Rights. Each person shall have a right to clean air and water, and a healthful environment.”

That’s too vague to be enforceable, James argued in her Dec. 22, 2023 appeal brief. The Legislature needs to define terms and duties, she said.

“The establishment of a constitutional right … does not impose a concomitant duty on the state to take action against third parties to enforce that right in the absence of language imposing that duty,” she argued.

But in their response this week, FAFE attorneys Alan Knauf and Linda Shaw shot back: 

“The lack of precise constitutional or statutory definitions has never been a bar, based on vagueness, to enforcing other rights in the Bill of Rights like freedom of speech, religion or the press, or guarantees of due process, equal protection or just compensation, which have instead been interpreted through caselaw.”

Furthermore, they asserted that the Legislature intended for the courts, not the Legislature itself, to interpret the scope of constitutional environmental rights. They quoted a co-sponsor of the Green Amendment bill, former Assembly Member Richard N. Gottfried:

“Our rights in America should not be seen as something that is graciously enforced on our behalf by the Legislature.” 

The High Acres lawsuit appeal is being heard by the New York State Supreme Court’s Appellate Division, Fourth Department in Rochester. Its decision is likely to be appealed by whichever side loses to the state’s highest court, the Court of Appeals.

High Acres is owned and operated by Waste Management of New York LLC, a division of Texas-based Waste Management Inc., the nation’s largest waste company. Opened in 1972, the landfill expanded dramatically in 2015 after it began taking waste by rail from New York City. High Acres, now the state’s second largest landfill, gets about 90 percent of its waste by train from the city.

FAFE said odors from the landfill increased as shipments from NYC began to soar, and it has documented tens of thousands of odor complaints.

High Acres now operates under a DEC air permit has been administratively renewed since it expired in December 2021. Under state law, environmental permits may be extended indefinitely if a proper application for renewal has been filed.

The FAFE lawsuit names as defendants the DEC, the state of New York, WMNY and the City of New York.

Ark dismissed the cases against WMNY and the city, but not against the DEC and the state.

Although WMNY was released as a defendant in the case, it filed an appeal that roughly tracked with James’ argument that the Green Amendment may not be enforced by the courts without enabling legislation.

“Determining objectively whether air is ‘clean’ and the environment is ‘healthful’ is no more manageable by the judiciary that determining whether a person is ‘safe’ or ‘happy,’” WMNY argued. “Absent legislative guidance, those inquiries devolve into political policymaking.”

But FAFE now argues that the appeals court should reject the WMNY filing on the grounds that it has already been dropped as a defendant.

The Green Amendment movement has been promoted nationally by Maya van Rossum, an attorney in Philadelphia who has won cases under Pennsylvania’s Green Amendment.

Nine states have proposed legislation this year, and van Rossum recently told Bloomberg Law that she expects three to five new states to adopt green amendments over the next several years.

She told WaterFront last month that she considered it crucially important that green amendments not be dependent on enabling legislation. Rather, they should be “self-executing,” van Rossum added. The appeal AG James filed in the High Acres case drew her condemnation.

“The Attorney General has neither the right not the authority to pick and choose which constitutional obligations and rights she will comply with,” van Rossum said.