Appellate Court Rejects Claims Under New York’s Green Amendment in Landfill Nuisance Case

The Appellate Division Fourth Department has rejected an attack on operations of a landfill based on rights granted by New York’s Green Amendment, holding that the state constitutional amendment does not create rights of action by private parties against private actors. The Court also rejected arguments that the Amendment changed the long-standing rule that mandamus does not lie except for rare exceptions against enforcement agencies which decline to pursue action against alleged violators.

Fresh Air For The Eastside, Inc v. State of New York¹ is the latest salvo in a long-standing dispute between Waste Management of New York, LLC (“WM”) and neighbors of its Hi-Acres Landfill in Perinton, New York. Plaintiffs live within four miles of the landfill and allege harm from odors and fugitive emissions from WM’s operations at the landfill. They also sued the City of New York, a primary customer of the landfill, and the New York State Department of Environmental Conservation (“NYSDEC”) for failing to curb the emissions and odors.

Plaintiffs based their case on environmental rights created by the January 1, 2022, amendment to the State Constitution known as the “Green Amendment” that states that "[e]ach person shall have a right to clean air and water, and a healthful environment" (NY Const, Art I, § 19). In the lower court, WM successfully moved to dismiss by arguing the Green Amendment did not create a right of action against private entities. The City also successfully moved on the ground that the complaint did not state a cause of action against the City because its conduct in sending the waste to the landfill was legal and thus did not violate the Green Amendment. The lower court denied the State’s efforts at dismissal, however, holding that the Amendment created obligations on the state to protect the neighbors.

On appeal, plaintiffs conceded that there was no private right of action created by the Amendment but asserted that the operation of the landfill was so entwined with government action that the private actors could be held liable in the same matter as the State. But the Court wasn’t willing to erase the line between private and state action in this situation. Although it noted that waste disposal was a traditional government activity, and most of the customers of the Landfill were governments, that did not turn the private actor’s behavior into state action. As to the City, the Court agreed that lawful conduct in contracting for disposal could not be a violation of the Green Amendment.

Turning to the State, the Court reversed and dismissed the proceeding. First the Court noted that while styled as a declaratory judgment action, the suit was really an Article 78 seeking mandamus compelling a NYSDEC enforcement action. Here, Plaintiffs faced a heavy task because as the Court noted, administrative enforcement decisions are generally not suitable for judicial review as they involve a “’complicated balancing of a number of factors which are peculiarly within its expertise” of the agency,² and the responsibility for balancing those factors is "'lodged in a network of executive officials, administrative agencies and local legislative bodies,'" and private parties—however well-intentioned—may not "interpose themselves and the courts" between the agencies and the difficult policy determinations they must make regarding whether and when to take regulatory action.”³ The Court held that as the constitutional claim rested on plaintiff’s belief that regulatory violations arising from improper landfill operations were not being prosecuted against WM, that was insufficient to impose mandamus relief "to compel an act in respect to which the [administrative agency] may exercise judgment or discretion."⁴

Hodgson Russ Insights

The Green Amendment was promoted as a path to environmental justice, but its initial appellate judicial appearance was as an attempted weapon in a nuisance dispute. The Court signaled that it did not view the Green Amendment as changing the limited availability of mandamus against an enforcement agency, as urged by plaintiffs and some of the amicus parties. Had the Court acquiesced to this revised mandamus standard, it would have opened the door to litigation compelling often short-staffed enforcement agencies to investigate and prosecute every alleged environmental regulatory violation.  Nor would existing regulations be the limit of potential litigation as advocates could seek court-ordered re-drafting of regulations to suit the ill-defined contours of the Green Amendment. 

If you have any questions about this case, or with the application of New York's Green Amendment or other land use issues, contact Daniel Spitzer (716.848.1420), Charles Malcomb (716.848.1261), Alicia Legland (518.433.2416), or any member of our Land Use and Economic Development team.

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[1] 229 A.D.3d 1217 (4^th Dept. 2024).

[2] Id., quoting Heckler v. Chaney, 470 U.S. 821, 831, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985).

[3] Id., quoting Jones v Beame, 45 NY2d 402, 407 (1978).

[4] Id., quoting Klostermann v Cuomo, 61 NY2d 525, 539 (1984).