New York’s “Green Amendment” Being Put to the Test

On November 2, 2021, New York voters overwhelmingly approved the “Green Amendment” to the New York State Constitution. The Amendment secures each person’s “right to clean air and water, and a healthful environment.” N.Y. Const., Art. 1, Sec. 19. New York is the third state, after Montana and Pennsylvania, to enshrine environmental rights in its bill of rights. Other states, including Hawaii, Illinois, Massachusetts, and Rhode Island, have provisions in their respective constitutions that protect the environment.

While the Green Amendment’s passage was celebrated by practitioners and advocates across the state and nation, much remains uncertain and open to interpretation regarding the Amendment’s applicability. The Amendment created new avenues for environmental litigation, but it is unclear whether the Amendment’s vague language provides a private cause of action. By its plain language, the Amendment gives every New Yorker the right to sue any individual or entity that does not comply with state environmental standards. However, several members of the New York State legislature, during floor debates, indicated that the Amendment does not provide citizens the right to sue private individuals or entities. It is also unclear whether compliance with New York environmental laws and regulations will protect potential defendants from litigation brought under this Amendment.

These uncertainties will soon be put to the test, as the first two lawsuits claiming violations of the Amendment have been filed in Monroe County Supreme Court. The first lawsuit alleges that a municipality and a privately owned landfill violated the right to clean air and a healthful environment by allowing the continuous emission of noxious gases and odors from the landfill. The second lawsuit, brought against the New York Department of Environmental Conservation (the “DEC”), alleges that the DEC failed to enforce applicable laws, regulations, and permits against the same landfill. On February 22, 2022, respondents in the first lawsuit filed motions to dismiss the complaint. As of the publishing date of this LEGALcurrents, no response has been filed with respect to the second complaint against the DEC.

If you have any questions regarding this LEGALcurrents, please do not hesitate to contact any member of the firm’s Environmental, Land Use and Zoning practice group at 585.232.6500 or 716.853.1616.

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