On December 7, 2022, the Honorable Judge John J. Ark J.S.C. denied the State of New York and the New York State Department of Environmental Conservation (the “State”) motions to dismiss the lawsuit, Fresh Air for the Eastside v. The State of New York, et al., E20220006999, holding that FAFE had in fact asserted a claim under the newly enacted Article I § 19 of the New York State Constitution (the “Green Amendment”). The action involves the High Acres Landfill located in the Towns of Perinton and Macedon, which causes sickening, putrid, and nauseating odors and gases, and that have been the source of over 26,000 complaints from the community since 2017.

The decision comes after extensive briefs on novel legal issues were submitted, and is believed to be the first ruling recognizing a cause of action under the Green Amendment. While the court granted motions to dismiss from both Waste Management of New York, L.L.C. (“WMNY”) and the City of New York, it found that the State has “not properly remedied the on-going problem” at the Landfill.

The court found that the State’s decision whether to comply with the Constitution and Green Amendment is non-discretionary, and that the Green Amendment was clear, with “no ambiguity in the plain language.” The court also held that the Green Amendment conveys FAFE the right to protect its members’ clean air and healthful environment, but found that “the vigor of the State’s opposition to this lawsuit does not bode well for its enforcement of the Green Amendment.”

Another case regarding the High Acres Landfill and asserting a claim for violation of the Green Amendment is FAFE v. Perinton, E20210086617.  There, FAFE asserts, inter alia, that the Town violated the State Environmental Quality Review Act (SEQRA), the Open Meetings Law, General Municipal Law (GML), various Town of Perinton code provisions and the Green Amendment by approving WMNY’s application for a Town of Perinton Solid Waste Facility Permit. Both the Town and WMNY’s motions to dismiss FAFE’s SEQRA, GML, and Green Amendment claims were denied and the litigation moves forward.

A copy of the Decision and Order from FAFE v. State, No. E2022000699 can be accessed here: https://www.dropbox.com/s/13i0tr8s8v91tfv/FAFE%20v.%20NY-%20Decision%20Order_12.7.22.pdf?dl=0

A copy of the Decision and Order from FAFE v. Perinton, E20210086617 can be accessed here: https://www.dropbox.com/s/vdbfhih4vqolbwd/FAFE%20v.%20Town-%20Decision%20and%20Order%2012.8.22.pdf?dl=0