Landfill case advances to appellate court, testing Green Amendment

New York’s new environmental rights amendment is being tested in a state appellate court as Monroe County residents argue that a massive landfill violates their right to clean air and a healthful environment. 

A group of residents claimed that possible pollution stemming from the High Acres landfill near the towns of Perinton and Macedon violated the state’s new constitutional right to clean air and water. Their lawsuit against landfill operator Waste Management and the New York state and city governments could further define the limits of the 2021 amendment to the state’s constitution.

The amendment, approved by voters, states, “Each person shall have a right to clean air and water and a healthful environment.” This is one of several cases across the state brought after the amendment was passed.

On Friday, DEC and Waste Management appealed portions of a lower court’s decision – escalating the suit to the state’s appellate court.

In a 2022 Monroe County supreme court decision, Judge John J. Ark upheld some parts of the plaintiff’s case and rejected others. He ruled that New York City, which was included in the lawsuit because they store trash at High Acres, was not at fault under the Green Amendment

Ark also ruled that the complaint against Waste Management be dismissed although in the decision’s text, questions were raised about the company’s future liability for the landfill – leading to the company’s appeal. 

But the state, he ruled, was not above its own constitution. He did not dismiss the complaint against them that they failed to enforce Waste Management’s permit. Amid residents' request that the landfill be closed and its emissions mitigated by the state Department of Environmental Conservation, they also charged that the state didn’t protect New Yorkers from pollution. The state has appealed the decision.

Ark wrote in his decision that it was a worrying sign for the future of the amendment and environmental regulations in the state that New York’s government was fighting back so hard. 

“These lawsuits set forth the apparent failings of the existing regulatory processes and

seek added redress through the Green Amendment,” Ark wrote in the 2022 decision. “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. Indeed, the vigor of the State's opposition to this lawsuit does not bode well for its enforcement of the Green Amendment.”

Waste Management has appealed to ensure any risks to the operation of their landfill are eliminated while Fresh Air for Eastside will eventually push forward with their original wish to have the landfill closed. The case could wind through next summer as the environmental rights amendment’s efficacy is tested in a higher court.

“It's fair to say that there has been a lot of support for the amendment, and there has also been a lot of opposition to the amendment,” said Harris Beach PLLC partner Brian Ginsberg, who is representing Waste Management. “But not all of the discussion has focused on what exactly the amendment does and doesn't do and what exactly is its scope. And this case is important because it will provide a ruling on at least what my client Waste Management believes to be a more limited scope than some commentators and courts have suggested so far.”