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Home » Monroe County » NY’s Green Amendment is a useless tool for enforcing odor rules at High Acres Landfill, AG James argues

NY’s Green Amendment is a useless tool for enforcing odor rules at High Acres Landfill, AG James argues

  • / Updated:
  • Peter Mantius 

People who live near a giant waste dump that stinks can’t rely on New York State’s Green Amendment to force state agencies to take action against landfills that pollute, state Attorney General Letitia James argues in a recent court filing.

The AG is asking an appellate court to reverse an existing lower court order that says just the opposite.

The looming legal battle, which will help establish the reach of the Green Amendment in New York, arises from a lawsuit brought by neighbors of the High Acres Landfill that straddles Monroe and Wayne counties. 

Finger Lakes Partners (Billboard)

The outcome has huge implications for all those Finger Lakes residents who have to put up with the stench of imported garbage — and the risk that it harms their health.

The state’s three largest municipal waste landfills are located within 30 miles of Geneva. The largest, Seneca Meadows, and third largest, Ontario County Landfill, sit within 10 miles of Seneca Lake. Seneca Meadows lies within a lung cancer cluster.

High Acres, the state’s second largest, imports roughly 90% of its waste from New York City. All three towering dumps accept more waste from the Big Apple than from their own counties. 

And while they all hold state waste permits, they all persistently fail to comply with state and local odor regulations.

The Green Amendment appears to many as a lifeline for those plagued by the foul odors. In November 2021, the state’s voters by margin of more than 2-1 approved an amendment to the state Constitution that states: “Each person shall have the right to clean air and water, and a healthful environment.”

While “clean air” is now a constitutional right, the term is not defined. State courts are just beginning to wrestle with what it means and how it will be enforced. 

For AG James, the vagueness of the language makes the amendment — standing alone — a useless tool for enforcing compliance. It needs to be activated by enabling legislation that defines terms and duties, she claims.

“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,” James wrote in her Dec. 22, 2023 brief.

As James sees it, state environmental law remains the province of the Department of Environmental Conservation — not the courts.

“Courts ‘must be careful to avoid’ granting relief that goes ‘beyond any mandatory directives of existing statutes and regulations and intrude[s] upon the policy-making and discretionary decisions that are reserved to the legislative and executive branches,’” James wrote, quoting from previous decisions.

But in the ruling that the AG challenges, Supreme Court Judge John J. Ark of Monroe County held that the DEC has no special shield from Green Amendment claims. “Complying with the Constitution is not optional for a state agency,” he wrote.

Acknowledging that his ruling is a long way from settled law, Ark wrote: “In adjudicating and applying the Green Amendment, it may be necessary to have a two-prong test: First, did the government action comply with the applicable statue? Second, did the government action violate a person’s constitutional ‘right to clean air, water and a healthful environment’?”

Ark retired from the bench three weeks after issuing his landmark ruling.

Linda Shaw, lead attorney for the High Acres plaintiffs, said her case is an ideal first test for the Green Amendment because “we have 29,000-plus documented odor complaints and data proof that the landfill is causing unclean air … Clean air is not air filled with landfill gas.

“We do not need the legislature to make that clear. The judiciary can reach that conclusion.”

The plaintiffs’ brief in response to AG James is due Feb. 20. Oral arguments will follow before the Fourth Department of the state Supreme Court in Rochester, an intermediate appellate court. Whatever it decides will almost certainly be appealed to the state’s highest court, the state Court of Appeals.

Three states — New York, Pennsylvania and Montana — have added environmental rights to their state constitutions, and at least nine other states were considering doing so last year.

The national Green Amendment movement has been spearheaded by Maya van Rossum, an attorney from Philadelphia and leader of the Delaware Riverkeeper. 

She called James’ appeals brief “a shocking display” from the state’s top law enforcement officer. 

“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.

High Acres is owned and operated by Waste Management of New York, a unit of Texas-based Waste Management Inc. (NYSE: ticker symbol WM), the nation’s largest waste company. It employs 49,500 and reported 2022 revenue of  $19.7 billion.

High Acres’ imports of NYC waste began to soar in 2015 after it started taking garbage shipments by rail.

In 2017, a group of citizens formed Fresh Air for the Eastside (FAFE) to protest what they considered sharply worsening air pollution. A few weeks after the Green Amendment went into effect on Jan. 1, 2022, FAFE filed suit against WMNY, the City of New York and the DEC, citing acts and omissions by the agency.

WMNY announced odor mitigation efforts in 2018, but reports of powerful landfill odors have continued unabated, according to FAFE.

In a related case, FAFE is also suing the Town of Perinton, its Zoning Board of Appeals and WMNY.

All the defendants in both cases sought dismissals.

Judge Ark ruled that the Green Amendment is not directly enforceable against private companies — only against the state. So he agreed to dismiss as plaintiffs WMNY and the City of New York, but not the DEC. 

The city was not liable, he said, because it was merely a customer of High Acres with no duty to oversee WMNY’s compliance with its state permits.

In fact, WMNY operates High Acres under expired permits that have been administratively extended. The term of its solid waste management permit ran out in July, while its Title V air emissions permit expired more than three years ago (December 2021). Because the company has filed applications to renew the permits, the state allows DEC to extend them indefinitely — a practice critics refer to as “zombie permitting.”

Even though Ark dismissed WMNY as a plaintiff, the company filed its own appeals brief that said his order was “wrong across the board.”

WMNY objected to the judge’s decision not to dismiss FAFE’s claim entirely, as the company sought, but instead “allowed claims impacting the landfill to survive.”

And while Ark held that the Green Amendment is “self-executing” (having no need for enabling legislation), WMNY argued that it is not because it is “too vague and open-ended for courts to construe in a principled fashion.”

Judges are no more able to determine objectively whether air is “clean” and the environment is “healthy” than they are to say a person is “safe” or “happy,” WMNY argued. “…Absent legislative guidance, those inquiries devolve into political policymaking.” 

Ark ruled that it would be appropriate for a court, acting in response to violations of the Green Amendment, to issue a mandamus order that compels a state agency to shut down the landfill or take other steps to reduce odors. But his order didn’t go that far.

Plaintiffs sought the immediate closure of High Acres, or the installation of a permanent cover on portions of the landfill not in active use. Ark declined to grant the plaintiffs either remedy. 

Instead he placed the burden of solving the odor problem on the Town of Perinton, saying it could simply deny WMNY its local permit. “No permit, then no landfill, then no pollution, then no more violations of the Green Amendment,” he wrote.

High Acres Landfill is operated by Waste Management of New York, a unit of the nation’s largest waste company.

In concluding his order, Ark wrote that it was uncertain that the judiciary would in the end allow the Green Amendment to be used as a tool to address alleged regulatory failures.

“Indeed the vigor of the state’s opposition to this lawsuit does not bode well for its enforcement of the Green Amendment,” he said.

Pace University School of Law has tracked Green Amendment claims that have sprung up in several other cases around the state, including the People of the State of New York v. Norlite.

After AG James sued Norlite, a hazardous waste incineration facility in Cohoes, on behalf of the DEC, the citizens group Lights Out Norlite jumped in with a Green Amendment claim seeking to shut down the facility. James has since urged the court to dismiss the Lights Out Norlite claim as an overreach of the amendment’s scope.

But if Judge Ark’s views eventually prevail over those of AG James in state jurisprudence, such Green Amendment claims are apt to proliferate, according to an analysis last March by Michael B. Gerrard, a Columbia law professor, and Edward McTiernan, a partner at Arnold and Porter and former general counsel of the DEC.

And if Ark’s opinion that Green Amendment suits may be filed within a six-year time window gains traction, Gerrard and McTiernan predicted “great uncertainties for the regulated communities.”

In the High Acres case, James filed her appeal brief on behalf of the DEC and the administration of Gov. Kathy Hochul. As a political matter, the governor must weigh potential environmental harm to residents of the Finger Lakes against the waste disposal needs of New York City.

Ken Camera, who recently finished a 12-year tenure on Geneva’s City Council, said blatant violations of the Green Amendment’s clean air mandate should be sufficient to derail Seneca Meadows’ pending application for a DEC permit to continue operating through 2040. 

But shutting down Seneca Meadows would upend the current Hochul Administration waste regime, which provides convenient waste options for the city at the relatively minor political expense of blanketing part of the Finger Lakes with noxious odors, Camera said.

“Letitia is letting state government off the hook,” he added. “It does make us a sacrifice zone.”

Yvonne Taylor, co-founder of the non-profit group Seneca Lake Guardian, called James’ appellate brief “a slap in the face to the almost 70% of the New York State electorate that voted for the Green Amendment.”

Taylor said the Hochul Administration has downplayed evidence that landfill odors are not only a nuisance, but also potentially harmful, or even deadly. She noted that the state Department of Health had determined that Seneca Meadows fell within a “lung cancer cluster” for the years 2011-2015.

Following a report in WaterFront about elevated lung cancer rates around Seneca Meadows, the DOH has refused requests to provide lung cancer rate data by census tract for any year after 2017.