Often motivated by the lack of federal engagement on environmental issues, various states have evaluated adding “Green Amendments” to their state constitutions. The practical impact of these amendments will be born out as they are used and challenged in state courts.

We’ve written repeatedly about state constitution “Green Amendments,” including earlier this year here. In New York, voters added a Green Amendment to the state constitution in 2021, tersely guaranteeing “each person” a “right to clean air and water, and a healthful environment.”

That short novel and perhaps vague Green Amendment has already spawned litigation. The first case to reach New York’s intermediate appellate courts, Fresh Air for the Eastside, Inc. v. State of New York, alleged that odors and emissions released from a landfill violated nearby residents’ Green Amendment protected-rights to a clean environment.

On appeal, the court held that the Green Amendment itself generated no private right of action to compel other private parties to abate environmental conditions, and the fact that landfill operations were regulated by the state was not enough to make them state activity. Further, the court held that the Green Amendment provided no new lever for private entities to compel the New York State Department of Environmental Conservation (NYSDEC) to take regulatory action against the landfill. Accordingly, the court ordered claims against NYSDEC, which had been permitted to proceed by a lower court, to be dismissed.

What’s next? The case is certain to be appealed and, given that new constitutional rights are involved, it is reasonable to expect the state’s highest court, the New York Court of Appeals, to weigh in. Stay tuned for further updates.