Based on recent decisions, judicial interpretation of New York’s Environmental Rights Amendment (also called the Green Amendment) continues to evolve. The Green Amendment guarantees New Yorkers a “right to clean air and water, and a healthful environment.” N.Y. Const., Art. 1, Sec. 19. Because relatively few courts have interpreted the Green Amendment since it took effect in 2022, its full impact remains uncertain. However, recent decisions suggest that courts are willing to limit the types of legal claims that may be maintained under the Green Amendment.

Green Amendment Not Retroactive and Requires a Significant Contribution to Environmental Harm

Addressing the standard for maintaining a Green Amendment claim, an Erie County Supreme Court (located in the Appellate Division’s Fourth Department) recently held that the amendment did not provide a basis for enjoining a highway redevelopment project. W. N.Y. Youth Climate Council v. NYS Dep't of Transp., 2024 WL 5050061 (Sup. Ct. Erie Cty. Nov. 15, 2024). The court found that the operation and maintenance of a highway, which had existed for almost 60 years, did not violate the Green Amendment because the amendment did not apply retroactively. Adopting the State of New York’s position that plaintiffs must show that the project would “significantly contribute” to unclean air or water or an unhealthful environment, the court also found that the allegations did not rise to this level.

Green Amendment Does Not Alter the Regulatory Framework

A decision in the Southern District of New York has taken a more restrictive view. Chan v. U.S. Dep’t of Transp., 2024 WL 5199945 (S.D.N.Y. Dec. 23, 2024). The court denied a request to enjoin congestion pricing in New York City because plaintiffs were unlikely to succeed on their Green Amendment claim. The court found that the amendment did not create a “self-executing substantive right” to environmental standards beyond those in existing regulations. Rather, the court explained that the Green Amendment guarantees only a baseline level of clean air and water and a healthful environment, and plaintiffs must show that this constitutional minimum is not being met to have a claim. The reasoning of the Chan decision, if broadly embraced, could severely limit the availability of a private right of action under the Green Amendment.

Green Amendment Cannot Compel Discretionary Agency Action

In a suit targeting government enforcement discretion, the Albany County Supreme Court (located in the Third Department) dismissed a Green Amendment claim brought against the State of New York and the New York Department of Environmental Conservation (NYSDEC). See People v. Norlite, LLC, No. 907-689-22, Doc. No. 369 (Sup. Ct. Albany Cty. Dec. 30, 2024). Plaintiffs alleged that NYSDEC violated the Green Amendment by issuing a permit for and allowing the operation of a manufacturing facility. Relying on the Fourth Department’s July 2024 decision in Fresh Air for the Eastside, Inc. v. State of New York, the trial court concluded that this claim, while styled as a request for declaratory relief, actually sought to compel agency action. Because the Green Amendment claim challenged NYSDEC’s statutory discretion, the court held that it did not have the authority to grant the relief sought and dismissed the claim.

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While these decisions are not binding in other cases, they indicate that courts tend to interpret the reach of the Green Amendment narrowly and limit the types of claims they consider permissible under it. Regulated entities in New York should continue to monitor new litigation surrounding the Green Amendment and other decisions interpreting the reach of this state constitutional provision.