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In the recent case of Fresh Air for the Eastside, Inc. v. State of New York (decided July 26, 2024), the plaintiffs sought to compel enforcement of the state’s newly adopted Green Amendment, aiming to regulate the conduct of non-state actors. The New York Appellate Division’s Fourth Judicial Department’s ruling substantially constrains use of the Green Amendment as a private right of action. This case highlights the challenges of enforcing constitutional environmental rights and underscores the complexities of judicial review in the context of administrative agency decisions.

A central issue in the case was whether the Green Amendment creates a right of action against private entities. The court reaffirmed precedents such as SHAD All. v. Smith Haven Mall, 66 N.Y.2d 496 (1985), emphasizing that the Green Amendment governs the relationship between citizens and their government, not private disputes. The argument that a private entity’s operations were sufficiently entwined with state policies to be considered state action was found insufficient, with the court ruling that regulatory oversight and municipal contracts did not render the private entity’s actions as state actions.

The court also addressed the claim seeking mandamus relief to compel state enforcement. It concluded that enforcing environmental regulations involves discretion and policy balancing, which are not permissible in a mandamus action. Mandamus is limited to compelling state agencies to undertake non-discretionary obligations. The court held that the Green Amendment did not alter the general rule under mandamus and could not be used to compel the state agency to take specific enforcement actions.

GT Insights

This ruling has several critical implications for environmental litigation and the enforcement of the Green Amendment:

  1. Limits on Green Amendment Claims: The decision clarifies that the Green Amendment cannot be used to compel the government to bring direct claims against private entities. This limits the scope of the amendment, focusing its application on governmental actions and policies.
  2. Discretionary Nature of Enforcement: The ruling emphasizes the discretionary nature of environmental enforcement by state agencies. It underscores the courts’ reluctance to interfere with agency decisions unless there is a clear abdication of non-discretionary statutory mandates.
  3. Future Environmental Litigation: This case demonstrates the challenges that plaintiffs face in seeking judicial enforcement based on the Green Amendment. It confirms that this amendment, for the most part, embeds in the state Constitution the general policies promoting environmental protection already present in the state’s Environmental Conservation Law. Litigants seeking to use the amendment to bolster private lawsuits may be disappointed.

See our previous blog posts on the topic:

Photo of Steven C. Russo Steven C. Russo

Steven C. Russo chairs the firm’s New York Environmental Practice. He focuses his practice on environmental law and litigation, environmental permitting, National Environmental Policy Act (NEPA), State Environmental Quality Review Act (SEQRA) review, toxic tort litigation, environmental crimes, Brownfields redevelopment, government, energy and

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Steven C. Russo chairs the firm’s New York Environmental Practice. He focuses his practice on environmental law and litigation, environmental permitting, National Environmental Policy Act (NEPA), State Environmental Quality Review Act (SEQRA) review, toxic tort litigation, environmental crimes, Brownfields redevelopment, government, energy and the environmental aspects of land use and real estate law. Steven is equally experienced litigating in federal and state courts, as well as counseling his clients with regard to environmental liability risk and due diligence, permitting, Brownfields, and impact assessment and review. He also practices election and campaign finance law.

Prior to joining the firm, Steven was the Chief Legal Officer of the New York State Department of Environmental Conservation. There, he supervised approximately 90 attorneys in Albany, as well as the agency’s nine regional offices. He also supervised the agency’s legislative affairs department and Office of Environmental Justice. At the agency, Steven initiated a reform of the state’s environmental review regulations and assessment forms, completed the issuance of new power plant siting regulations pertaining to environmental justice and carbon emissions and revised the agency’s environmental audit policy.

Steven also serves as election law counsel to a number of New York State and federal campaigns and political parties.

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Photo of Jenna Rackerby ˘ Jenna Rackerby ˘

Jenna Rackerby ˘ is an Enviornmental Practice Law Clerk/JD based in Greenberg Traurig’s New York office.

˘ Not admitted to the practice of law.