New York’s Green Amendment would be “toothless” if a lawsuit against the Seneca Meadows landfill for allegedly emitting noxious odors were dismissed

The Article previously appeared in Waterfront.

ALBANY, NY — The state’s Green Amendment would become “toothless” if a state court in Albany grants a motion to dismiss a lawsuit seeking to block the expansion of Seneca Meadows Inc.’s landfill because of odor nuisance, an attorney for the plaintiffs suing SMI argued in a brief last week.

A week earlier, the state’s Attorney General, Letitia James, had asked the court in Albany to drop the lawsuit against the state Department of Environmental Protection and the state’s largest landfill in Seneca Falls.

James argued that a Rochester appeals court’s dismissal of a separate Green Amendment lawsuit against the High Acres landfill in Fairport set a binding precedent in the SMI case.

But Philip H. Gitlen, speaking on behalf of the nonprofit environmental group Seneca Lake Guardian (SLG) and others, argued that the two cases raise fundamentally different legal questions.

While the plaintiffs in High Acres tried unsuccessfully to compel the court to take action to curb the odor nuisance, the SMI plaintiffs are not seeking coercive measures.

Rather, the SMI plaintiffs are asking the court to find that Seneca Meadows’ current activities violate their constitutional rights to “clean air” and a “healthy environment” under the Green Amendment. Second, they are asking for an injunction blocking the proposed landfill expansion on the grounds that it would perpetuate the alleged constitutional violation.

The DEC, Gitlen argued, “is trying to perpetuate a permit system under which some New York citizens are forced to breathe air that makes them sick and are regularly confronted with disgusting bird droppings.”

“SMI is trying to continue to impose these unconstitutional burdens on its neighbors. And the Attorney General (James) continues to support the ‘status quo.'”

Gitlen, a former DEC general counsel, said James’ claim that the High Acres case sets binding precedent in the Seneca Meadows case “distorts” the Seneca Lake Guardian’s arguments and “misrepresents the potential applicability (of the High Acres decision) to these pleadings.”

James based her defense of the DEC in the SMI case on the decision in the High Acres case, issued July 26 by a panel of the Fourth Judicial Department of the state’s Appellate Division.

Seneca Meadows filed a separate complaint on August 2 asking the Albany court to dismiss the suit as a defendant in the case against the Seneca Lake Guardians on the grounds that the claims were barred by the “binding precedent” of High Acres.

The appeals panel had overturned a trial court’s decision dismissing a lawsuit brought by the nonprofit Fresh Air for the Eastside Inc. against the DEC, the owner of High Acres (Waste Management Inc.), and the City of New York, which supplies most of the garbage.

In its ruling, the Court of Appeal found that citizens cannot invoke the Green Amendment to compel a government agency to take action against violations of odor regulations.

Enforcement decisions of an administrative authority are not amenable to judicial review, it said, “unless the administrative authority has consciously and expressly pursued a general policy so extreme as to amount to a neglect of its legal responsibilities.”

However, this leaves residents living near the Seneca Meadows landfill who are directly harmed by the harmful odors emanating from SMI with no legal recourse, Gitlen said.

“While one might expect such an argument from SMI,” Gitlen wrote, “it is shocking that NYSDEC and the popularly elected Attorney General representing NYSDEC take the position that the decision of two consecutive legislatures and the two-thirds majority vote in approving the Environmental Rights Amendment … was an exercise in futility – and yet, unfortunately, this appears to be the case.”

The Environmental Rights Amendment (better known as New York’s Green Amendment) went into effect in January 2022, following a statewide referendum last November.

It guarantees citizens a constitutional right to “clean air, clean water and a healthy environment”.

The two landfill odor cases are expected to shed light on how state courts will apply and enforce the new law.

A lawyer for the Fresh Air group said her clients plan to appeal the Fourth Department’s decision to the state’s highest court, the Court of Appeals.

Meanwhile, Seneca Meadows is making a highly controversial bid to continue operations beyond the currently required closure date of December 2025.

The landfill has applied for a DEC permit that would allow for a significant expansion and an increase in elevation of approximately 70 feet. This expansion would allow the landfill to continue operating at current levels through 2040.

Waterloo Container Co., a co-plaintiff in Seneca Lake Guardian, has long criticized the landfill and the DEC for failing to control sewer gases (hydrogen sulfide) and landfill odors in and around the cities of Seneca Falls and Waterloo.

On August 6, a Waterloo Container spokesperson asked the Seneca Falls City Council to deny the landfill a local operating permit due to a lack of odor control.

“Our records show that over the past two months, 23 percent of our workdays in June and July were affected by intolerable odors,” Mark Pitifer told the city council. “One time in June, employees became ill due to the intense and persistent odors.”

Pitifer said landfill employees tasked with assessing odor complaints reported by Waterloo Container and confirmed by city zoning officials have consistently reported “No Odor Detected” for the past two months. Those reports, prepared by the landfill, are sent to the DEC.

A YouTube recording of the town hall meeting shows Pitifer’s statement starting at minute 8:48.