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, which is designed to regulate the conduct of non-state actors. The ruling by the Fourth Judicial Department of New York’s Appellate Division significantly limits the use of the Green Amendment as a private right of action. This case highlights the challenges of enforcing constitutional environmental rights and underscores the complexity of judicial review surrounding administrative agency decisions.
A central question in the case was whether the Green Amendment creates a right of action against private companies. The court reaffirmed precedents such as SHAD All. vs. Smith Haven Mall66 NY2d 496 (1985), emphasizing that the Green Amendment governs the relationship between citizens and their government, not private disputes. The argument that the activities of a private corporation were sufficiently intertwined with state policy to be considered governmental action was found inadequate, and the Court held that agency oversight and municipal contracts did not render the private corporation’s actions governmental.
The court also addressed the issue of mandamus to compel state enforcement. It concluded that enforcing environmental regulations requires discretion and political consideration, which is not permitted in a mandamus proceeding. Mandamus is limited to forcing state entities to undertake non-discretionary obligations. The court held that the Green Amendment does not change the general rule of mandamus and cannot be used to compel the state entity to take specific enforcement actions.
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This ruling has several critical implications for environmental litigation and the enforcement of the Green Amendment:
- Limitations on Green Amendment claims: The decision clarifies that the Green Amendment cannot be used to compel the government to bring direct claims against private companies. This limits the scope of the amendment and focuses its application on government actions and policies.
- Discretionary nature of enforcement: The judgment highlights the discretionary power of state authorities to enforce environmental protection regulations. It underscores the reluctance of courts to interfere in decisions made by authorities unless non-discretionary legal requirements are clearly waived.
- Future environmental disputes: This case highlights the challenges faced by plaintiffs seeking judicial enforcement under the Green Amendment. It confirms that the amendment largely enshrines in the state constitution the general environmental protections already contained in the state’s environmental protection law. Litigants seeking to use the amendment to strengthen private litigation may be disappointed.
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