NARROWSBURG, NY — The Delaware Riverkeeper Network wants to enshrine the right to a clean environment in the New York Constitution.

“Here in the U.S. people have rights to free speech and religion, the right to bear arms and to freely assemble, but they do not have the right to clean water and air, a stable climate and healthy environments,” says a statement from Green Amendments for the Generations, a national organization. “Because environmental rights are not recognized across the U.S., government decision-makers are often free to disregard them in favor of other political or economic priorities.”

On April 5, the Delaware Riverkeeper Network and For the Generations filed an amicus brief to support an environmental group, Fresh Air for the Eastside, that sued the state for allowing the High Acres Landfill in the Towns of Perinton and Macedon to operate while emitting greenhouse gases. The brief was filed in the New York Appellate Division.

A judge agreed that the defendants— New York State, NYS Department of Conservation (DEC), New York City (which sends waste to the landfill), and Waste Management of New York LLC—violated the group members’ rights under the New York constitution’s environmental rights amendment, which states that “each person shall have a right to clean air and water, and a healthful environment.” The complaint alleges that methane from the landfill equaled the emissions from 3.3 billion miles driven by an average passenger vehicle, or 146 million gallons of gasoline consumed, or 1.4 billion pounds of coal burned. The complaint also alleges that many methane leaks were not being identified or repaired.

The group says the DEC and the state violated their constitutionally protected rights by authorizing and permitting activities at the landfill that result in odors and fugitive emissions, and by failing to use the state’s enforcement powers to control them.

The court dismissed the Green Amendment claim against the landfill’s operator, concluding it did not authorize claims against private entities. The court also dismissed the claim against New York City, whose waste represents 90 percent of the waste disposed at the landfill, saying the city was “merely a customer” of the landfill whose garbage would be replaced by the garbage of another customer.

All eyes on NY

The court did, however, deny the state’s motion to dismiss the case.

“The nation is watching New York, and how its green amendment is being used to advance needed environmental protections and justice,” said Maya van Rossum, who is the Riverkeeper as well as the founder of Green Amendments for the Generations. “New York is only the third state in the nation to have added a green amendment to its state constitution. The other two states are Pennsylvania and Montana.”

In 1972, after the first Earth Day, Montana passed an addition to its constitution that detailed the state’s responsibility to “maintain and improve a clean and healthful environment in Montana for present and future generations.”  Last summer, young activists in Montana used the law to bring the first-ever climate case in the United States to trial. A Montana judge agreed with the activists that state agencies were violating their constitutional right to a healthful environment by allowing fossil fuel development.

A victory in Pennsylvania preceded the Montana case. In 2013, the Riverkeeper and seven municipalities re-invigorated Pennsylvania’s constitutional environmental rights provision to defeat pro-fracking legislation.

Van Rossum says Pennsylvania’s green amendment made that victory possible. She founded Green Amendments for the Generations to help communities understand and pursue this powerful protection nationwide. The movement uses the tools of education and community engagement and provides legal expertise. The organization is working with communities in more than 20 other states seeking to secure their own green amendment protections.

“This case is of significant public interest because it is the first appellate case to interpret Article I, section 19 of the New York Constitution—New York’s Green Amendment," she said. "This court’s ruling is likely to have a statewide impact and may even impact the interpretation of green amendments in other states."