New York landfill court case illustrates right to clean water 2022-12-30

A lawsuit using New York State’s recent Environmental Rights Amendment illustrates what a Right to Clean Water constitutional amendment could do for Florida or Georgia.

Here’s what’s going on in Perinton, NY. Then Joseph Bonasia of Florida Rights of Nature Network provides examples of how Florida’s pending Right to Clean and Healthy Waters (RTCW) could be used to solve similar cases.

In Georgia, an RTCW amendment could perhaps be used to get cities to stop trash from polluting waterways, for example maybe to get Valdosta to enforce its ordinances against landowners letting trash off their property and requiring so many trash cans per number of parking places. That would keep much trash out of creeks such as Hightower Creek, Sugar Creek, and the Withlacoochee River, protecting neighborhood children, wildlife, and the river all the way to Florida.

[High Acres Landfill, Rochester, NY. Photo: Max Schulte]
High Acres Landfill, looms over a neighborhood in Perinton, near Rochester, NY. Residents claim the dump violates their state constitutional right to “clean air, clean air, and a healthful environment.”, Photo: Max Schulte

Gino Fanelli, Rochester City Newspaper, March 28, 2022, Neighbors say Perinton landfill violates their constitutional right to ‘clean air’,

The sour scent of rot hung over Perinton Parkway one early spring day.

The parkway meanders southeast off Route 31F at the edge of town, through an office park, marshlands, athletic fields, and cow pastures. To the north, a residential neighborhood rises in the distance. To the south lies the source of the smell: the Waste Management’s hulking High Acres landfill.

The dump is a rolling landscape of trash, grassland, and methane-release pipes jutting from the ground.

The dump is a rolling landscape of trash, grassland, and methane-release pipes jutting from the ground.

“There’s two different odors, there’s the gas odors, and then there’s the garbage odors coming from when they open the landfill and are actually dumping, or the trains unloading from New York City,” said Gary McNeil, president of citizen’s group Fresh Air for the Eastside, which formed in 2017 in response to the foul smells from the dump. “That gets a little worse in the summer, you’ll smell a much more pungent waste odor.”

The two sides are no strangers to litigation. Fresh Air for the Eastside has two lawsuits against Waste Management pending in both federal and state courts.

But early this year, Fresh Air escalated its efforts when it filed a parallel lawsuit to press the boundaries of a nebulous new amendment to the state Constitution that gave New Yorkers the right to “clean water, clean air, and a healthful environment.” In its complaint, the group contends the landfill, which has a permitted footprint of 360 acres and a permitted volume of 71.5 million cubic yards, is running afoul of the amendment.

The High Acres landfill is cleared to take in over a million tons of garbage every year. Voters approved the so-called Green Amendment during the 2021 election and it took effect at the start of the year. The latest Fresh Air lawsuit, which was filed in January, is widely believed to be the first in New York to take on the constitutional amendment.

New York court case is a potent example of what a clean water amendment could accomplish in Florida: Proposed amendment would give Floridians a powerful tool to protect their right to clean water,

By Joseph Bonasia, Florida Rights of Nature Network

Here’s what Floridians need to know about the first lawsuit involving New York’s Green Amendment, approved by voters in 2021, and every New Yorker’s “right to clean air and water and a healthy environment,” a right we in Florida do not have.

Fresh Air for the Eastside v. The State of New York, et al. involves greenhouse gas emissions and nauseating, noxious odors from New York’s second largest landfill, the source of 26,000 community complaints since 2017. In 2022, citizens filed suit charging the state’s DEP with failure to prevent a violation of their new environmental rights.

The state asked the court to dismiss the case. In refusing, the court recently made several important legal determinations that bode well for Florida’s proposed constitutional “Right to Clean and Healthy Waters.”

The amendment, the court stated, is self-executing and fully enforceable against the state when through action or inaction it violates these rights. Plaintiffs, it said, are not required to exhaust all other administrative remedies before appealing to the court for relief under these rights. It affirmed the basic but essential fact that the state and its agencies cannot at their discretion violate the state constitution, and that the court has the authority to compel the state to correct a violation of the people’s rights.

Joseph Bonasia

That’s a lot to read into a 14-word amendment, but that’s what courts do: case by case they determine what new laws mean and how they get applied.

Pennsylvania’s Green Amendment was key in finding that state’s notorious Act 13 unconstitutional. Under Act 13, a municipality would have had no authority to prevent fracking operations next to schools or in church parking lots, for example, and doctors couldn’t speak publicly about health impacts to their patients.

Montana’s Green Amendment stopped a mining deal that would have produced 245 tons of toxic waste for every ounce of gold and would have consumed 10,000 to 15,000 gallons of fresh water every minute, lowering the water table 1,000 feet.

Citizens and ecosystems in these states needed protection. Their constitutional rights protected them, and New Yorkers decided they needed the same level of rights. So do we.

Waterways in Miami-Dade that feed into Biscayne Bay have not been meeting water quality standards for years and BMAPs (basin management action plans) have not been implemented, resulting in algal blooms and fish die-offs.

With a Right to Clean and Healthy Waters (RTCHW), Floridians could file suit, and our courts, after reviewing the evidence, could order the DEP to enforce standards and implement long overdue BMAPs. We could begin restoring the bay to health.

The Indian River Lagoon lost 58% of its seagrass area since 2009, more than 46,000 acres. Consequently, manatees in the lagoon are starving to death in tragic numbers. Waters that cannot support seagrass beds would be in violation of our RTCHW, and we could hold the state accountable. Feeding manatees lettuce isn’t the answer. Curtailing pollution is, and the state would be constitutionally bound to do so.

Armed with information from a 2008 report by the Army Corp of Engineers, which predicted catastrophe if the DEP permitted further use of the Piney Point phosphate plant in Manatee County, our amendment could have compelled better decision-making on the part of the state, thus avoiding the release of 215 million gallons of polluted water into Tampa Bay. A RTCHW could help us avoid another Piney Point.

A full list of examples would take pages.

Florida waters are polluted because the state permits it through action or inaction, and its MO is to allow as much pollution as is politically acceptable. It does this out of political ideology, deference to special interests, and to fatten campaign coffers.

Because the judge in New York read much into “Each person has a right to clean air and water and a healthful environment,” a higher court could overrule this judgment. Indeed, it is a legal concern that the brevity of the amendment could be vulnerable to other court interpretations and challenges.

But the determinations the judge found implicit in New York’s law are explicit in ours. It would be against plain-text meaning and established legal doctrine to declare the RTCHW isn’t fully enforceable against government action or inaction or that courts can’t compel the state to correct violations by cleaning up our waters.

The language in our amendment is purposely explicit to best ensure its ability to meet legal challenges and to protect our right to clean water.

In 2023, we need what the state will not provide: bold environmental action to restore and protect our waters. Floridians, therefore, must qualify a “Right to Clean and Healthy Waters” amendment for the 2024 ballot for approval by voters. Then we could compel bold action, because we’d have the constitutional right to.

Sign and mail the petition available at

Joseph Bonasia is Chair of Florida Rights of Nature Network.

“The Invading Sea” is the opinion arm of the Florida Climate Reporting Network, a collaborative of news organizations across the state focusing on the threats posed by the warming climate.

For more about Right to Clean Water in Florida and Georgia, see:

 -jsq, John S. Quarterman, Suwannee RIVERKEEPER®

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