DECISION and ORDER PRELIMINARY STATEMENT The “Members” of Plaintiff Fresh Air for the Eastside, Inc.1 (“FAFE” or “Plaintiff”) are residents in the Town of Perinton, New York, who claim their recently acquired constitutional “right[ s] to clean air and water and a healthful environment”are being violated as a result of the actions or inactions on the part of the Defendants regarding the High Acres Landfill2 (“the Landfill”) in the adjacent Towns of Perinton and Macedon, New York. The Green Amendment. FAFE brings this action pursuant to the newly enacted Section 19 of Article I of the New York Constitution (the “Green Amendment” or the “ERA”) which guarantees, as of January 1, 2022, “[e]ach person shall have a right to clean air and water, and a healthful environment.” On November 2, 2021, New York State voters overwhelmingly passed3 a ballot measure adding the Green Amendment to the State Constitution. It was approved at a time when comprehensive laws, regulations and policies already existed that regulate air and the environment and was enacted despite the existing laws of the State of New York which created the New York State Department of Environmental Conservation (“NYSDEC”) with the purpose to “conserve, improve and protect [New York's] natural resources and environment.” (Environmental Conservation Law (“ECL”) §§1-0101, 3-0101). The New York State Constitution is the blueprint of governance in the state. All laws, regulations and state actions must be consistent with the provisions in the Constitution. Notably, this new right to clean air and a healthful environment was not placed into the Environmental Conservation Law by the Legislature, rather it was placed in the Bill of Rights of the Constitution. As a result of the new constitutional right to clean air, FAFE’s Complaint raises novel legal issues, as a matter of first impression for this Court. The Parties. The Defendant Waste Management of New York, L.L.C. (“WMNY”)4 owns and operates the Landfill, which accepts and disposes of mostly Municipal Solid Waste (“MSW”) generated by the Defendant City of New York (“NYC”) and transported to the Landfill via rail. Defendants the State of New York and the New York State Department of Environmental Conservation (“NYSDEC”) together are “the State”. Defendant NYSDEC is a governmental agency created on April 22, 1970 under the laws of the State of New York and was delegated the authority to protect and enhance the environment within the State of New York. NYSDEC is charged with the oversight, monitoring, and enforcement of laws and regulations related to the environment in New York State, including generation, transport, and disposal of solid waste, and air emissions. The State, and in particular NYSDEC, has an affirmative duty to all the citizens of New York to protect the environment. NYSDEC states that its mission is to “conserve, improve and protect New York’s natural resources and environment to prevent, abate, and control water, land and air pollution, in order to enhance the health, safety and welfare of the people of the state and their overall economic and social well-being.” NYSDEC is responsible for regulatory oversight and operating permit enforcement of the Landfill. NYSDEC regulations, at 6 N.Y.C.R.R. §360.19(i), require that a landfill “must ensure that odors are effectively controlled so that they do not constitute a nuisance as determined by [NYSDEC].” Defendant New York City (“NYC”) is a municipal corporation created and existing under the laws of the State of New York. NYC is responsible for the collection, transport, and disposal of MSW generated in NYC, including the NYC garbage. NYC has contracted with WMNY to collect, transport, and dispose of NYC garbage. The contracts provide that should WMNY fail to comply with any laws, and create any impermissible odors or other adverse environmental effects, then a breach of the contracts has occurred. NYC can then enforce the breach and therefore abate the impermissible odors or other adverse environmental effects. Plaintiff’s Complaint. Plaintiff complains that WMNY has acted jointly and/or in concert with the State and NYC, and with the approval of NYSDEC, to operate the Landfill in a manner that results in the Odors and Fugitive Emissions which deprive Members of their right under the Green Amendment to clean air and a healthful environment, to wit: The current and future liability of the Defendants arise each in part from their continued aggregate, cumulative actions and failures to live up to the statutory goals and policies of reducing the amount of waste disposed, which would reduce greenhouse gasses (“GHGs”). See Complaint 165. Defendants have already caused and continue to cause harm to the natural environmental systems critical to the Members and all citizens of New York and are causing Members and the surrounding community to breathe unhealthy air. See Compl. 154. The attempts by Defendants to mitigate the Odors and Fugitive Emissions are wholly inadequate to preserve a habitable climate and healthful environment. See Compl. 162. By allowing repeated permit and regulatory violations at the Landfill and delaying actions to drastically cut GHG emissions, the State is acting contrary to its mission and contributes to the cumulative impact of climate change, which will affect the health and well-being of the Members. This failure breaches the agency’s basic duty to care for the Members and their environment. See Compl. 156. NYSDEC has authorized and permitted activities that emit vast quantities of GHGs into the atmosphere, further contributing to the global impact of climate change and the destruction of a habitable climate. See Compl. 157. The State has failed to adequately use its enforcement powers to cause WMNY to control the Odors and Fugitive Emissions at the Landfill. See Compl. 163. NYC has failed to abate the harmful environmental conditions caused by WMNY related to the Odors and Fugitive Emissions, which is an abdication of its duty under the New York City Charter to ensure the proper disposal of NYC Garbage which it can enforce through the NYC contract with WMNY to prevent Community impacts. See Compl. 159. By NYC failing to implement a long-term plan to reduce, recycle and reuse its garbage, NYC is acting contrary to its own sustainability goals since it is exporting most of the NYC Garbage to methane emitting landfills. See Compl. 160. NYC has also failed to properly incentivize recycling within the five boroughs of NYC, and instead prefers to simply ship NYC garbage to the Landfill and other landfills in Central and Western New York. See Compl. 161. The continued permitted expansion and operation of this mega-landfill is contrary to New York statutory policy, including both the New York Solid Waste Hierarchy set forth in Environmental Conservation Law (“ECL”) §27-0106, which makes landfilling the solid waste management strategy the least preferred option, in the “interest of public health, safety and welfare and in order to conserve energy and natural resources.” The New York Climate Leadership Community Protection Act (“CLCP A”) set forth at ECL Article 75, makes reduction of GHG the goal of the State. The State and NYSDEC have failed to enforce applicable laws, regulations and permits applicable to the Landfill, which should be applied to prevent or reduce the Fugitive Emissions and Odors. Requested Relief. As a result, the Defendants are each violating the FAFE Members’ constitutionally protected rights to “clean air…and a healthful environment.” See Compl. 166. By reason of this constitutional violation, this Court should issue an injunction directing the immediate proper closure of the Landfill. See Compl. 167. Alternatively, this Court should enjoin Defendants to immediately abate the Odors and Fugitive Emissions in the Community by, at a minimum, installing a permanent cover as defined in the 6 NYCRR Part 360 regulations on all the side slopes of the Landfill Cells 1-11 not being actively landfilled in Perinton, and daily SEM monitoring of the entire surface of the Landfill, to ensure a substantial reduction in Fugitive Emissions and negative air quality impacts. See Compl. 168. Accordingly, Plaintiff requests this Court award the following relief: (1) declare the Defendants are violating Plaintiff’s Members’ constitutional rights under the Green Amendment in Article I §19 of the New York State Constitution to clean air and a healthful environment by causing the Odors and Fugitive Emissions and the emissions of GHGs into the atmosphere, furthering the cumulative impact of climate change; and (2) ordering the immediate proper closure of the Landfill, or alternatively directing Defendants to immediately abate the Odors and Fugitive Emissions in the Community; and (3) granting such other further relief as this Court deems just and proper, including Plaintiff’s costs, reasonable attorney’s fees, and disbursements pursuant to CPLR Article 86. Facts as set forth by Petitioner.5 A. The Landfill. The Landfill is located at 425 Perinton Parkway in the Town of Perinton, Monroe County, and in the adjacent Town of Macedon, Wayne County, in the State of New York. The Landfill causes fugitive emissions (“Fugitive Emissions”) of landfill gas (“Landfill Gas”), including among other constituents, greenhouse gasses (“GHG”) laced with hazardous substances released and otherwise discharged into the air, as well as persistent, noxious, and offensive odors (“Odors”) of garbage and landfill Gas. The Landfill has been in operation since about 1972, at which time it was much smaller in size and did not ship in waste by rail. When the rail transportation of waste from NYC commenced in about 2015, serious problems began. The Landfill is governed by numerous permits issued by the State and other government agencies, including for example, its 6 N.Y.C.R.R. Part 360 Solid Waste Management Facility Permit (the “Landfill Permit”) and Title v. Clean Air Act Permit (the “Air Permit”) (together, the “Permits”). The Landfill Permit expires on July 8, 2023, and the Air Permit expired on December 1, 2021.6 The Landfill Permit was modified in 2013 to allow WMNY to construct and operate a rail siding to manage waste brought to the Landfill via intermodal rail from NYC, and since 2015, NYC Garbage has represented an increasing majority of the total MSW the Landfill accepts for disposal. In fact, beginning in mid-2015, rates of NYC Garbage brought to the Landfill by rail caused the total MSW disposed to increase by more than 250 percent, and NYC garbage currently represents about 90 percent of all MSW disposed at the Landfill. B. The Landfill Causes Unclean Air and an Unhealthful Environment. Since at least 2015, the Landfill’s Odors and Fugitive Emissions have invaded the community, including public places, private properties, and homes of F AFE Members. See Compl. 38. The Landfill’s untreated Fugitive Emissions, which include at least 15 percent of the total Landfill Gas created by the Landfill, are well-documented. See Compl. 39. The Fugitive Emissions consist of methane, carbon dioxide, and non-methane organic compounds (“NMOC”), which include volatile organic chemicals (“VOCs”), and hazardous air pollutants (“HAPs”), as well as hydrogen sulfide and other odorous reduced sulfur compounds that smell of rotten eggs, even in the parts per billion range. See Compl.
40, 41, 43. The methane present in the Fugitive Emissions is a potent greenhouse gas (“GHG”) See Compl. 44. FAFE was created in late 2017 because the Odors and Fugitive Emissions were negatively impacting the rights of Members and their children to breathe clean air. Compl. 9. The Members of F AFE include more than 200 individuals who own property and/or reside about 0.3 to 4 miles from the Landfill, and whose lives and properties have been and continue to be adversely impacted by persistent, noxious, offensive Odors and Fugitive Emissions being released from the Landfill. Compl. 10. F AFE Members began complaining to the Town of Perinton and NYSDEC, but were so frustrated by the lack of response, a software application (“F AFE App”) was developed to document complaints of Odors and/or Fugitive Emissions. Compl. 48. Since the F AFE App was created in 2017, through January 4, 2022, it has logged over 23,670 complaints of Odors and Fugitive Emissions, over a wide-spread area around the Landfill. Compl. 52. At least 99 of those complaints were made after January 1, 2022. Compl. 52. NYSDEC has logged at least 2,626 complaints of Odors and/or Fugitive Emissions. Compl. 55. The Odor and Fugitive Emissions are continuing in nature. Compl. 10. F AFE Members are not only exposed to Odors and/or Fugitive Emissions when they are outside in public spaces or in their own backyards, but also inside their private residences since the gasses contaminate the indoor air in their homes. Compl. 135. Members are not only concerned with Fugitive Emissions (which NYSDEC does not require WMNY to monitor on a frequent and continuous basis) that pollute their air, but also with the impacts large GHG emitters like the Landfill will have on climate change and their environment, especially because WMNY admits that changes to weather conditions interfere with its ability to properly operate the Landfill and control the Odors and Fugitive Emissions emanating from the Landfill. Compl. 148. C. The Landfill Is Not in Compliance with Numerous State Environmental Laws and Regulations. The Odors/Fugitive Emissions problems at the Landfill are well-known. The Complaint details the various ways that the Landfill is already operated contrary to or in violation of current laws and regulations: the Landfill is not complying with cover requirements (Compl.
