July 21, 2022

New York has seen a recent surge in laws to end the practice of environmental racism and to ameliorate its harms. This surge comes on the heels of an executive order President Biden issued identifying racism as a key driver for environmental injustices and decades-long advocacy from New York environmental-justice groups.

State protections are imperative now because just last month the court dealt a serious blow to the Biden administration’s attempts to slash emissions, specifically impacting marginalized communities. In West Virginia v. Environmental Protection Agency, the court curbed the Environmental Protection Agency’s ability to regulate the carbon emissions of existing power plants. In dissent, Justice Elena Kagan observed that the court’s decision “strips” the Environmental Protection Agency of the “power Congress gave it to respond to ‘the most pressing environmental challenge of our time.’”

By contrast, New York is adding protections against environmental racism, most notably in the form of a recently enacted constitutional amendment. The codification of New York’s “green amendment” creates a safety net for future environmental protections that may be under attack by the majority conservative Supreme Court.

New York’s green amendment offers new opportunities to enshrine New York’s environmental protections and attack environmental racism, as suggested by litigation in Pennsylvania under a similar provision in the Pennsylvania Constitution. And a new lawsuit challenging environmental racism in Rochester will test the potential of our new green amendment.

Environmental Racism in New York

Environmental racism refers to the institutional rules, regulations, policies, or government and/or corporate decisions that deliberately target Black and Brown communities for placement of major sources of pollution. These communities are targeted for locally undesirable land uses based on the lax enforcement of zoning and environmental laws. As a result, communities of color are disproportionately exposed to hazardous toxins.

Highway construction provides a powerful example of environmental racism. More than 50 years ago in Syracuse, state and federal officials constructed a massive highway through a redlined segregated Black community, Interstate-81. The construction of the 1.4-mile viaduct devastated a community that was home to Syracuse’s working-class Black residents, displacing over 1,300 families. Since 1968, I-81 has been a main artery for interstate trucking, spewing diesel fuel and other pollutants into the adjacent neighborhood that survived its original construction. Interstate-81 contributed to lowering land values, supercharging more industry development, and solidifying segregation and poverty.

As the value of the land closest to the I-81 viaduct plummeted, the city doubled down on its environmental burdening of the neighborhood. This community became home to a sewage-treatment facility, a steam-manufacturing plant, an electrical grid, and several brownfields. The environmental inequalities in this community have resulted in one in six Black children suffering from lead poisoning, some of the highest rates in the nation. In addition, residents who live closest to the viaduct suffer greater rates of asthma and other respiratory illnesses compared to their whiter, residential counterparts.

Similarly, New York City’s Black and Brown neighborhoods are home to New York’s power plants, wastewater treatment facilities, and major highways. For example, in the South Bronx, Mott Haven neighborhood, 97% Latinx and Black residents are collectively exposed to about 60% more pollution than is caused by their own consumption. Mott Haven is nicknamed “Asthma Alley” because it has some of the worst air pollution levels in the United States.

Evolving Statutory Safeguards

Historically, the state has relied on traditional tools such as New York’s State Environmental Quality Review Act (SEQRA) to manage and direct placement of major toxins. SEQRA deploys a balancing test that compares the need for the project against the environmental, social, and economic harm the project may cause. Most projects or activities proposed by a state agency or local government and all discretionary approvals/permits from a New York state agency must undergo a complicated and lengthy SEQRA process referred to as an environmental impact assessment (EIS). In summary, an EIS requires agencies to examine ways to avoid or reduce adverse environmental impacts related to a proposed action. It is important to note that harm from a project does not prevent a project from continuing. The question presented is “Does the need for the project outweigh the harm?”

SEQRA’s balancing test, frankly, has fallen short in addressing environmental racism. In fact, despite stark environmental inequalities mentioned above, between 1991 and 2016 New York courts in only two cases overturned an environmental impact assessment prepared under SEQRA requirements.

More recently, New York has had a surge in legislative initiatives to address the environmental-justice crises. For example, in 2019 New York legislators passed the Climate Leadership and Community Protection Act (CLCPA), which aspires to reduce New York state emissions for all New Yorkers. Specifically, the CLCPA established an environmental justice advisory group to ensure all New Yorkers reap the economic and environmental benefits of New York’s transition to zero emissions.

In June 2022, the state legislature passed significant amendments to the SEQRA law aimed at addressing SEQRA’s shortcomings for Black and Brown New Yorkers. If signed by Governor Hochul, New York will only be the second state in the nation to provide such strong protections. The amended SEQRA will require any proposed action to consider the impact on disadvantaged communities, including whether the action may cause or increase a disproportionate or inequitable pollution burden. If any such impacts exist, no permit shall be approved or renewed by the department, a stark and welcome deviation from the balancing test.

New York’s Green Amendment

The new SEQRA amendments came on the heels of a statewide campaign of more than 60 environmental groups advocating for a new constitutional amendment, coined the “green amendment.” Enacted in January 2022 and enshrined as Article I, §19 of the New York Bill of Rights, the green amendment creates a new constitutionally protected right: “Each person shall have a right to clean air and water, and to a healthful environment.” New York joins only three other states—Pennsylvania, Montana, Rhode Island—that elevate environmental protections to an inalienable right, on par with other fundamental rights like speech, property and religion.

The Pennsylvania experience may provide direction for New York courts facing our new constitutional amendment. Pennsylvania’s green amendment provides: “The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic, and esthetic values of the environment.” Until 2017 Pennsylvania courts assumed that if an environmental law was created by the legislature, then by extension the law met the constitutional standard.

That changed with Envtl. Def. Found. v. Commonwealth, 161 A.3d 911, 916 (Pa. 2017). In that case, the Pennsylvania Environmental Defense Foundation challenged the continued expansion and leasing of publicly-owned forest and parklands for Marcellus Shale gas extraction for net proceeds in the state budget. The Pennsylvania Supreme Court held that “a decision to lease Commonwealth property protected by the Constitution and held in trust for the benefit of all current and future Pennsylvanians is an appropriate subject of judicial scrutiny.” The court stated: “[T]he constitutional right exists independent of implementing legislation or regulations, not the other way around.” The court continued by stating “Pennsylvania deliberately chose a course different from virtually all of its sister states ….”

Like Pennsylvania, New York must view the constitutional protections in the broadest lens. Simply complying with existing laws does not meet the constitutional obligation. Rather, New York’s green amendment creates a separate and higher duty to comply. Therefore, if facts, science, cumulative impacts analysis, existing conditions, or community concerns demonstrate that stronger environmental protections are required, the green amendment provides that the government has the authority and the obligation to implement those stronger protections or forbid the proposed action.

A recently filed lawsuit will provide the New York courts with the first opportunity to interpret the green amendment. The plaintiffs in Fresh Air for the Eastside v. The State of New York, Index No. E2022000699 (Monroe Co.) are alleging that the operation of a landfill in Rochester is violating their rights under the amendment. More specifically, they allege that a waste-management facility is “stinking up” the neighborhood. At least once a week, tons of trash and waste are transported to the 296-acre facility. The gasses and smells from the facility are impacting a small neighborhood on the east side of Rochester. Residents have filed thousands of complaints with NYSDEC that the operation of the landfill causes fugitive emissions of landfill greenhouse gasses laced with hazardous substances as well as persistent, noxious, and offensive odors. The 30-page complaint claims the landfill, currently regulated by NYSDEC legislative permitting scheme, does not adequately protect residents’ constitutional right to clean air, water, and a healthful environment.

Conclusion

For New York’s green amendment to become a meaningful protection, New York courts must interpret it to require the end of the long-standing practice of placing pollutants in communities of color that already experience disproportionate pollution and are being denied the right to clean air, water, and healthful environment. If they do so, the environmental racism that has ravaged Black and Brown neighborhoods in New York for far too long finally may be curbed.

This piece was originally published in the New York Law Journal