Appellate Court Reaffirms the Limited Application of New York’s Green Amendment by Private Parties Seeking to Compel Government Action
Last week, the Appellate Division, Third Department reaffirmed and further limited the application of New York’s Green Amendment. This follows the Appellate Division, Fourth Department’s decision last year in Fresh Air for the Eastside, Inc. v. State of NewYork1, which held that the state constitutional amendment does not create a private right of action against private actors. In Fresh Air for the Eastside, the Fourth Department also rejected arguments that the Amendment altered the longstanding rule that mandamus does not lie to compel an enforcement agency to pursue alleged violators, except in rare circumstances. The Third Department rejected the argument that the Green Amendment compelled the State to revoke an industrial facility’s permits and affirmed the lower court’s holding that the Green Amendment did not create a cause of action to compel enforcement action by the State.
People v. Norlite, LLC is the latest in a series of cases limiting the applicability of the Green Amendment2. The Norlite litigation arose from the State’s efforts to hold Norlite responsible for ongoing environmental violations related to on-site shale quarry mining and aggregate production, seeking civil penalties and a permanent injunction to abate fugitive dust. Intervenors – a group of individuals and local organizations – allegedly impacted by fugitive dust emissions sought a declaratory judgment against the New York State Department of Environmental Conservation (“NYSDEC”) declaring that the “continued operation of defendant’s facility … violates their rights to a clean and healthful environment under the Green Amendment of the NY Constitution,” and requested an injunction directing NYSDEC to “revoke or rescind defendant’s permits and prohibit defendant from resuming operation.”3
After noting NYSDEC’s extensive enforcement history against Norlite – including multiple notices of violation, more than $500,000 in penalties and environmental project contributions, and commitments to reduce dust exposure – the Third Department affirmed the lower court’s decision and the Fourth Department’s reasoning in Fresh Air for the Eastside. The court held that, contrary to the intervenors’ contentions, the Green Amendment does not “create[] a self-executing substantive right that imposes environmental standards above and beyond the state’s preexisting—and robust—environmental regulatory regime.” Like Fresh Air for the Eastside, the court found that although styled as a declaratory judgment action, the suit was effectively an Article 78 proceeding seeking mandamus to compel NYSDEC enforcement. Mandamus is available only for mandatory, ministerial acts, not discretionary decisions that may produce multiple acceptable outcomes. Because enforcement decisions are discretionary and Environmental Conservation Law provisions state that NYSDEC “may modify, suspend or revoke a permit,” a private party cannot compel a particular enforcement outcome.4
Hodgson Russ Insights
By reaffirming Fresh Air for the Eastside, the Third Department continued a line of cases holding that the Green Amendment does not provide private parties with independent substantive rights beyond existing law. The court reinforced this conclusion by distinguishing New York’s amendment from those in other states, noting that “New York did not include language requiring the State to enforce the amendment … or expressly authorizing members of the public to enforce the amendment.”5 The Third Department also interpreted the legislative history as supporting the conclusion that the Green Amendment did not create additional causes of action beyond existing claims for public nuisance, land-use violations, or negligence. Together with Fresh Air for the Eastside and several lower-court decisions, this ruling further narrows arguments that the Green Amendment creates any additional substantive rules beyond those already enumerated in the State’s environmental, land use, and tort laws, absent contrary guidance from the Court of Appeals.
One unanswered question is whether the State or administrative agencies may independently rely on the Green Amendment to impose regulatory standards beyond those provided in existing law. It also remains to be seen whether agencies relying, in whole or in part, on the Green Amendment to support permit denials or conditions will receive additional judicial deference.
For additional information and insights regarding New York’s Green Amendment, see Hodgson Russ’ previous September 10, 2024, alert: Appellate Court Rejects Claims Under New York’s Green Amendment in Landfill Nuisance Case
If you have any questions about this case, or with the application of New York's Green Amendment or other land use issues, contact Thomas Berkman (518.433.2456), Daniel Spitzer (716.848.1420), Charles Malcomb (716.848.1261), Alicia Legland (518.433.2416), or any member of our Environmental team.
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1 Fresh Air for the Eastside, Inc. v. State, 229 A.D.3d 1217, 217 N.Y.S.3d 381 (2024), appeal dismissed, 42 N.Y.3d 1084, 252 N.E.3d 1124 (2025), and leave to appeal denied sub nom. Fresh Air for Eastside, Inc. v. State, 237 A.D.3d 1610, 231 N.Y.S.3d 734 (2025), and leave to appeal denied, 44 N.Y.3d 907, 271 N.E.3d 725 (2025)
2 People v. Norlite, LLC, No. CV-25-0091, 2026 WL 530410 (N.Y. App. Div. Feb. 26, 2026)
3 Id. at 3.
4 Id. at 5 (quoting Environmental Conservation Law (“ECL”)§ 70-0115 and ECL § 27-0913[3].
5 Id. at 3 (comparing NY Green Amendment to Mont Const, art II, § 1 and 3; art IX, § 1; Pa Const, art I, § 27, and Haw Const, art XI, § 9)