WHY IS NEW YORK’S LIBERAL LEGAL LION LETITIA JAMES UNDERMINING THE GREEN AMENDMENT?
High Acres landfill outside Rochester, New York, recipient of New York City’s garbage, center of courtroom fight between small-town residents and New York State officials to determine the meaning of the State Constitution’s new Green Amendment. Photo Credit: NYS Dep’t of Environmental Protection.
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Letitia James, New York’s Attorney General, enjoys a near solid-gold Liberal reputation. Some protesters even affectionately call her “‘Tish.”
James has sued Donald Trump, the NYPD, the National Rifle Association, issued a 165-page report finding former Gov. Andrew Cuomo sexually harassed female state workers, successfully defended New York's rent stabilization laws and, famously, visited a Brooklyn jail while inmates inside were protesting lack of heat in winter 2019, among other things. But her defense of New York City's right to dump its trash on a tiny upstate town raises questions about her commitment to protecting the environment, a State Supreme Court judge and environmental advocates say.
New Yorkers enacted a new Green Amendment to its State Constitution by a more than 2-to-1 margin in a Nov. 2, 2021 ballot proposal: “Each person shall have a right to clean air and water, and to a healthful environment." However, state officials, including New York's chief law enforcement official, Attorney General James, are not enforcing it. They’re even actively fighting against it.
"By its plain language, the Green Amendment does not impose any mandatory duty on the State to take enforcement action," argued a legal brief filed by James' office in an upstate court May 2022 . "Nothing," the brief continued, in the "legislative history of the Green Amendment suggests otherwise.”
James' office filed the brief in support of its request to dismiss a lawsuit filed by people living next to a giant 1,000-acre garbage dump in suburban Rochester.
The High Acres landfill has been a New York City garbage dump since 2015. That’s when giant “trash trains” started carrying it there. The group’s lawsuit alleges that odors and other "fugitive emissions" from the small mountain-like, hi-rise landfill foul the air around it so badly it violates the Green Amendment.
Part of the Attorney General’s job is to act as the People’s lawyer, looking out for the legal rights of New Yorkers as a whole. But the Attorney General’s job also includes defending state officials from lawsuits-like the one brought by people living next to High Acres.
Waste Management corporation’s High Acre landfill. Photo Credit: Waste Management corporation promotional photograph, website.
State Supreme Court Judge John J. Ark sided with the citizens' group against James and the state agency primarily responsible for enforcing New York's environmental protection laws, the Department of Environmental Conservation, or DEC. Judge Ark allowed the group's lawsuit against the DEC to proceed: "The state lacks the discretion to not comply with the Constitution," his scathing 20-page decision says. "The Green Amendment is clear."
Justice Ark criticized James for "the vigor" of her opposition defending the DEC. It does "not bode well for its enforcement of the Green Amendment."
“They’re trying to pretend nothing happened,” is how Pace University environmental law professor Nicholas Robinson sees it. “They feel they’re entitled to wait until the highest court in New York orders them to behave otherwise.”
Peter Bauer, president of the Adirondack-based environmental group Protect the Adirondacks!, also points the finger at the Attorney General.
"What James is doing is undermining the Green Amendment," he told The Free Lance. “What's happening outside Rochester is a big test case as to how broadly the Green Amendment is going to be interpreted by courts."
State officials have long done exactly what James and the DEC are doing with the Green Amendment: narrowly interpret broadly-written environmental laws clearly intended to offer maximum protection. That’s a diplomatic way of describing what is, at its core, nothing less than anti-Democratic nullification via administrative fiat of the People’s will as expressed by a popular vote.
For example, New York voters added Section 4 to Article 14 of the State Constitution in 1969. It created a "State Nature and Historic Preserve" intended to be quilted together over time with special places and parcels of land all around the state. It specifically required the legislature to make appropriations to acquire pieces to add to it. But only 14 properties have been added to the preserve in the 54 years since. 100s of prospective additions have been lost to development.
No one in New York knows how state agencies can thwart even Constitutional environmental rules better than Bauer of Protect the Adirondacks!
Protect won an eight-year legal fight against the DEC for building extra-wide snowmobile trails through the State Forest Preserve in 2021. The State Constitution has required the Forest Preserve be kept "forever wild" since 1895. It was clearly established that cutting large numbers of trees in the preserve was banned by the State Constitution in 1931. That’s when New York's highest court, the Court of Appeals, ruled a bobsled run couldn’t be built on Forest Preserve land without the People’s explicit approval via popular referendum enacting a Constitutional amendment specifically permitting it in no uncertain terms.
Yet DEC cleared large numbers of trees from swaths of Forest Preserve to make the disputed snowmobile trails. You don’t need a lawyer to know that if a bobsled run was not permitted, an extra-wide snowmobile road was illegal too. It was impermissible "'simply and solely for the reason," the Court of Appeals scolded state officials in 2021, that "the Constitution says that it cannot be done."
Protect is back in court defending the Forever Wild Clause again in 2023. This time its a dirt road the DEC is building-in the Forest Preserve’s most cherished part, the High Peak region, as previously reported by The Free Lance.
Bauer basically accused the DEC of being a rogue administrative agency.
"There really is no accountability for the DEC," he said. "They'll bend the law to serve the political objectives of those in power. That's they're ruling ethos. It's completely backwards. That's our experience."
State officials’ narrow interpretation of environmental laws was rebuked again in a state appeals court decision issued Mar. 2.
Now it was the Adirondack Park Agency, or APA, instead of the DEC, in the judicial hot seat. Like James’ defended the DEC, she defended the APA too.
The APA was specifically created by the Legislature to prioritize preservation over development in the Adirondacks. But the APA granted a marina on a pristine Adirondack lake permission to expand without conducting an environmental study of the lake's ability to sustain additional boat traffic without degrading water quality.
"Wholly unexplained and, indeed, inexplicable" is what the Appellate Division, Third Department called the APA action.
The successful lawsuit was brought by a former commissioner of the DEC, Thomas Jorling (1987-94), and litigated by Claudia Braymer, an environmental attorney who is also Deputy Director of Protect the Adirondacks!
"The State agencies responsible for protecting the natural resources of the Adirondack Park,” Jorling told The Free Lance, “are failing in their duty to protect the natural resources and character of the Adirondack Park.”
They’re “allowing the impairment and degradation of the natural resources of the Park,” Jorling charged. The series of legal decisions against them need to be taken “seriously.” DEC, APA together with James, the Attorney General, need to “review and revise their procedures in order to restore the public's respect and trust in their decisions.”
Attorney General James and the DEC were invited to respond but typically don’t when it concerns pending litigation.
NOTE: This report was edited after publication to reflect that the New York State Attorney General has two duties, one to the People, one to defend the State.
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