This Changes Everything: New York’s Environmental Amendment
Rebecca Bratspies, New York City.
25 February 2022
In November 2021, New Yorkers overwhelmingly voted to add an environmental amendment to their state constitution.
Section 19, which provides that “Each person shall have a right to clean air and water, and a healthful environment,” is now part of the New York Bill of Rights (the part of New York’s constitution that defines individual liberties and the limits of state power).
This language is both sweeping and simple.
It guarantees all New Yorkers the constitutional right to live, work, and play in communities that are safe, healthy, and free from harmful environmental conditions.
As Steve Englebright, the amendment’s primary sponsor in the state assembly, explained: “the right to clean air and clean water and a healthful environment is an elementary part of living in this great state.”
Just to give some perspective on how momentous this moment is, the last time any state amended its constitution to recognize environmental rights was 1971 when Pennsylvania voters voted overwhelmingly to add Article I, Section 27 to their constitution.
The final vote adopting this amendment indicated wide political support for environmental rights — the proposal to add Section 19 to the New York constitution garnered just over 70% support from voters, a greater than 2:1 margin.
And, before being added to the ballot, the proposed amendment first had to twice pass both houses of the state legislature — something it also did by an overwhelming margin.
This amendment clearly and unambiguously reflects the will of the people of New York.
In this, New York is part of a broader social consensus on environmental rights across the United States and around the world.
In the Fall of 2021, just before New York adopted its environmental amendment, the United Nations Human Rights Council voted overwhelmingly to recognize the right to a clean, healthy, and sustainable environment as a universal human right.
In the Spring of 2022, the UN General Assembly as a whole will consider a similar resolution recognizing the human right to a healthy environment.
Appropriately, this vote will take place in the UN’s New York headquarters — bringing environmental rights full circle.
The New York City Bar Association has long been a vocal supporter of this UN resolution.
What does it mean to amend the state constitution?
The United States has a federal system in which both states and the national government have constitutions.
The federal Constitution’s Bill of Rights, which applies to the states through the 14th Amendment, defines the minimum constitutional rights that must be accorded to every person in the United States.
While States cannot use their constitutions to deprive individuals of the minimum federally guaranteed rights, they may add additional protections.
With this amendment, New York has expanded the fundamental rights of New Yorkers to include the right to a healthy environment.
When the “forever wild” provision was added to the New York constitution in 1894, New York became the first state in the Union to include environmental protection in its state constitution.
By enacting Section 19, New York has once again placed itself as the vanguard of green constitutional amendments, but it is far from alone in its embrace of environmental rights.
Montana, Pennsylvania, and, to a lesser extent, Hawaii, Massachusetts, and Illinois recognize environmental rights, as do the national constitutions of well over 100 countries.
The United Nations Human Rights Council recently recognized the right to a clean, healthy, and sustainable environment as a universal human right.
How will this amendment promote environmental justice?
Section 19 is a clear recognition that environmental rights belong to everyone — that no people and no neighborhoods can be sacrificed on the altar of economic growth.
By grounding environmental rights in the state constitution, New Yorkers have committed their state to a new path forward — one based on environmental justice.
Environmental justice involves both fair treatment and meaningful involvement of communities in decisions by which environmental choices are made.
The constitutional rights enshrined in Section 19 give substantive heft to procedural rights that have long been a part of environmental decision-making under the National Environmental Policy Act (NEPA) and the State Environmental Quality Review Act (SEQRA.)
These existing laws are focused on creating a pathway for public participation in decision-making processes largely in order to prevent “uninformed rather than unwise” decisions.
By contrast, the substantive environmental rights enshrined in Section 19 put issues of fair treatment — how environmental burdens and benefits are actually distributed — squarely on the table.
With the adoption of Section 19, the right to clean air, pure water, and a healthy environment are now on equal constitutional footing with the right to property (Art. I, §7), to petition the government (Art I, §9), freedom of religion (Art, I, §3), and freedom of speech (Art. I, §8).
Like these other constitutionally-protected fundamental rights, Section 19 delineates self-executing rights (meaning they can be claimed without additional implementing legislation) that the government can neither deny nor infringe.
Every person holds these environmental rights by virtue of being in New York, and Section 19 applies whenever state action might impede those rights.
It imposes constraints on what the government can do vis-à-vis environmental rights as well as on how the government must make decisions.
All agencies and local governments will need to ensure their decisions take full account of environmental rights.
In short, public officials of all stripes must embed protecting environmental rights into the fabric of all governmental workways.
Moreover, this amendment shifts the baseline for considering environmental (in)justice.
For far too long, New York’s Black communities, communities of color, and low-income communities have borne far more than their fair share of the environmental burdens, with pollution disproportionately and systematically impacting their communities.
They have had to fight tooth and nail for basic environmental rights.
Poor communities, and communities of color, bear the brunt of polluted air, unsafe water, and the growing impacts of climate change.
Nearly a century ago, structural racism in the form of redlining intentionally cut Black and brown communities out of the New Deal and out of the economic prosperity it built.
New York compounded this legacy of structural racism by steering most of its polluting infrastructure into these same communities, and then by failing to protect those communities with rigorous environmental enforcement.
As a result, a Black child in New York is 42% more likely to have asthma than a white child, eight times more likely to be hospitalized for asthma-related ailments, two or three times as likely to miss days of school because of asthma.
Across the state, Black New Yorkers are nearly four more likely to die from asthma-related complications.
The same grim disparities hold true for cardiovascular and pulmonary disease, which are also closely related to pollution.
Recent studies have shown how increased exposure to pollution heightens the risks posed by COVID-19.
Section 19 must be read in combination with the pre-existing guarantees of equal protection under law and the prohibition of discrimination (Art. I, §11).
To fulfill their interrelated constitutional duties of equal protection and respecting environmental rights, all government actors, from courts to legislators and regulators, will have to prioritize protecting the most vulnerable from pollution, degradation, and climate change, and ensuring that environmental burdens are not heaped on already overburdened communities.
As such, this amendment is a momentous step forward for environmental justice.
It provides a context and platform for raising disparate health and environmental outcomes associated with governmental decisions about polluting activities, and for challenging unequal protection under, or enforcement of existing law.
It also requires a rethinking of public participation to ensure that those most affected by environmental decisions have a genuine opportunity for meaningful participation in a decision-making process that takes their environmental rights seriously.
What will this amendment mean in practice?
The challenge will be turning law on the books into change in the world and ensuring that this constitutional change marks the end of business as usual for polluters.
If we are successful, Section 19 will mark the beginning of a new era in which human wellbeing and planetary health are the priorities.
Nearly a century ago, in New Jersey v. City of New York, the United States Supreme Court explicitly found that issuance of a permit could not prevent a court from enjoining conduct that created an environmental nuisance.
Much the same way that a permit is not a defense to a claim sounding in nuisance, a permit will similarly not insulate ongoing conduct from constitutional scrutiny.
Article 19 thus opens a pathway for reconsidering past governmental decisions that unduly discounted environmental concerns or did not fully value environmental rights.
New York now has both the authority and the duty to ensure that environmental rights are respected.
For that to happen, behaviors must change in all branches of government.
Executive Branch
The New York Constitution tasks the Governor with the duty to “take care that the law be faithfully executed.”
Article 1, Section 19, now provides a constitutional foundation for all New York’s laws affecting the environment.
To faithfully execute the environmental amendments, the state must issue new environmental guidance for interpreting existing law and regulation and will need to enact new regulations designed to promote, protect, and defend environmental rights.
The state has an unambiguous mandate to protect New Yorkers’ right to breathe clean air, drink clean water, and live and work in a healthy environment.
Everyone exercising governmental authority, including agencies and local government, has an obligation to protect environmental rights, to promote actions designed to preserve and enhance these rights, and to take affirmative steps to provide a healthy environment to all New Yorkers, including intervening when these rights are jeopardized.
Protecting clean air and water must shape how all state law is interpreted and applied.
State actors will have new grounds to justify more rigorous enforcement or to defend state environmental legislation from attack by polluting industry.
Section 19 also gives states more flexibility to act in response to emerging environmental threats that might not yet be subject to regulation.
This will be particularly useful when responding to threats posed by new chemical compounds.
For example, had this constitutional amendment been in place earlier, it would have given New York clear grounds to take actions in Hoosick Falls to remedy PFAS water contamination once it became clear that the pollution was negatively impacting environmental rights.
New York would not have to wait for regulations specifically targeting a particular chemical before holding polluters responsible.
Perhaps the most sweeping changes will be in how governmental actors conduct environmental impact assessments and/or consider environmental costs and benefits in decision-making.
State actors will need to ensure that their decisions (vis-à-vis e.g. siting, transportation, development, and permitting) fully respect environmental rights.
Section 19 necessitates that agencies and local planning boards strike a new balance when environmental rights and property rights (or economic development proposals) conflict.
Where DEC previously interpreted SEQRA to allow permit denials “if the adverse environmental impacts cannot be favorably balanced against social and economic considerations,” this amendment now puts a thumb on the scale for protecting the environment.
Section 19 will greatly expand the range of people able to establish standing to bring challenges to government decisions about the environment.
Because litigants can now allege that their fundamental constitutional rights have been violated, Section 19 will make it easier to challenge government actions with negative environmental impacts.
In particular, the new amendment will facilitate new environmental justice challenges — allowing overburdened communities to allege that governmental action (or inaction in the case of failure to enforce permits) unduly infringes on environmental rights.
Under Section 19, a court will have to satisfy itself that a challenged government action adequately protects and respects environmental rights.
Where that is not the case, courts can impose the full panoply of equitable remedies that might be needed to ensure that environmental rights are honored.
Section 19 will also change the way that courts evaluate the adequacy of governmental decision-making processes by which environmental choices are made.
As the United States Supreme Court explained in Cleveland Board of Ed v. Loudermill, the state definition of fundamental rights like property or liberty give rise to constitutional due process requirements.
Once a state creates such an interest (and there is no better way to create than via constitutional amendment), no one can be deprived of their liberty/property interest without due process of law, nor can it be taken without just compensation.
New York must treat environmental rights akin to property rights — deprivation of which can happen only after due process and with just compensation.
This principle should serve as a guide to agencies in interpreting their duties under the myriad state laws and regulations.
The Legislature
As the clearly expressed will of the people vis-à-vis environmental rights, Section 19 will both constrain and guide legislative action.
The amendment provides a floor below which environmental protections cannot sink, and all laws will have to take account of that environmental floor.
This will be true for existing law, which may have to be amended to bring it into harmony with Section 19.
Going forward, Section 19 offers important guidance to New York’s legislature as it debates a wide range of new legislation across a host of topics including eliminating structural racism, criminal justice reform, public education, transportation and energy needs, housing and development, and climate change.
Environmental equity provisions like those built into the Climate Leadership and Community Protection Act will become the standard for how to move forward with legislation that affects and concerns the environment.
Rebecca Bratspies
New York
On The Nature of Cities
About the Writer:
Rebecca Bratspies is a Professor of Law at the CUNY School of Law where she is the founding director of the CUNY Center for Urban Environmental Reform. She has published widely on regulating under conditions of uncertainty. Her recent scholarship focuses on questions of sustainability and on the intersection of human rights and environmental regulation.
https://www.thenatureofcities.com/2022/ ... 20infringe.
THE PAUL PLANTE STORY
Re: THE PAUL PLANTE STORY
26 AUGUST 2022
The Honorable Kathy Hochul
Governor of New York State
NYS State Capitol Building
Albany, NY 12224
RE: NYS Const. Art. I §19 is a joke
Dear Governor Hochul:
ABSENT REFORM OF NYSDEC, THE “GREEN AMENDMENT” IS A JOKE
In an article in the Albany Times Union titled "Commentary: The promise and potential of New York’s Green Amendment" by Katrina Fischer Kuh, the Haub Distinguished Professor of Law at the Elisabeth Haub School of Law at Pace University, and Nicholas A. Robinson, a professor of law and professor on the environment at the Elisabeth Haub School of Law at Pace University on February 21, 2022, we, the people, were informed as follows:
It has been too easy to miss New York’s signature human rights success: By a margin of 2 to 1, voters in November 2020 amended their state constitutional Bill of Rights to ensure that “Each Person shall have a right to clean air and water, and a healthful environment.”
end quote
It has been easy to miss because in reality, to the common man or woman, it was a non-event.
Other than some new words in the Bill of Rights of the New York State Constitution, the common citizens of this state gained nothing at all from that amendment, as can clearly be seen in this open letter by myself to the editor of the Advertiser titled "Another Worthless Constitutional Amendment" on January 27, 2022, to wit:
On January 1, 2022, by vote of the people in November of 2020, we have a new § 19 to Article I of the New York Constitution, the so-called “Bill of Rights,” although it is much more a bill of goods, because it is unenforceable against the state, the abuses of which it is supposed to protect us from, but doesn’t because it can’t.
The new § 19 states that “(E)ach person shall have a right to clean air and water, and to a healthful environment,” but what exactly does that mean, given we in Poestenkill do not have any of that?
And the answer is it means nothing, because there is no way to make it mean anything.
When we cannot compel enforcement in a court of law, there is no law, just empty words pretending to be such, which is the case with § 19 to Article I of the New York Constitution.
As to our right to clean water and a healthful environment, we already have §3 of Article XVII of the New York State Constitution, titled Social Welfare, wherein is stated “(T)he protection and promotion of the health of the inhabitants of the state are matters of public concern and provision therefor shall be made by the state and by such of its subdivisions and in such manner, and by such means as the legislature shall from time to time determine,” adopted by the Constitutional Convention of 1938 from which came the NYS Public Health Law and state Sanitary Code to protect our drinking water, and here we are 84 years later in Poestenkill with water not fit to drink or to water hogs with.
And there is § 4 of Article XIV of the New York State Constitution, titled, “Conservation,” approved by vote of the people November 4, 1969, wherein is stated “(T)he policy of the state shall be to conserve and protect its natural resources,” and “(T)he legislature, in implementing this policy, shall include adequate provision for the abatement of air and water pollution and ….. the development and regulation of water resources.”
And 53 years later?
PFAS polluted water!
end quotes
As to what would be needed to really make the “green amendment” actually mean something to make it relevant to the lives of the common people, who get no equal protection of law from the Bill of Rights of the New York State Constitution, an essay titled “This Changes Everything: New York’s Environmental Amendment” by Rebecca Bratspies, a Professor of Law at the CUNY School of Law where she is the founding director of the CUNY Center for Urban Environmental Reform whose recent scholarship focuses on questions of sustainability and on the intersection of human rights and environmental regulation on 25 February 2022, provides us with some guidance with which to answer that question, to wit:
The challenge will be turning law on the books into change in the world and ensuring that this constitutional change marks the end of business as usual for polluters.
If we are successful, Section 19 will mark the beginning of a new era in which human wellbeing and planetary health are the priorities.
New York now has both the authority and the duty to ensure that environmental rights are respected.
For that to happen, behaviors must change in all branches of government.
end quote
And as we are seeing with your direct intervention in this PFAS investigation in Poestenkill to whitewash NYSDEC negligence with your May 2022 NYSDEC publication titled “Poestenkill PFAS Investigation - Nearby Property Investigations Work Plan, (SPILL NO. 2105197), Poestenkill, NY, behaviors in the executive branch have not changed at all, nor do we expect them to, given that this would strip the executive of a good deal of political power and patronage that accrue to the executive by virtue of having absolute control over the NYSDEC through its commissioner, who lives and breathes to adulate you and to give you pleasure, as we saw with NYSDEC Commissioner Joe Martens touting Andy Cuomo in a DEC press release entitled “Commissioner J. Martens Remarks – Business Council of the State of New York – Spring Environment Conference -April 30, 2014, where we had Joe Martens stating on the record that “DEC and the Business Council have a long history of collaboration and I'd like to think our working relationship is as good now as it has ever been,” and Basil Seggos touting Andy Cuomo in a press release from the governor’s office entitled "Governor Cuomo Announces Administration Appointments," where the appointment of Basil Seggos as the governor's Deputy Secretary for the Environment was announced, after Basil Seggos had been the governor's Assistant Secretary for the Environment since February 2012, stating in that press release, "Governor Cuomo understands that a healthy environment depends on a healthy economy,” and Basil touting Andy again in a Times Union article titled "Cuomo taps close aide for new DEC chief - Governor chooses his chief environmental adviser; selection now goes before Senate" by Brian Nearing on October 2, 2015 where as part of the statement from Cuomo's office, Basil said the governor has "one of the strongest environmental records in the nation, doing so while returning the state to a prosperous economic path ...." and "I look forward to building on this record," and touting yourself in a DEC Press Release titled “DEC Commissioner Seggos Announces New Leadership Appointments” on 5 January 2022 where Basil Seggos stated "With Governor Kathy Hochul's leadership and a strong team at DEC, we will work together to safeguard New York's environment from challenges both new and known and further advance our efforts to mitigate climate change."
Thus, in that press release, Basil Seggos made it patently clear that it is you who are in charge of the DEC, and so long as you continue to treat the “green amendment” for what it is, a publicity stunt, that is all it will continue to be, which takes us back to the article in the Times Union titled titled "Commentary: The promise and potential of New York’s Green Amendment" by Katrina Fischer Kuh, the Haub Distinguished Professor of Law at the Elisabeth Haub School of Law at Pace University, and Nicholas A. Robinson, a professor of law and professor on the environment at the Elisabeth Haub School of Law at Pace University on February 21, 2022, as follows:
The people, by their ballots, decided that our birthrights to breathe, to have potable water and to enjoy a healthful environment all deserve the most powerful legal protection our state can afford, a home in Article 1 of the constitution, the Bill of Rights.
end quotes
Except the flawed language of the “green amendment” does not say “potable water,” which term means water that is safe to drink – the flawed language of the “green amendment” says “clean water,” and nowhere in the laws or codes of New York State is “clean water” anywhere defined, so what is it?
When someone goes before a judge and demands “clean” water, what is it they are demanding?
And since it is an undefined term, how will a judge know what they are demanding?
Thus, the language of the “green amendment” with regard to “clean water” is simply stupid, especially if one were to try to argue that the right to clean water pursuant to section 19 to Article I of the state Constitution derives from New York Environmental Conservation Law § 1-0101(1), wherein is provided that "(T)he quality of our environment is fundamental to our concern for the quality of life," and "(I)t is hereby declared to be the policy of the State of New York to conserve, improve and protect its natural resources and environment and 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."
One could try to argue that New York State Environmental Conservation Law § 3-0301(1), wherein is provided that "(I)t shall be the responsibility of the department, in accordance with such existing provisions and limitations as may be elsewhere set forth in law, by and through the commissioner to carry out the environmental policy of the state set forth in section 1-0101 of this chapter," places a duty on the DEC to provide everybody with “clean” water, and were they to try that approach, their approach would easily be slapped down by the Attorney general by pointing to the statutory language of New York State Environmental Conservation Law § 3-0301(1)(i), wherein is provided that in carrying out the environmental policy of the state set forth in section 1-0101 of this chapter, the commissioner shall have power to "(P)rovide for prevention and abatement of all water, land and air pollution including, but not limited to, that related to hazardous substances, particulates, gases, dust, vapors, noise, radiation, odor, nutrients and heated liquids."
The statutory term “shall have power to,” of course, grants the DEC Commissioner complete and total discretion to simply ignore the law, and there is absolutely nothing a judge can do about that.
So where then does the “right” to “clean water” come from, other than the thinnest of thin air?
Going back to the article in the Times Union titled titled "Commentary: The promise and potential of New York’s Green Amendment" by Katrina Fischer Kuh, the Haub Distinguished Professor of Law at the Elisabeth Haub School of Law at Pace University, and Nicholas A. Robinson, a professor of law and professor on the environment at the Elisabeth Haub School of Law at Pace University on February 21, 2022, it continues as follows:
New Yorkers have yet to explore how their human right to the environment can best protect each person in the coming perilous times.
The legal meaning of New York’s environmental rights is the province of our judiciary and Court of Appeals, when persons claim denials of their rights.
However, the command to respect and implement New York’s environmental rights is immediate and rests with the governor, and every other official in New York.
end quotes
And as we are seeing with respect to this Poestenkill situation, where the efforts of the NYSDEC and your office, as was the case with the removal of the Niagara Mohawk dam on the Hudson River in Fort Edward, are put into protecting itself and the alleged polluter, there is where it all breaks down, precisely because you are not trustworthy with respect to any environmental rights we might have.
Going back to the article in the Times Union titled titled "Commentary: The promise and potential of New York’s Green Amendment" by Katrina Fischer Kuh, the Haub Distinguished Professor of Law at the Elisabeth Haub School of Law at Pace University, and Nicholas A. Robinson, a professor of law and professor on the environment at the Elisabeth Haub School of Law at Pace University on February 21, 2022, it again continues as follows:
These environmental human rights are universal norms, guiding all government officials.
Ultimately, all persons hold these rights to the environment.
Each New Yorker today enjoys inalienable and fundamental environmental rights.
Government officials are duty bound to breathe life into this newly minted legal bulwark for ensuring clean air, water and a healthful environment.
end quotes
Duty bound?
Not hardly!
That’s a joke.
Sincerely,
Paul R. Plante, NYSPE
The Honorable Kathy Hochul
Governor of New York State
NYS State Capitol Building
Albany, NY 12224
RE: NYS Const. Art. I §19 is a joke
Dear Governor Hochul:
ABSENT REFORM OF NYSDEC, THE “GREEN AMENDMENT” IS A JOKE
In an article in the Albany Times Union titled "Commentary: The promise and potential of New York’s Green Amendment" by Katrina Fischer Kuh, the Haub Distinguished Professor of Law at the Elisabeth Haub School of Law at Pace University, and Nicholas A. Robinson, a professor of law and professor on the environment at the Elisabeth Haub School of Law at Pace University on February 21, 2022, we, the people, were informed as follows:
It has been too easy to miss New York’s signature human rights success: By a margin of 2 to 1, voters in November 2020 amended their state constitutional Bill of Rights to ensure that “Each Person shall have a right to clean air and water, and a healthful environment.”
end quote
It has been easy to miss because in reality, to the common man or woman, it was a non-event.
Other than some new words in the Bill of Rights of the New York State Constitution, the common citizens of this state gained nothing at all from that amendment, as can clearly be seen in this open letter by myself to the editor of the Advertiser titled "Another Worthless Constitutional Amendment" on January 27, 2022, to wit:
On January 1, 2022, by vote of the people in November of 2020, we have a new § 19 to Article I of the New York Constitution, the so-called “Bill of Rights,” although it is much more a bill of goods, because it is unenforceable against the state, the abuses of which it is supposed to protect us from, but doesn’t because it can’t.
The new § 19 states that “(E)ach person shall have a right to clean air and water, and to a healthful environment,” but what exactly does that mean, given we in Poestenkill do not have any of that?
And the answer is it means nothing, because there is no way to make it mean anything.
When we cannot compel enforcement in a court of law, there is no law, just empty words pretending to be such, which is the case with § 19 to Article I of the New York Constitution.
As to our right to clean water and a healthful environment, we already have §3 of Article XVII of the New York State Constitution, titled Social Welfare, wherein is stated “(T)he protection and promotion of the health of the inhabitants of the state are matters of public concern and provision therefor shall be made by the state and by such of its subdivisions and in such manner, and by such means as the legislature shall from time to time determine,” adopted by the Constitutional Convention of 1938 from which came the NYS Public Health Law and state Sanitary Code to protect our drinking water, and here we are 84 years later in Poestenkill with water not fit to drink or to water hogs with.
And there is § 4 of Article XIV of the New York State Constitution, titled, “Conservation,” approved by vote of the people November 4, 1969, wherein is stated “(T)he policy of the state shall be to conserve and protect its natural resources,” and “(T)he legislature, in implementing this policy, shall include adequate provision for the abatement of air and water pollution and ….. the development and regulation of water resources.”
And 53 years later?
PFAS polluted water!
end quotes
As to what would be needed to really make the “green amendment” actually mean something to make it relevant to the lives of the common people, who get no equal protection of law from the Bill of Rights of the New York State Constitution, an essay titled “This Changes Everything: New York’s Environmental Amendment” by Rebecca Bratspies, a Professor of Law at the CUNY School of Law where she is the founding director of the CUNY Center for Urban Environmental Reform whose recent scholarship focuses on questions of sustainability and on the intersection of human rights and environmental regulation on 25 February 2022, provides us with some guidance with which to answer that question, to wit:
The challenge will be turning law on the books into change in the world and ensuring that this constitutional change marks the end of business as usual for polluters.
If we are successful, Section 19 will mark the beginning of a new era in which human wellbeing and planetary health are the priorities.
New York now has both the authority and the duty to ensure that environmental rights are respected.
For that to happen, behaviors must change in all branches of government.
end quote
And as we are seeing with your direct intervention in this PFAS investigation in Poestenkill to whitewash NYSDEC negligence with your May 2022 NYSDEC publication titled “Poestenkill PFAS Investigation - Nearby Property Investigations Work Plan, (SPILL NO. 2105197), Poestenkill, NY, behaviors in the executive branch have not changed at all, nor do we expect them to, given that this would strip the executive of a good deal of political power and patronage that accrue to the executive by virtue of having absolute control over the NYSDEC through its commissioner, who lives and breathes to adulate you and to give you pleasure, as we saw with NYSDEC Commissioner Joe Martens touting Andy Cuomo in a DEC press release entitled “Commissioner J. Martens Remarks – Business Council of the State of New York – Spring Environment Conference -April 30, 2014, where we had Joe Martens stating on the record that “DEC and the Business Council have a long history of collaboration and I'd like to think our working relationship is as good now as it has ever been,” and Basil Seggos touting Andy Cuomo in a press release from the governor’s office entitled "Governor Cuomo Announces Administration Appointments," where the appointment of Basil Seggos as the governor's Deputy Secretary for the Environment was announced, after Basil Seggos had been the governor's Assistant Secretary for the Environment since February 2012, stating in that press release, "Governor Cuomo understands that a healthy environment depends on a healthy economy,” and Basil touting Andy again in a Times Union article titled "Cuomo taps close aide for new DEC chief - Governor chooses his chief environmental adviser; selection now goes before Senate" by Brian Nearing on October 2, 2015 where as part of the statement from Cuomo's office, Basil said the governor has "one of the strongest environmental records in the nation, doing so while returning the state to a prosperous economic path ...." and "I look forward to building on this record," and touting yourself in a DEC Press Release titled “DEC Commissioner Seggos Announces New Leadership Appointments” on 5 January 2022 where Basil Seggos stated "With Governor Kathy Hochul's leadership and a strong team at DEC, we will work together to safeguard New York's environment from challenges both new and known and further advance our efforts to mitigate climate change."
Thus, in that press release, Basil Seggos made it patently clear that it is you who are in charge of the DEC, and so long as you continue to treat the “green amendment” for what it is, a publicity stunt, that is all it will continue to be, which takes us back to the article in the Times Union titled titled "Commentary: The promise and potential of New York’s Green Amendment" by Katrina Fischer Kuh, the Haub Distinguished Professor of Law at the Elisabeth Haub School of Law at Pace University, and Nicholas A. Robinson, a professor of law and professor on the environment at the Elisabeth Haub School of Law at Pace University on February 21, 2022, as follows:
The people, by their ballots, decided that our birthrights to breathe, to have potable water and to enjoy a healthful environment all deserve the most powerful legal protection our state can afford, a home in Article 1 of the constitution, the Bill of Rights.
end quotes
Except the flawed language of the “green amendment” does not say “potable water,” which term means water that is safe to drink – the flawed language of the “green amendment” says “clean water,” and nowhere in the laws or codes of New York State is “clean water” anywhere defined, so what is it?
When someone goes before a judge and demands “clean” water, what is it they are demanding?
And since it is an undefined term, how will a judge know what they are demanding?
Thus, the language of the “green amendment” with regard to “clean water” is simply stupid, especially if one were to try to argue that the right to clean water pursuant to section 19 to Article I of the state Constitution derives from New York Environmental Conservation Law § 1-0101(1), wherein is provided that "(T)he quality of our environment is fundamental to our concern for the quality of life," and "(I)t is hereby declared to be the policy of the State of New York to conserve, improve and protect its natural resources and environment and 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."
One could try to argue that New York State Environmental Conservation Law § 3-0301(1), wherein is provided that "(I)t shall be the responsibility of the department, in accordance with such existing provisions and limitations as may be elsewhere set forth in law, by and through the commissioner to carry out the environmental policy of the state set forth in section 1-0101 of this chapter," places a duty on the DEC to provide everybody with “clean” water, and were they to try that approach, their approach would easily be slapped down by the Attorney general by pointing to the statutory language of New York State Environmental Conservation Law § 3-0301(1)(i), wherein is provided that in carrying out the environmental policy of the state set forth in section 1-0101 of this chapter, the commissioner shall have power to "(P)rovide for prevention and abatement of all water, land and air pollution including, but not limited to, that related to hazardous substances, particulates, gases, dust, vapors, noise, radiation, odor, nutrients and heated liquids."
The statutory term “shall have power to,” of course, grants the DEC Commissioner complete and total discretion to simply ignore the law, and there is absolutely nothing a judge can do about that.
So where then does the “right” to “clean water” come from, other than the thinnest of thin air?
Going back to the article in the Times Union titled titled "Commentary: The promise and potential of New York’s Green Amendment" by Katrina Fischer Kuh, the Haub Distinguished Professor of Law at the Elisabeth Haub School of Law at Pace University, and Nicholas A. Robinson, a professor of law and professor on the environment at the Elisabeth Haub School of Law at Pace University on February 21, 2022, it continues as follows:
New Yorkers have yet to explore how their human right to the environment can best protect each person in the coming perilous times.
The legal meaning of New York’s environmental rights is the province of our judiciary and Court of Appeals, when persons claim denials of their rights.
However, the command to respect and implement New York’s environmental rights is immediate and rests with the governor, and every other official in New York.
end quotes
And as we are seeing with respect to this Poestenkill situation, where the efforts of the NYSDEC and your office, as was the case with the removal of the Niagara Mohawk dam on the Hudson River in Fort Edward, are put into protecting itself and the alleged polluter, there is where it all breaks down, precisely because you are not trustworthy with respect to any environmental rights we might have.
Going back to the article in the Times Union titled titled "Commentary: The promise and potential of New York’s Green Amendment" by Katrina Fischer Kuh, the Haub Distinguished Professor of Law at the Elisabeth Haub School of Law at Pace University, and Nicholas A. Robinson, a professor of law and professor on the environment at the Elisabeth Haub School of Law at Pace University on February 21, 2022, it again continues as follows:
These environmental human rights are universal norms, guiding all government officials.
Ultimately, all persons hold these rights to the environment.
Each New Yorker today enjoys inalienable and fundamental environmental rights.
Government officials are duty bound to breathe life into this newly minted legal bulwark for ensuring clean air, water and a healthful environment.
end quotes
Duty bound?
Not hardly!
That’s a joke.
Sincerely,
Paul R. Plante, NYSPE
Re: THE PAUL PLANTE STORY
"Congress to probe Hoosick Falls water crisis - House Committee asks Cuomo and EPA for documents on water pollution"
Brendan J. Lyons, Albany, New York Times Union
Updated: July 8, 2016
A U.S. congressional committee has launched an investigation into the state and federal governments' handling of the widespread contamination of public and private water supplies in Hoosick Falls and other areas of eastern Rensselaer County.
The U.S. House Committee on Oversight and Government Reform sent letters Wednesday to Gov. Andrew Cuomo and the U.S. Environmental Protection Agency demanding documents for the pending congressional probe into the water pollution.
The House committee's investigation cites Times Union articles and other news reports indicating that officials at all levels of government, including the state and Rensselaer County Health departments, as well as the EPA, were aware for more than a year that a hazardous chemical, PFOA, had polluted the village's water system but did not warn residents to stop drinking the water.
The EPA was informed of the water pollution in December 2014, according to emails previously obtained by the Times Union.
In December 2015, EPA Regional Administrator Judith Enck sent a letter to Hoosick Falls Mayor David Borge directing him to stop telling residents it was a "personal choice" whether to drink the contaminated water.
Borge has said he was relying on advice from the state Health Department, which had issued "fact sheets" to residents that month stating no adverse health effects were expected from normal use of the village's water.
The state Health Department took its controversial position on the water's safety despite a widely reported health study that linked the PFOA in the village's water to kidney cancer and other diseases.
The EPA issued an advisory in 2009 warning that short-term exposure to water containing PFOA is not safe at levels above 400 parts per trillion.
The village's water system recorded levels at more than 600 ppt in August 2014.
"It raises serious questions that the county and state would continue to assure residents the water was safe to drink even though the federal government had already warned residents to the contrary," the House committee wrote in its letter to Cuomo.
"The Committee is seeking information as to why the state and county delayed in acknowledging the health risks of PFOA exposure in Hoosick Falls and continued to provide the public with false and confusing information."
U.S. Rep. Chris Gibson, R-Kinderhook, has pushed for months for the House committee's leadership to investigate and potentially hold congressional hearings on the situation in Hoosick Falls and Petersburgh, where PFOA also contaminated public and private water supplies.
U.S. Sens. Kirsten Gillibrand and Charles E. Schumer, both Democrats, supported Gibson's calls for a federal investigation.
"I am very pleased that they have finally done this, but this has been a long engagement," Gibson said Thursday.
"We need answers on this and right now, as it relates to the situation in Hoosick Falls and Petersburgh."
"We're playing defense."
Gibson was referring to efforts by the state and local officials to provide filtered and alternate water supplies to residents in the affected communities.
The state has conducted blood sampling that found many residents have elevated levels of PFOA.
"We need to learn what happened and not repeat it and this is why we need the hearings," Gibson said.
"They and the rest of the country deserve answers as to what happened."
Officials with the EPA's Region 2, which includes New York, New Jersey, Puerto Rico and the U.S. Virgin Islands, declined to comment on the congressional inquiry.
They also declined to clarify when Enck, the EPA's Region 2 administrator, learned of the situation in Hoosick Falls.
The Times Union has reported that Enck learned of the crisis last fall.
But emails indicate that Rensselaer County health officials consulted with Arlene Anderson, a supervisor in the Region 2 office, in December 2014.
Anderson works in the agency's Drinking Water and Ground Water Protection Section.
The Times Union reported in February the state Health Department was made aware in August 2014 that the toxic chemical had contaminated Hoosick Falls' village water system, but conflicting information and a lack of regulations led to months of delays in notifying the public about the situation, documents show.
In a statement Thursday, Cuomo spokesman James Allen said, "States across the country have struggled to confront evolving information about PFOA and other emerging contaminants, particularly in the face of shifting guidelines and the absence of regulation from the federal government."
"We will gladly share our experience in New York to clarify the facts and the steps we have taken to address these challenges.
"We hope the end result is that Congress and the federal government act swiftly to prioritize and to implement uniform, nationwide regulations of PFOA and similar, currently unregulated contaminants," Allen said.
"No town, city or state should have to fear the water they are drinking."
"With clear federal regulations, we can achieve that goal."
After the congressional letters were sent Wednesday, the state Assembly's Democratic majority announced it would hold hearings on the state's public water pollution, including the situation in Hoosick Falls and Petersburgh.
The Assembly's announcement came after state elected leaders, including state Sen. Kathy Marchione, R-Halfmoon, whose district includes Hoosick Falls, said hearings to determine whether the state mishandled the water-pollution crisis were not necessary.
The investigation by Congress comes at a time when the EPA has been under fire for its handling of environmental pollution, including the water crisis in Flint, Mich.
The House committee's letter was addressed to EPA Administrator Gina McCarthy.
"Documents and public statements about the crisis in Hoosick Falls show EPA knew that the village water supply was contaminated in December 2014, but did not take any action until nearly one year later, in November 2015," the House committee's letter states.
"The fact that EPA staff at the agency's headquarters in Washington, D.C., knew or should have known about the problem, and failed to communicate with their counterparts in Region 2, raises serious questions, considering the health and safety of the residents of Hoosick Falls was at stake."
The state's awareness of the contamination dates back years.
In February, the Times Union reported that Taconic, a plastics company in Petersburgh, alerted the state Department of Environmental Conservation in 2005 about its discovery of the toxic chemical in the groundwater around its plant on Route 22.
The state and county began distributing water to residents in that community on Feb. 13, the day the Times Union reported that state regulators and officials with a Petersburgh plastics company were discussing how to address the PFOA contamination of water around the Route 22 plant.
State officials said environmental laws and regulations in 2005 did not require any public notification or additional investigation.
PFOA is a toxic chemical that has been used since the 1940s to make industrial and household products such as nonstick coatings, specialty tapes and heat-resistant wiring.
Several specialty manufacturing plants in eastern Rensselaer County and North Bennington, Vt., used the chemical for decades before studies emerged 10 years ago linking the substance to cancer and other serious diseases.
blyons@timesunion.com • 518-454-5547 • @brendan_lyonstu
https://www.timesunion.com/local/articl ... 345384.php
Brendan J. Lyons, Albany, New York Times Union
Updated: July 8, 2016
A U.S. congressional committee has launched an investigation into the state and federal governments' handling of the widespread contamination of public and private water supplies in Hoosick Falls and other areas of eastern Rensselaer County.
The U.S. House Committee on Oversight and Government Reform sent letters Wednesday to Gov. Andrew Cuomo and the U.S. Environmental Protection Agency demanding documents for the pending congressional probe into the water pollution.
The House committee's investigation cites Times Union articles and other news reports indicating that officials at all levels of government, including the state and Rensselaer County Health departments, as well as the EPA, were aware for more than a year that a hazardous chemical, PFOA, had polluted the village's water system but did not warn residents to stop drinking the water.
The EPA was informed of the water pollution in December 2014, according to emails previously obtained by the Times Union.
In December 2015, EPA Regional Administrator Judith Enck sent a letter to Hoosick Falls Mayor David Borge directing him to stop telling residents it was a "personal choice" whether to drink the contaminated water.
Borge has said he was relying on advice from the state Health Department, which had issued "fact sheets" to residents that month stating no adverse health effects were expected from normal use of the village's water.
The state Health Department took its controversial position on the water's safety despite a widely reported health study that linked the PFOA in the village's water to kidney cancer and other diseases.
The EPA issued an advisory in 2009 warning that short-term exposure to water containing PFOA is not safe at levels above 400 parts per trillion.
The village's water system recorded levels at more than 600 ppt in August 2014.
"It raises serious questions that the county and state would continue to assure residents the water was safe to drink even though the federal government had already warned residents to the contrary," the House committee wrote in its letter to Cuomo.
"The Committee is seeking information as to why the state and county delayed in acknowledging the health risks of PFOA exposure in Hoosick Falls and continued to provide the public with false and confusing information."
U.S. Rep. Chris Gibson, R-Kinderhook, has pushed for months for the House committee's leadership to investigate and potentially hold congressional hearings on the situation in Hoosick Falls and Petersburgh, where PFOA also contaminated public and private water supplies.
U.S. Sens. Kirsten Gillibrand and Charles E. Schumer, both Democrats, supported Gibson's calls for a federal investigation.
"I am very pleased that they have finally done this, but this has been a long engagement," Gibson said Thursday.
"We need answers on this and right now, as it relates to the situation in Hoosick Falls and Petersburgh."
"We're playing defense."
Gibson was referring to efforts by the state and local officials to provide filtered and alternate water supplies to residents in the affected communities.
The state has conducted blood sampling that found many residents have elevated levels of PFOA.
"We need to learn what happened and not repeat it and this is why we need the hearings," Gibson said.
"They and the rest of the country deserve answers as to what happened."
Officials with the EPA's Region 2, which includes New York, New Jersey, Puerto Rico and the U.S. Virgin Islands, declined to comment on the congressional inquiry.
They also declined to clarify when Enck, the EPA's Region 2 administrator, learned of the situation in Hoosick Falls.
The Times Union has reported that Enck learned of the crisis last fall.
But emails indicate that Rensselaer County health officials consulted with Arlene Anderson, a supervisor in the Region 2 office, in December 2014.
Anderson works in the agency's Drinking Water and Ground Water Protection Section.
The Times Union reported in February the state Health Department was made aware in August 2014 that the toxic chemical had contaminated Hoosick Falls' village water system, but conflicting information and a lack of regulations led to months of delays in notifying the public about the situation, documents show.
In a statement Thursday, Cuomo spokesman James Allen said, "States across the country have struggled to confront evolving information about PFOA and other emerging contaminants, particularly in the face of shifting guidelines and the absence of regulation from the federal government."
"We will gladly share our experience in New York to clarify the facts and the steps we have taken to address these challenges.
"We hope the end result is that Congress and the federal government act swiftly to prioritize and to implement uniform, nationwide regulations of PFOA and similar, currently unregulated contaminants," Allen said.
"No town, city or state should have to fear the water they are drinking."
"With clear federal regulations, we can achieve that goal."
After the congressional letters were sent Wednesday, the state Assembly's Democratic majority announced it would hold hearings on the state's public water pollution, including the situation in Hoosick Falls and Petersburgh.
The Assembly's announcement came after state elected leaders, including state Sen. Kathy Marchione, R-Halfmoon, whose district includes Hoosick Falls, said hearings to determine whether the state mishandled the water-pollution crisis were not necessary.
The investigation by Congress comes at a time when the EPA has been under fire for its handling of environmental pollution, including the water crisis in Flint, Mich.
The House committee's letter was addressed to EPA Administrator Gina McCarthy.
"Documents and public statements about the crisis in Hoosick Falls show EPA knew that the village water supply was contaminated in December 2014, but did not take any action until nearly one year later, in November 2015," the House committee's letter states.
"The fact that EPA staff at the agency's headquarters in Washington, D.C., knew or should have known about the problem, and failed to communicate with their counterparts in Region 2, raises serious questions, considering the health and safety of the residents of Hoosick Falls was at stake."
The state's awareness of the contamination dates back years.
In February, the Times Union reported that Taconic, a plastics company in Petersburgh, alerted the state Department of Environmental Conservation in 2005 about its discovery of the toxic chemical in the groundwater around its plant on Route 22.
The state and county began distributing water to residents in that community on Feb. 13, the day the Times Union reported that state regulators and officials with a Petersburgh plastics company were discussing how to address the PFOA contamination of water around the Route 22 plant.
State officials said environmental laws and regulations in 2005 did not require any public notification or additional investigation.
PFOA is a toxic chemical that has been used since the 1940s to make industrial and household products such as nonstick coatings, specialty tapes and heat-resistant wiring.
Several specialty manufacturing plants in eastern Rensselaer County and North Bennington, Vt., used the chemical for decades before studies emerged 10 years ago linking the substance to cancer and other serious diseases.
blyons@timesunion.com • 518-454-5547 • @brendan_lyonstu
https://www.timesunion.com/local/articl ... 345384.php
Re: THE PAUL PLANTE STORY
29 AUGUST 2022
The Honorable Kathy Hochul
Governor of New York State
NYS State Capitol Building
Albany, NY 12224
RE: NYS Const. Art. I §19 is a joke
Dear Governor Hochul:
ABSENT REFORM OF GOVERNOR’S OFFICE, NYS CONST. ART. I §19 IS A JOKE
With respect to the hype fed to the people of the state of New York by proponents of the “green amendment,” they being environmentalists, Democrats, major union groups like the AFL-CIO and some Republicans, in an article in the Albany Times Union titled "Commentary: The promise and potential of New York’s Green Amendment" by Katrina Fischer Kuh, the Haub Distinguished Professor of Law at the Elisabeth Haub School of Law at Pace University, and Nicholas A. Robinson, a professor of law and professor on the environment at the Elisabeth Haub School of Law at Pace University on February 21, 2022, we, the people, were informed as follows:
New York’s Bill of Rights today extends a tradition, begun with the Magna Carta in 1215, guaranteeing the protection of law to each person.
end quotes
And actually, that is not true.
What Magna Carta, which means 'The Great Charter', one of the most important documents in history, established is the principle that everyone is subject to the law, even the king.
As the UK Parliament makes clear on its website on the subject, Magna Carta was issued in June 1215 and was the first document to put into writing the principle that the king and his government was not above the law.
It sought to prevent the king from exploiting his power, and placed limits of royal authority by establishing law as a power in itself.
The “green amendment,” by contrast, does not put into writing the principle that the governor of the state of New York and her government are not above the law, nor does it guarantee the rights of individuals, including the right to justice.
To the contrary, as was clearly stated in an essay titled “This Changes Everything: New York’s Environmental Amendment” by Rebecca Bratspies, a Professor of Law at the CUNY School of Law where she is the founding director of the CUNY Center for Urban Environmental Reform whose recent scholarship focuses on questions of sustainability and on the intersection of human rights and environmental regulation on 25 February 2022, the “green amendment” is a gift from heaven to the legal community as a new source of income, to wit:
State GOP Chairman Nick Langworthy recently launched a "Just Say No" statewide tour against ballot proposals, but the focus is on the election-related amendments, including redistricting.
"Everybody believes in clean air and clean water," Langworthy said.
"This is something that I believe is a dressed-up, aspirational amendment to the Constitution that is going to be nothing but a backdoor boondoggle for trial lawyers.”
end quotes
I can see the ads going up now for legal services related to getting justice for “dirty water” and “dirty air” claims, sign up now results guaranteed, as was the case in Hoosick Falls where according to a Talk Radio 1300 article titled "Opinion: T-Spin: The feds screwed up Hoosick Falls" by Jim Franco on February, “Lawyers are circling like buzzards looking to sign people up in a class action lawsuit, and politicians, of course, are grandstanding and pointing fingers,” as was the case when Erin Brockovich, a famed whistleblower and consumer advocate who works with Weitz & Luxenberg, zipped through Hoosick Falls in a one-day whirlwind tour to recruit lawsuit candidates, and then stated in a news release:
"Enough is enough."
"The negligent acts of these companies have resulted in a public health crisis."
"The last thing people should be worrying about is whether the water they give to their children is dangerous."
end quotes
As a lengthy analysis of the situation in a series of essays on the TALK 1300 site clearly demonstrated, however, just as was the case with GE Hudson Falls and the PCB’s, and Storonske Cooperage in Schodack and TCE in the drinking water from that fiasco, the negligence was clearly that of the NYSDEC and Rensselaer County Department of Health as a part of the state’s “business-friendly, turn your backs to protect the polluters” policy, which policy is still in effect in New York state and in fact, is in play right now in connection with the investigation of PFAS in Poestenkill where every effort is being made by the DEC and RCDOH to shield the likely polluter, the DEC-permitted and regulated Poestenkill transfer station at the intersection of state routes 66 and 351, on the high ground above the contaminated wellfield of the Algonquin School in Poestenkill.
The state of New York wanted business in Hoosick Falls and was willing to turn its back and look the other way with respect to environmental abuses to get them there and keep them there, so it was never a surprise that the water in Hoosick Falls was being contaminated.
As I demonstrated in that series of essays, the DEC and RCDOH had all the tools they ever would have needed to protect that water, and they made a conscious choice to not use them, and this “green amendment” does nothing at all to change that attitude or to compel adherence to the law as written, which in the case of the DEC would make no difference given the Environmental Conservation Law was written to be intentionally flawed so as to make it unenforceable, which takes us back to the essay titled “This Changes Everything: New York’s Environmental Amendment” by Rebecca Bratspies on 25 February 2022, where was stated as follows, to wit:
The New York Constitution tasks the Governor with the duty to “take care that the law be faithfully executed.”
end quote
Yes, indeed it does do that, which is fifth grade civics.
And when you do do that, faithfully execute New York State Environmental Conservation Law § 3-0103, you will faithfully execute it as Basil Seggos holding office at the pleasure of yourself, which is to say, he is your servant, not a servant of the people of the State of New York, and as your servant, he does what you tell him to do, and thus, he shares your immunity, and since his job is undefined other than that he is your personal servant, there is nothing a judge can order him to do because of separation of powers.
And when you faithfully execute New York State Environmental Conservation Law § 3-0301(1) wherein is provided that "(I)t shall be the responsibility of the department, in accordance with such existing provisions and limitations as may be elsewhere set forth in law, by and through the commissioner to carry out the environmental policy of the state set forth in section 1-0101 of this chapter," you will do so in light of the statutory language of New York State Environmental Conservation Law § 3-0301(1), where we find these further words, to wit: "In so doing, the commissioner shall have power to."
And as an accomplished and thoroughly knowledgeable attorney, you well know that those words in that statutory language "shall have power to" serve to make the so-called "responsibility of the department, in accordance with such existing provisions and limitations as may be elsewhere set forth in law, by and through the commissioner to carry out the environmental policy of the state set forth in section 1-0101 of this chapter," entirely optional and discretionary on the part of the Commissioner, who serves at the pleasure of the Governor pursuant to New York Environmental Conservation Law § 3-0103.
Thus, according to the manner in which the Legislature of the State of New York chose to word New York State Environmental Conservation Law § 3-0301(1), the statutory language New York State Environmental Conservation Law § 1-0101(1), wherein is provided "(I)t is hereby declared to be the policy of the State of New York to conserve, improve and protect its natural resources and environment and 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," is in actuality the merest hint of a suggestion and can be ignored at will by the "department, by and through the commissioner," which means that the Commissioner of the New York State Department of Environmental Conservation has complete freedom and discretion to totally ignore the policy of the State of New York to conserve, improve and protect its natural resources and environment and instead can allow water, land and air pollution, while totally ignoring the enhancement of the health, safety and welfare of the people of the state and their overall economic and social well being, which makes a hollow mockery out of the so-called “green amendment,” which was nothing more than a political publicity stunt.
An empty gesture.
And of great importance to this matter, given that licensed professional engineers are supposedly licensed to safeguard life, health and property, which should have made them a safeguard for the people with respect to the air people breathe, the water they drink, and the environment they must live in, when you faithfully execute New York State Education Law §7206(1)(1)(7), wherein is stated that to qualify for a license as a professional engineer an applicant shall be of “good moral character as determined by the department,” which is to say, good moral character as determined by the state of New York, you will faithfully execute that as to mean that “good moral character” for a licensed engineer in New York State is unquestioning and blind obedience to the dictates of political authority, which is to say, blind obedience to your will alone, which makes licensed professional engineers mere “rubber stamps,” which in turn makes a mockery of the concept of engineers in New York state supposedly being licensed to safeguard life, health and property when the reality is that they are there to serve the whims of the political branch of government blindly and without question.
Until that all changes, which is to say, until you as governor change all of that, there is going to be no change in New York state with respect to environmental protection, because there is no incentive to change what U.S. Attorney for the Southern District of New York Preet Bharara described in the April 23, 2013 Times Union as “a culture of corruption” in New York State that “has developed and grown, just like barnacles on a boat bottom.”
Sincerely,
Paul R. Plante, NYSPE
The Honorable Kathy Hochul
Governor of New York State
NYS State Capitol Building
Albany, NY 12224
RE: NYS Const. Art. I §19 is a joke
Dear Governor Hochul:
ABSENT REFORM OF GOVERNOR’S OFFICE, NYS CONST. ART. I §19 IS A JOKE
With respect to the hype fed to the people of the state of New York by proponents of the “green amendment,” they being environmentalists, Democrats, major union groups like the AFL-CIO and some Republicans, in an article in the Albany Times Union titled "Commentary: The promise and potential of New York’s Green Amendment" by Katrina Fischer Kuh, the Haub Distinguished Professor of Law at the Elisabeth Haub School of Law at Pace University, and Nicholas A. Robinson, a professor of law and professor on the environment at the Elisabeth Haub School of Law at Pace University on February 21, 2022, we, the people, were informed as follows:
New York’s Bill of Rights today extends a tradition, begun with the Magna Carta in 1215, guaranteeing the protection of law to each person.
end quotes
And actually, that is not true.
What Magna Carta, which means 'The Great Charter', one of the most important documents in history, established is the principle that everyone is subject to the law, even the king.
As the UK Parliament makes clear on its website on the subject, Magna Carta was issued in June 1215 and was the first document to put into writing the principle that the king and his government was not above the law.
It sought to prevent the king from exploiting his power, and placed limits of royal authority by establishing law as a power in itself.
The “green amendment,” by contrast, does not put into writing the principle that the governor of the state of New York and her government are not above the law, nor does it guarantee the rights of individuals, including the right to justice.
To the contrary, as was clearly stated in an essay titled “This Changes Everything: New York’s Environmental Amendment” by Rebecca Bratspies, a Professor of Law at the CUNY School of Law where she is the founding director of the CUNY Center for Urban Environmental Reform whose recent scholarship focuses on questions of sustainability and on the intersection of human rights and environmental regulation on 25 February 2022, the “green amendment” is a gift from heaven to the legal community as a new source of income, to wit:
State GOP Chairman Nick Langworthy recently launched a "Just Say No" statewide tour against ballot proposals, but the focus is on the election-related amendments, including redistricting.
"Everybody believes in clean air and clean water," Langworthy said.
"This is something that I believe is a dressed-up, aspirational amendment to the Constitution that is going to be nothing but a backdoor boondoggle for trial lawyers.”
end quotes
I can see the ads going up now for legal services related to getting justice for “dirty water” and “dirty air” claims, sign up now results guaranteed, as was the case in Hoosick Falls where according to a Talk Radio 1300 article titled "Opinion: T-Spin: The feds screwed up Hoosick Falls" by Jim Franco on February, “Lawyers are circling like buzzards looking to sign people up in a class action lawsuit, and politicians, of course, are grandstanding and pointing fingers,” as was the case when Erin Brockovich, a famed whistleblower and consumer advocate who works with Weitz & Luxenberg, zipped through Hoosick Falls in a one-day whirlwind tour to recruit lawsuit candidates, and then stated in a news release:
"Enough is enough."
"The negligent acts of these companies have resulted in a public health crisis."
"The last thing people should be worrying about is whether the water they give to their children is dangerous."
end quotes
As a lengthy analysis of the situation in a series of essays on the TALK 1300 site clearly demonstrated, however, just as was the case with GE Hudson Falls and the PCB’s, and Storonske Cooperage in Schodack and TCE in the drinking water from that fiasco, the negligence was clearly that of the NYSDEC and Rensselaer County Department of Health as a part of the state’s “business-friendly, turn your backs to protect the polluters” policy, which policy is still in effect in New York state and in fact, is in play right now in connection with the investigation of PFAS in Poestenkill where every effort is being made by the DEC and RCDOH to shield the likely polluter, the DEC-permitted and regulated Poestenkill transfer station at the intersection of state routes 66 and 351, on the high ground above the contaminated wellfield of the Algonquin School in Poestenkill.
The state of New York wanted business in Hoosick Falls and was willing to turn its back and look the other way with respect to environmental abuses to get them there and keep them there, so it was never a surprise that the water in Hoosick Falls was being contaminated.
As I demonstrated in that series of essays, the DEC and RCDOH had all the tools they ever would have needed to protect that water, and they made a conscious choice to not use them, and this “green amendment” does nothing at all to change that attitude or to compel adherence to the law as written, which in the case of the DEC would make no difference given the Environmental Conservation Law was written to be intentionally flawed so as to make it unenforceable, which takes us back to the essay titled “This Changes Everything: New York’s Environmental Amendment” by Rebecca Bratspies on 25 February 2022, where was stated as follows, to wit:
The New York Constitution tasks the Governor with the duty to “take care that the law be faithfully executed.”
end quote
Yes, indeed it does do that, which is fifth grade civics.
And when you do do that, faithfully execute New York State Environmental Conservation Law § 3-0103, you will faithfully execute it as Basil Seggos holding office at the pleasure of yourself, which is to say, he is your servant, not a servant of the people of the State of New York, and as your servant, he does what you tell him to do, and thus, he shares your immunity, and since his job is undefined other than that he is your personal servant, there is nothing a judge can order him to do because of separation of powers.
And when you faithfully execute New York State Environmental Conservation Law § 3-0301(1) wherein is provided that "(I)t shall be the responsibility of the department, in accordance with such existing provisions and limitations as may be elsewhere set forth in law, by and through the commissioner to carry out the environmental policy of the state set forth in section 1-0101 of this chapter," you will do so in light of the statutory language of New York State Environmental Conservation Law § 3-0301(1), where we find these further words, to wit: "In so doing, the commissioner shall have power to."
And as an accomplished and thoroughly knowledgeable attorney, you well know that those words in that statutory language "shall have power to" serve to make the so-called "responsibility of the department, in accordance with such existing provisions and limitations as may be elsewhere set forth in law, by and through the commissioner to carry out the environmental policy of the state set forth in section 1-0101 of this chapter," entirely optional and discretionary on the part of the Commissioner, who serves at the pleasure of the Governor pursuant to New York Environmental Conservation Law § 3-0103.
Thus, according to the manner in which the Legislature of the State of New York chose to word New York State Environmental Conservation Law § 3-0301(1), the statutory language New York State Environmental Conservation Law § 1-0101(1), wherein is provided "(I)t is hereby declared to be the policy of the State of New York to conserve, improve and protect its natural resources and environment and 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," is in actuality the merest hint of a suggestion and can be ignored at will by the "department, by and through the commissioner," which means that the Commissioner of the New York State Department of Environmental Conservation has complete freedom and discretion to totally ignore the policy of the State of New York to conserve, improve and protect its natural resources and environment and instead can allow water, land and air pollution, while totally ignoring the enhancement of the health, safety and welfare of the people of the state and their overall economic and social well being, which makes a hollow mockery out of the so-called “green amendment,” which was nothing more than a political publicity stunt.
An empty gesture.
And of great importance to this matter, given that licensed professional engineers are supposedly licensed to safeguard life, health and property, which should have made them a safeguard for the people with respect to the air people breathe, the water they drink, and the environment they must live in, when you faithfully execute New York State Education Law §7206(1)(1)(7), wherein is stated that to qualify for a license as a professional engineer an applicant shall be of “good moral character as determined by the department,” which is to say, good moral character as determined by the state of New York, you will faithfully execute that as to mean that “good moral character” for a licensed engineer in New York State is unquestioning and blind obedience to the dictates of political authority, which is to say, blind obedience to your will alone, which makes licensed professional engineers mere “rubber stamps,” which in turn makes a mockery of the concept of engineers in New York state supposedly being licensed to safeguard life, health and property when the reality is that they are there to serve the whims of the political branch of government blindly and without question.
Until that all changes, which is to say, until you as governor change all of that, there is going to be no change in New York state with respect to environmental protection, because there is no incentive to change what U.S. Attorney for the Southern District of New York Preet Bharara described in the April 23, 2013 Times Union as “a culture of corruption” in New York State that “has developed and grown, just like barnacles on a boat bottom.”
Sincerely,
Paul R. Plante, NYSPE
Re: THE PAUL PLANTE STORY
thelivyjr wrote: ↑Wed Apr 20, 2022 1:40 p As to the silly games the corrupt New York State Department of Environmental Conservation plays to thwart New York State Public Officers Law § 84, which provides in clear and unambiguous statutory language that "a free society is maintained when government is responsive and responsible to the public, and when the public is aware of governmental actions," so that, "the more open a government is with its citizenry, the greater the understanding and participation of the public in government," and to further thwart "the people's right to know the process of governmental decision-making and to review the documents and statistics leading to determinations" being basic to our society, while denying that "that government is the public's business and that the public, individually and collectively and represented by a free press, should have access to the records of government in accordance with the provisions of this article," here is a prime example:
30 March 2022
Dear Paul R.:
Thank you for your Freedom of Information Law (FOIL) request.
Your request has been received and is being processed.
Your request was received in this office on 3/30/2022 and given the reference number FOIL #W098850-033022 for tracking purposes.
You may expect the Department's response to your request no later than 4/28/2022.
Record Requested: Any and all records related to a site investigation, conducted in accordance with Appendix 3A of NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION DIVISION OF ENVIRONMENTAL REMEDIATION TECHNICAL GUIDANCE FOR SITE INVESTIGATION AND REMEDIATION CHAPTER 3 SITE CHARACTERIZATION and REMEDIAL INVESTIGATION, 3.1 Site Characterization and Remedial Investigation, for PFOA containment at the Algonquin School in the Town of Poestenkill, Rensselaer County; and Any and all records related to a site investigation, conducted in accordance with Appendix 3A of NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION DIVISION OF ENVIRONMENTAL REMEDIATION TECHNICAL GUIDANCE FOR SITE INVESTIGATION AND REMEDIATION CHAPTER 3 SITE CHARACTERIZATION and REMEDIAL INVESTIGATION, 3.1 Site Characterization and Remedial Investigation, for PFOA containment at the Waste Management Facility in the Town of Poestenkill, Rensselaer County.
April 18, 2022 at 2:56 PM
Office of General Counsel
P: (518) 402-9522 | F:
www.dec.ny.gov
RE: PUBLIC RECORDS REQUEST of 3/30/2022, Reference # W098850-033022
Dear Mr. Plante,
In regard to your Freedom of Information Law (FOIL) request, be advised that DEC is continuing to process your FOIL request.
We estimate that DEC will complete its process by 5/5/2022.
We will notify you in writing when/if the responsive materials are available for release or if more time is required to complete your request.
If you have any questions in the interim, please call the FOIL Unit at (518) 402-9522 and refer to FOIL request #W098850-033022, or simply reply to this email.
Thank you.
Sincerely,
Records Access
April 29, 2022 at 3:15 PM
Office of General Counsel
P: (518) 402-9522 | F:
www.dec.ny.gov
RE: PUBLIC RECORDS REQUEST of 3/30/2022, Reference # W098850-033022
Dear Paul R. Plante,
In regard to your Freedom of Information Law (FOIL) request, be advised that DEC is continuing to process your FOIL request.
We estimate that DEC will complete its process by 5/27/2022.
We will notify you in writing when/if the responsive materials are available for release or if more time is required to complete your request.
If you have any questions in the interim, please call the FOIL Unit at (518) 402-9522 and refer to FOIL request #W098850-033022, or simply reply to this email.
Thank you.
Sincerely,
Records Access
thelivyjr wrote: ↑Wed Jun 29, 2022 1:40 p May 27, 2022 at 2:10 PM
Office of General Counsel
P: (518) 402-9522 | F:
www.dec.ny.gov
RE: PUBLIC RECORDS REQUEST of 3/30/2022, Reference # W098850-033022
Dear Paul R. Plante,
In regard to your Freedom of Information Law (FOIL) request, be advised that DEC is continuing to process your FOIL request.
We estimate that DEC will complete its process by 7/29/2022.
We will notify you in writing when/if the responsive materials are available for release or if more time is required to complete your request.
If you have any questions in the interim, please call the FOIL Unit at (518) 402-9522 and refer to FOIL request #W098850-033022, or simply reply to this email.
Thank you.
Sincerely,
Records Access
Office of General Counselthelivyjr wrote: ↑Fri Jul 29, 2022 1:40 p Office of General Counsel
P: (518) 402-9522 | F:
www.dec.ny.gov
RE: PUBLIC RECORDS REQUEST of 3/30/2022, Reference # W098850-033022
Dear Paul R. Plante,
In regard to your Freedom of Information Law (FOIL) request, be advised that DEC is continuing to process your FOIL request.
We estimate that DEC will complete its process by 8/29/2022.
We will notify you in writing when/if the responsive materials are available for release or if more time is required to complete your request.
If you have any questions in the interim, please call the FOIL Unit at (518) 402-9522 and refer to FOIL request #W098850-033022, or simply reply to this email.
Thank you.
Sincerely,
Records Access
P: (518) 402-9522 | F:
www.dec.ny.gov
RE: PUBLIC RECORDS REQUEST of 3/30/2022, Reference # W098850-033022
Dear Paul R. Plante,
In regard to your Freedom of Information Law (FOIL) request, be advised that DEC is continuing to process your FOIL request.
We estimate that DEC will complete its process by 9/30/2022.
We will notify you in writing when/if the responsive materials are available for release or if more time is required to complete your request.
If you have any questions in the interim, please call the FOIL Unit at (518) 402-9522 and refer to FOIL request #W098850-033022, or simply reply to this email.
Thank you.
Sincerely,
Records Access
Re: THE PAUL PLANTE STORY
30 AUGUST 2022
The Honorable Kathy Hochul
Governor of New York State
NYS State Capitol Building
Albany, NY 12224
RE: On environmental injustice as a habit of NYSDEC
Dear Governor Hochul:
ENVIRONMENTAL INJUSTICE, DEC AND THE “GREEN AMENDMENT”
In an essay titled “This Changes Everything: New York’s Environmental Amendment” by Rebecca Bratspies, a Professor of Law at the CUNY School of Law where she is the founding director of the CUNY Center for Urban Environmental Reform whose recent scholarship focuses on questions of sustainability and on the intersection of human rights and environmental regulation on 25 February 2022, the author raises this relevant and pertinent question, to wit:
How will this amendment promote environmental justice?
In answer to that pertinent question, given that you yourself are actively promoting the practice of environmental injustice at DEC five (5) months after §19 of the Bill of Rights of the New York State Constitution became law of the land in New York state with your May 2022 professional engineer’s report titled “Poestenkill PFAS Investigation - Nearby Property Investigations Work Plan, (SPILL NO. 2105197), Poestenkill, NY, wherein you are imposing your bogus “general conformance” standard on professional staff at DEC with respect to the investigation of PFAS in the groundwater in Poestenkill as opposed to “substantial compliance” pursuant to § 29.1(b)(1) of the New York State Board of Regents, in order for professional staff at DEC to safeguard life, health and property in Poestenkill, with provisions of Federal, State or local laws, rules or regulations governing the practice of the profession, which rules and regulations in this instant matter are to be found in DER-10 Technical Guidance For Site Investigation And Remediation May 2010, and Sampling, Analysis, and Assessment of PFAS - June 2021, the “green amendment” will do absolutely nothing to promote environmental justice, and we are fools to think or believe otherwise.
With that pertinent question resolved, going back to the essay, the author continues as follows:
Section 19 is a clear recognition that environmental rights belong to everyone — that no people and no neighborhoods can be sacrificed on the altar of economic growth.
end quote
Given your direct involvement in an attempt to whitewash the negligence of the DEC, the RCDOH and the town of Poestenkill in connection with the pollution of the groundwater of Poestenkill subsequent to 1 January 2022, it can clearly be seen that that statement is false, because you are sacrificing the people of Poestenkill proximate to the DEC-permitted Poestenkill transfer station on your alter of economic growth, just as the people of Rensselaer proximate to the Dunn dump are being sacrificed.
Going back to the essay, the author continues as follows:
By grounding environmental rights in the state constitution, New Yorkers have committed their state to a new path forward — one based on environmental justice.
Environmental justice involves both fair treatment and meaningful involvement of communities in decisions by which environmental choices are made.
end quotes
In point of fact, however, as nice as that language sounds, long before the “green amendment” came along, the DEC has had an “environmental justice” program in place since at least 2003, as we see in the following, to wit:
Commissioner Policy 29, Environmental Justice and Permitting
New York State Department of Environmental Conservation
DEC Policy
Issuing Authority: Commissioner Erin M. Crotty
Date Issued: 3/19/03 Latest Date Revised: 3/19/03
I. Summary:
This policy provides guidance for incorporating environmental justice concerns into the New York State Department of Environmental Conservation (DEC) environmental permit review process and the DEC application of the State Environmental Quality Review Act.
The policy also incorporates environmental justice concerns into some aspects of the DEC's enforcement program, grants program and public participation provisions.
The policy is written to assist DEC staff, the regulated community and the public in understanding the requirements and review process.
This policy amends the DEC environmental permit process by identifying potential environmental justice areas; providing information on environmental justice to applicants with proposed projects in those communities; enhancing public participation requirements for proposed projects in those communities; establishing requirements for projects in potential environmental justice areas with the potential for at least one significant adverse environmental impact; and providing alternative dispute resolution opportunities to allow communities and project sponsors to resolve issues of concern to the community.
This policy will promote the fair involvement of all people in the DEC environmental permit process.
It will do this by training and educating DEC staff on environmental justice; providing public access to DEC permit information; incorporating environmental justice concerns into DEC's permit review process; and pursuing technical assistance grants to enable community groups in potential environmental justice areas to more effectively participate in the environmental permit review process.
This policy contains groundbreaking elements which will lead the nation in environmental justice.
As such, the DEC expects that the policy will be revised regularly to account for new information in the area of environmental justice and other issues encountered during the implementation of this policy.
end quotes
Which raises the question of exactly what does the “green amendment” provide in terms of environmental justice that is not already covered there in Commissioner Policy 29, Environmental Justice and Permitting issued by DEC Commissioner Erin M. Crotty on 3/19/03?
And if the DEC has had that policy in place since 2003 and has not been following it, how will the “green amendment” change anything?
And the short answer is that it won’t, since the so-called “green amendment” cannot make the DEC do something it should be doing, like providing environmental justice, but isn’t.
As to the subject or concept of “environmental justice,” it has been around a long time now, as we see by going back to Commissioner Policy 29, Environmental Justice and Permitting issued by Erin M. Crotty on 3/19/03, to wit:
II. Purpose and Background:
In 1998, various and diverse parties interested in environmental justice, including a number of environmental justice advocates and minority and low-income community representatives from across New York State, met with the DEC Commissioner to express concern over environmental justice issues.
Concerns raised by interested parties included, but were not limited to: the lack of meaningful public participation by minority or low-income communities in the permit process; the unavailability or inaccessibility of certain information to the public early in the permit process; and the failure of the permit process to address disproportionate adverse environmental impacts on minority and low-income communities.
On October 4, 1999, in response to the concerns raised by parties interested in environmental justice, DEC announced a new program to address environmental justice concerns and ensure community participation in the state's environmental permitting process.
DEC named an Environmental Justice Coordinator to oversee the Office of Environmental Justice and develop DEC's Environmental Justice Program, and created two staff positions in the Division of Environmental Permits.
DEC also established the New York State Environmental Justice Advisory Group (Advisory Group) comprising representatives from state, local and federal government, community groups, environmental groups, and the regulated community.
The Advisory Group, chaired by the Environmental Justice Coordinator, was asked to develop recommendations for an environmental justice permit policy and recommend elements for an effective environmental justice program.
On January 2, 2002, the Advisory Group submitted a report to DEC Commissioner Erin M. Crotty containing its recommendations for creating an effective environmental justice program.
The report: Recommendations for the New York State Department of Environmental Conservation Environmental Justice Program focuses on the environmental permit process and is intended to ensure DEC's programs are open and responsive to environmental justice concerns.
Additional recommendations for an environmental justice program are also included in the report.
The DEC held public meetings state-wide to solicit public comment on the Advisory Group report and accepted public comment for a period in excess of 50 days, through February 22, 2002.
This policy is based on the Advisory Group report, public comment on the report and DEC staff recommendations.
On August 7, 2002, a draft of this policy was released for public review and comment.
The comment period exceeded 90 days, ending on October 11, 2002.
Numerous detailed comments were received by the DEC and are reflected in this policy and in the implementation of this policy.
end quotes
So these same “enviros” and “GOO-GOOS,” as the famed political scientist Dr. Alan Chartock used to call “good government groups,” that are touting the “green amendment” today as the cure-all, be-all with respect to “environmental justice” had already been afforded an opportunity twenty (20) years ago to step up to the plate with regard to “environmental justice,” and obviously, their efforts failed.
So what is it they think will change today because of the “green amendment?”
The attitude of the DEC?
The attitude of the governor?
If the DEC does not follow its own internal policy now with respect to environmental justice, and the governor promotes that, how will the “green amendment” change anything?
And the answer is that it won’t.
Until the “culture of corruption” in New York state changes that causes environmental injustice, which has to start in the office of the governor, there will be no changes because there are no incentives to change in the “green amendment.”
Staying with Commissioner Policy 29, Environmental Justice and Permitting issued by Erin M. Crotty on 3/19/03, it continues, as follows, to wit:
III. Policy:
It is the general policy of DEC to promote environmental justice and incorporate measures for achieving environmental justice into its programs, policies, regulations, legislative proposals and activities.
This policy is specifically intended to ensure that DEC's environmental permit process promotes environmental justice.
This policy supports the DEC's continued funding and implementation of environmental programs that promote environmental justice, such as urban forestry, environmental education, the "I Fish NY" program and watershed enhancement projects.
This policy also encourages DEC efforts to implement other programs, policies, regulations, legislative proposals and activities related to environmental justice.
This policy shall become effective 30 days after the full text of this policy, or a summary thereof, along with information on how the full text may be obtained, has been published in the Environmental Notice Bulletin, as defined in Environmental Conservation Law 70-0105.
Any application for a permit received after the effective date of this policy will be subject to the provisions of this policy.
This policy shall be reviewed at least 18 months from the effective date and revised, as necessary, to consider the policy's applicability to various DEC Programs, incorporate evolving information on environmental justice and reflect the best available environmental protection information and resources.
The 18-month period shall enable DEC to further develop implementation procedures, better identify resources needed to implement the policy, and determine appropriate legislative, regulatory and policy changes that can be implemented.
Thereafter, DEC shall periodically evaluate the need for further revision, as implementation experience is gained.
This policy will not be construed to create any right or benefit, substantive or procedural, enforceable by law or by equity by a party against the DEC or any right to judicial review.
This policy may be subject to change at the discretion of DEC.
end quotes
And with respect to the statement that the “green amendment” is “a clear recognition that environmental rights belong to everyone, that no people and no neighborhoods can be sacrificed on the altar of economic growth," let’s go back to this statement from DEC’s environmental justice policy, to wit:
This policy will not be construed to create any right or benefit, substantive or procedural, enforceable by law or by equity by a party against the DEC or any right to judicial review.
end quotes
So if DEC’s environmental justice policy makes it patently clear in writing that DEC’s environmental justice policy will not be construed to create any right or benefit, substantive or procedural, enforceable by law or by equity by a party against the DEC or any right to judicial review, then how does the “green amendment“ manage to get around that to create a “right” out of “environmental justice?”
And the answer is that it doesn’t.
So much for the concept of environmental justice in New York state!
It is a chimera.
Sincerely,
Paul R. Plante, NYSPE
The Honorable Kathy Hochul
Governor of New York State
NYS State Capitol Building
Albany, NY 12224
RE: On environmental injustice as a habit of NYSDEC
Dear Governor Hochul:
ENVIRONMENTAL INJUSTICE, DEC AND THE “GREEN AMENDMENT”
In an essay titled “This Changes Everything: New York’s Environmental Amendment” by Rebecca Bratspies, a Professor of Law at the CUNY School of Law where she is the founding director of the CUNY Center for Urban Environmental Reform whose recent scholarship focuses on questions of sustainability and on the intersection of human rights and environmental regulation on 25 February 2022, the author raises this relevant and pertinent question, to wit:
How will this amendment promote environmental justice?
In answer to that pertinent question, given that you yourself are actively promoting the practice of environmental injustice at DEC five (5) months after §19 of the Bill of Rights of the New York State Constitution became law of the land in New York state with your May 2022 professional engineer’s report titled “Poestenkill PFAS Investigation - Nearby Property Investigations Work Plan, (SPILL NO. 2105197), Poestenkill, NY, wherein you are imposing your bogus “general conformance” standard on professional staff at DEC with respect to the investigation of PFAS in the groundwater in Poestenkill as opposed to “substantial compliance” pursuant to § 29.1(b)(1) of the New York State Board of Regents, in order for professional staff at DEC to safeguard life, health and property in Poestenkill, with provisions of Federal, State or local laws, rules or regulations governing the practice of the profession, which rules and regulations in this instant matter are to be found in DER-10 Technical Guidance For Site Investigation And Remediation May 2010, and Sampling, Analysis, and Assessment of PFAS - June 2021, the “green amendment” will do absolutely nothing to promote environmental justice, and we are fools to think or believe otherwise.
With that pertinent question resolved, going back to the essay, the author continues as follows:
Section 19 is a clear recognition that environmental rights belong to everyone — that no people and no neighborhoods can be sacrificed on the altar of economic growth.
end quote
Given your direct involvement in an attempt to whitewash the negligence of the DEC, the RCDOH and the town of Poestenkill in connection with the pollution of the groundwater of Poestenkill subsequent to 1 January 2022, it can clearly be seen that that statement is false, because you are sacrificing the people of Poestenkill proximate to the DEC-permitted Poestenkill transfer station on your alter of economic growth, just as the people of Rensselaer proximate to the Dunn dump are being sacrificed.
Going back to the essay, the author continues as follows:
By grounding environmental rights in the state constitution, New Yorkers have committed their state to a new path forward — one based on environmental justice.
Environmental justice involves both fair treatment and meaningful involvement of communities in decisions by which environmental choices are made.
end quotes
In point of fact, however, as nice as that language sounds, long before the “green amendment” came along, the DEC has had an “environmental justice” program in place since at least 2003, as we see in the following, to wit:
Commissioner Policy 29, Environmental Justice and Permitting
New York State Department of Environmental Conservation
DEC Policy
Issuing Authority: Commissioner Erin M. Crotty
Date Issued: 3/19/03 Latest Date Revised: 3/19/03
I. Summary:
This policy provides guidance for incorporating environmental justice concerns into the New York State Department of Environmental Conservation (DEC) environmental permit review process and the DEC application of the State Environmental Quality Review Act.
The policy also incorporates environmental justice concerns into some aspects of the DEC's enforcement program, grants program and public participation provisions.
The policy is written to assist DEC staff, the regulated community and the public in understanding the requirements and review process.
This policy amends the DEC environmental permit process by identifying potential environmental justice areas; providing information on environmental justice to applicants with proposed projects in those communities; enhancing public participation requirements for proposed projects in those communities; establishing requirements for projects in potential environmental justice areas with the potential for at least one significant adverse environmental impact; and providing alternative dispute resolution opportunities to allow communities and project sponsors to resolve issues of concern to the community.
This policy will promote the fair involvement of all people in the DEC environmental permit process.
It will do this by training and educating DEC staff on environmental justice; providing public access to DEC permit information; incorporating environmental justice concerns into DEC's permit review process; and pursuing technical assistance grants to enable community groups in potential environmental justice areas to more effectively participate in the environmental permit review process.
This policy contains groundbreaking elements which will lead the nation in environmental justice.
As such, the DEC expects that the policy will be revised regularly to account for new information in the area of environmental justice and other issues encountered during the implementation of this policy.
end quotes
Which raises the question of exactly what does the “green amendment” provide in terms of environmental justice that is not already covered there in Commissioner Policy 29, Environmental Justice and Permitting issued by DEC Commissioner Erin M. Crotty on 3/19/03?
And if the DEC has had that policy in place since 2003 and has not been following it, how will the “green amendment” change anything?
And the short answer is that it won’t, since the so-called “green amendment” cannot make the DEC do something it should be doing, like providing environmental justice, but isn’t.
As to the subject or concept of “environmental justice,” it has been around a long time now, as we see by going back to Commissioner Policy 29, Environmental Justice and Permitting issued by Erin M. Crotty on 3/19/03, to wit:
II. Purpose and Background:
In 1998, various and diverse parties interested in environmental justice, including a number of environmental justice advocates and minority and low-income community representatives from across New York State, met with the DEC Commissioner to express concern over environmental justice issues.
Concerns raised by interested parties included, but were not limited to: the lack of meaningful public participation by minority or low-income communities in the permit process; the unavailability or inaccessibility of certain information to the public early in the permit process; and the failure of the permit process to address disproportionate adverse environmental impacts on minority and low-income communities.
On October 4, 1999, in response to the concerns raised by parties interested in environmental justice, DEC announced a new program to address environmental justice concerns and ensure community participation in the state's environmental permitting process.
DEC named an Environmental Justice Coordinator to oversee the Office of Environmental Justice and develop DEC's Environmental Justice Program, and created two staff positions in the Division of Environmental Permits.
DEC also established the New York State Environmental Justice Advisory Group (Advisory Group) comprising representatives from state, local and federal government, community groups, environmental groups, and the regulated community.
The Advisory Group, chaired by the Environmental Justice Coordinator, was asked to develop recommendations for an environmental justice permit policy and recommend elements for an effective environmental justice program.
On January 2, 2002, the Advisory Group submitted a report to DEC Commissioner Erin M. Crotty containing its recommendations for creating an effective environmental justice program.
The report: Recommendations for the New York State Department of Environmental Conservation Environmental Justice Program focuses on the environmental permit process and is intended to ensure DEC's programs are open and responsive to environmental justice concerns.
Additional recommendations for an environmental justice program are also included in the report.
The DEC held public meetings state-wide to solicit public comment on the Advisory Group report and accepted public comment for a period in excess of 50 days, through February 22, 2002.
This policy is based on the Advisory Group report, public comment on the report and DEC staff recommendations.
On August 7, 2002, a draft of this policy was released for public review and comment.
The comment period exceeded 90 days, ending on October 11, 2002.
Numerous detailed comments were received by the DEC and are reflected in this policy and in the implementation of this policy.
end quotes
So these same “enviros” and “GOO-GOOS,” as the famed political scientist Dr. Alan Chartock used to call “good government groups,” that are touting the “green amendment” today as the cure-all, be-all with respect to “environmental justice” had already been afforded an opportunity twenty (20) years ago to step up to the plate with regard to “environmental justice,” and obviously, their efforts failed.
So what is it they think will change today because of the “green amendment?”
The attitude of the DEC?
The attitude of the governor?
If the DEC does not follow its own internal policy now with respect to environmental justice, and the governor promotes that, how will the “green amendment” change anything?
And the answer is that it won’t.
Until the “culture of corruption” in New York state changes that causes environmental injustice, which has to start in the office of the governor, there will be no changes because there are no incentives to change in the “green amendment.”
Staying with Commissioner Policy 29, Environmental Justice and Permitting issued by Erin M. Crotty on 3/19/03, it continues, as follows, to wit:
III. Policy:
It is the general policy of DEC to promote environmental justice and incorporate measures for achieving environmental justice into its programs, policies, regulations, legislative proposals and activities.
This policy is specifically intended to ensure that DEC's environmental permit process promotes environmental justice.
This policy supports the DEC's continued funding and implementation of environmental programs that promote environmental justice, such as urban forestry, environmental education, the "I Fish NY" program and watershed enhancement projects.
This policy also encourages DEC efforts to implement other programs, policies, regulations, legislative proposals and activities related to environmental justice.
This policy shall become effective 30 days after the full text of this policy, or a summary thereof, along with information on how the full text may be obtained, has been published in the Environmental Notice Bulletin, as defined in Environmental Conservation Law 70-0105.
Any application for a permit received after the effective date of this policy will be subject to the provisions of this policy.
This policy shall be reviewed at least 18 months from the effective date and revised, as necessary, to consider the policy's applicability to various DEC Programs, incorporate evolving information on environmental justice and reflect the best available environmental protection information and resources.
The 18-month period shall enable DEC to further develop implementation procedures, better identify resources needed to implement the policy, and determine appropriate legislative, regulatory and policy changes that can be implemented.
Thereafter, DEC shall periodically evaluate the need for further revision, as implementation experience is gained.
This policy will not be construed to create any right or benefit, substantive or procedural, enforceable by law or by equity by a party against the DEC or any right to judicial review.
This policy may be subject to change at the discretion of DEC.
end quotes
And with respect to the statement that the “green amendment” is “a clear recognition that environmental rights belong to everyone, that no people and no neighborhoods can be sacrificed on the altar of economic growth," let’s go back to this statement from DEC’s environmental justice policy, to wit:
This policy will not be construed to create any right or benefit, substantive or procedural, enforceable by law or by equity by a party against the DEC or any right to judicial review.
end quotes
So if DEC’s environmental justice policy makes it patently clear in writing that DEC’s environmental justice policy will not be construed to create any right or benefit, substantive or procedural, enforceable by law or by equity by a party against the DEC or any right to judicial review, then how does the “green amendment“ manage to get around that to create a “right” out of “environmental justice?”
And the answer is that it doesn’t.
So much for the concept of environmental justice in New York state!
It is a chimera.
Sincerely,
Paul R. Plante, NYSPE
Re: THE PAUL PLANTE STORY
THE CAPITOL PRESSROOM - WCNY Radio
"Green constitutional amendment still ‘undefined’"
By David Lombardo
July 18th, 2022
Last fall, voters approved adding language to the state constitution guaranteeing every New Yorker a right to clean air, clean water and a healthful environment.
More than six months into the life of the amendment, which took effect in January, and it’s still not clear what the language means for government regulators.
Speaking on The Capitol Pressroom, state Department of Environmental Conservation Commissioner Basil Seggos said the amendment is still “very undefined,” when asked how it was used, if at all, to inform a decision about air permits for a fossil fuel plant in the Finger Lakes.
“We didn’t need to rely upon it to make a determination,” he said.
“I’m sure the courts will interpret [the amendment], ultimately,” Seggos said, noting some cases had already been filed.
“It will take some time."
"That ultimately will then help us understand the metes and bounds of that amendment.”
https://capitolpressroom.org/2022/07/18 ... undefined/
"Green constitutional amendment still ‘undefined’"
By David Lombardo
July 18th, 2022
Last fall, voters approved adding language to the state constitution guaranteeing every New Yorker a right to clean air, clean water and a healthful environment.
More than six months into the life of the amendment, which took effect in January, and it’s still not clear what the language means for government regulators.
Speaking on The Capitol Pressroom, state Department of Environmental Conservation Commissioner Basil Seggos said the amendment is still “very undefined,” when asked how it was used, if at all, to inform a decision about air permits for a fossil fuel plant in the Finger Lakes.
“We didn’t need to rely upon it to make a determination,” he said.
“I’m sure the courts will interpret [the amendment], ultimately,” Seggos said, noting some cases had already been filed.
“It will take some time."
"That ultimately will then help us understand the metes and bounds of that amendment.”
https://capitolpressroom.org/2022/07/18 ... undefined/
Re: THE PAUL PLANTE STORY
"New York’s 'Green Amendment' Being Put to the Test"
Written by Harter Secrest and Emery LLP
Published: February 24, 2022
Thomas M. Tuori ttuori@hselaw.com
Alicia R. Stoklosa astoklosa@hselaw.com
On November 2, 2021, New York voters overwhelmingly approved the “Green Amendment” to the New York State Constitution.
The Amendment secures each person’s “right to clean air and water, and a healthful environment.” N.Y. Const., Art. 1, Sec. 19.
New York is the third state, after Montana and Pennsylvania, to enshrine environmental rights in its bill of rights.
Other states, including Hawaii, Illinois, Massachusetts, and Rhode Island, have provisions in their respective constitutions that protect the environment.
While the Green Amendment’s passage was celebrated by practitioners and advocates across the state and nation, much remains uncertain and open to interpretation regarding the Amendment’s applicability.
The Amendment created new avenues for environmental litigation, but it is unclear whether the Amendment’s vague language provides a private cause of action.
By its plain language, the Amendment gives every New Yorker the right to sue any individual or entity that does not comply with state environmental standards.
However, several members of the New York State legislature, during floor debates, indicated that the Amendment does not provide citizens the right to sue private individuals or entities.
It is also unclear whether compliance with New York environmental laws and regulations will protect potential defendants from litigation brought under this Amendment.
These uncertainties will soon be put to the test, as the first two lawsuits claiming violations of the Amendment have been filed in Monroe County Supreme Court.
The first lawsuit alleges that a municipality and a privately owned landfill violated the right to clean air and a healthful environment by allowing the continuous emission of noxious gases and odors from the landfill.
The second lawsuit, brought against the New York Department of Environmental Conservation (the “DEC”), alleges that the DEC failed to enforce applicable laws, regulations, and permits against the same landfill.
On February 22, 2022, respondents in the first lawsuit filed motions to dismiss the complaint.
As of the publishing date of this LEGALcurrents, no response has been filed with respect to the second complaint against the DEC.
https://hselaw.com/news-and-information ... -the-test/
Written by Harter Secrest and Emery LLP
Published: February 24, 2022
Thomas M. Tuori ttuori@hselaw.com
Alicia R. Stoklosa astoklosa@hselaw.com
On November 2, 2021, New York voters overwhelmingly approved the “Green Amendment” to the New York State Constitution.
The Amendment secures each person’s “right to clean air and water, and a healthful environment.” N.Y. Const., Art. 1, Sec. 19.
New York is the third state, after Montana and Pennsylvania, to enshrine environmental rights in its bill of rights.
Other states, including Hawaii, Illinois, Massachusetts, and Rhode Island, have provisions in their respective constitutions that protect the environment.
While the Green Amendment’s passage was celebrated by practitioners and advocates across the state and nation, much remains uncertain and open to interpretation regarding the Amendment’s applicability.
The Amendment created new avenues for environmental litigation, but it is unclear whether the Amendment’s vague language provides a private cause of action.
By its plain language, the Amendment gives every New Yorker the right to sue any individual or entity that does not comply with state environmental standards.
However, several members of the New York State legislature, during floor debates, indicated that the Amendment does not provide citizens the right to sue private individuals or entities.
It is also unclear whether compliance with New York environmental laws and regulations will protect potential defendants from litigation brought under this Amendment.
These uncertainties will soon be put to the test, as the first two lawsuits claiming violations of the Amendment have been filed in Monroe County Supreme Court.
The first lawsuit alleges that a municipality and a privately owned landfill violated the right to clean air and a healthful environment by allowing the continuous emission of noxious gases and odors from the landfill.
The second lawsuit, brought against the New York Department of Environmental Conservation (the “DEC”), alleges that the DEC failed to enforce applicable laws, regulations, and permits against the same landfill.
On February 22, 2022, respondents in the first lawsuit filed motions to dismiss the complaint.
As of the publishing date of this LEGALcurrents, no response has been filed with respect to the second complaint against the DEC.
https://hselaw.com/news-and-information ... -the-test/
Re: THE PAUL PLANTE STORY
Green Amendment NY
"Knauf Shaw Files Lawsuits Alleging Violations of the New Green Amendment to the NYS Constitution"
by KnaufShaw in Environmental Litigation
Two lawsuits have been filed in New York State Supreme Court in Monroe County by Knauf Shaw LLP on behalf of non-profit citizen’s group Fresh Air for the Eastside, Inc. (FAFE), alleging violations of the new “Green Amendment” to the New York Constitution.
The first lawsuit, brought by an Amended Petition filed on 1/21/2022, alleges that the Town of Perinton and Waste Management of New York, L.L.C. (WMNY), violated the right to clean air and a healthful environment by approving a Host Community Agreement (HCA) between the parties related to the mega High Acres Landfill (Landfill) in the Towns of Perinton and Macedon.
FAFE claims that the continuous emission of noxious gases and odors, including greenhouse gases (GHGs), from the Landfill cause unclean air and an unhealthful environment for its members and the surrounding community, and that the approval of the HCA exacerbates those conditions and is contrary to State law and policy, including the Climate Leadership Community Protection Act, and the Green Amendment.
The second lawsuit was filed on 1/28/2022, alleging that the State of New York, NYS Department of Environmental Conservation (DEC), the City of New York (NYC), and WMNY violated the Green Amendment through their combined actions and omissions in the management of municipal solid waste at the Landfill, causing unclean air and an unhealthful environment by the continuous release of emissions of odors and noxious gases laced with hazardous substances, including GHGs.
DEC has failed to enforce applicable laws, regulations, and permits against the Landfill, in violation of State law and policy, including the Solid Waste Management Hierarchy.
The Landfill is a major dumping site for NYC’s garbage, representing about 90% of all of the waste disposed at the Landfill, and NYC has failed to abate the harmful environmental conditions it causes.
FAFE seeks the immediate abatement of the unclean air and unhealthful environment caused by Defendants and the Landfill.
The Green Amendment was overwhelmingly approved by New York voters in November.
It is set forth Section 19 of Article I of the New York Constitution, and guarantees “Each person shall have a right to clean air and water, and a healthful environment.”
Knauf Shaw is not aware of any other Green Amendment cases that have been filed.
For more information, please contact Knauf Shaw LLP, Linda Shaw, Esq. (lshaw@nyenvlaw.com), or Alan Knauf, Esq, (585) 546-8430 (aknauf@nyenvlaw.com), nyenvlaw.com.
https://www.nyenvlaw.com/blog/knauf-sha ... stitution/
"Knauf Shaw Files Lawsuits Alleging Violations of the New Green Amendment to the NYS Constitution"
by KnaufShaw in Environmental Litigation
Two lawsuits have been filed in New York State Supreme Court in Monroe County by Knauf Shaw LLP on behalf of non-profit citizen’s group Fresh Air for the Eastside, Inc. (FAFE), alleging violations of the new “Green Amendment” to the New York Constitution.
The first lawsuit, brought by an Amended Petition filed on 1/21/2022, alleges that the Town of Perinton and Waste Management of New York, L.L.C. (WMNY), violated the right to clean air and a healthful environment by approving a Host Community Agreement (HCA) between the parties related to the mega High Acres Landfill (Landfill) in the Towns of Perinton and Macedon.
FAFE claims that the continuous emission of noxious gases and odors, including greenhouse gases (GHGs), from the Landfill cause unclean air and an unhealthful environment for its members and the surrounding community, and that the approval of the HCA exacerbates those conditions and is contrary to State law and policy, including the Climate Leadership Community Protection Act, and the Green Amendment.
The second lawsuit was filed on 1/28/2022, alleging that the State of New York, NYS Department of Environmental Conservation (DEC), the City of New York (NYC), and WMNY violated the Green Amendment through their combined actions and omissions in the management of municipal solid waste at the Landfill, causing unclean air and an unhealthful environment by the continuous release of emissions of odors and noxious gases laced with hazardous substances, including GHGs.
DEC has failed to enforce applicable laws, regulations, and permits against the Landfill, in violation of State law and policy, including the Solid Waste Management Hierarchy.
The Landfill is a major dumping site for NYC’s garbage, representing about 90% of all of the waste disposed at the Landfill, and NYC has failed to abate the harmful environmental conditions it causes.
FAFE seeks the immediate abatement of the unclean air and unhealthful environment caused by Defendants and the Landfill.
The Green Amendment was overwhelmingly approved by New York voters in November.
It is set forth Section 19 of Article I of the New York Constitution, and guarantees “Each person shall have a right to clean air and water, and a healthful environment.”
Knauf Shaw is not aware of any other Green Amendment cases that have been filed.
For more information, please contact Knauf Shaw LLP, Linda Shaw, Esq. (lshaw@nyenvlaw.com), or Alan Knauf, Esq, (585) 546-8430 (aknauf@nyenvlaw.com), nyenvlaw.com.
https://www.nyenvlaw.com/blog/knauf-sha ... stitution/
Re: THE PAUL PLANTE STORY
SUPREME COURT
STATE OF NEW YORK COUNTY OF MONROE
______________________________________________________
FRESH AIR FOR THE EASTSIDE, INC.,
Plaintiff,
vs.
THE STATE OF NEW YORK,
NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL
CONSERVATION, THE CITY OF NEW YORK,
WASTE MANAGEMENT OF NEW YORK, L.L.C.
Defendants,
__________________________________
Plaintiff, Fresh Air for the Eastside, Inc. (“FAFE”) for its Complaint, by its attorneys, Knauf Shaw LLP, alleges as follows:
AS AND FOR A CAUSE OF ACTION FOR VIOLATION OF ARTICLE I §19 OF THE NEW YORK CONSTITUTION PLAINTIFF ALLEGES AS FOLLOWS:
149. Plaintiff repeats and realleges the allegations of paragraphs “1” through “148” of this Complaint, as set forth in this paragraph at length.
150. Section 19 of Article I of the New York Constitution provides for “Environmental rights,” and guarantees “Each person shall have a right to clean air and water, and a healthful environment.”
151. Article I §19 recognizes and functions to preserve New Yorker’s constitutional right to clean air, clean water, and a healthful environment. These inherent and inalienable rights reflect the basic societal contract between citizens and the government of New York.
152. The continuing emissions of Odors and Fugitive Emissions by the Landfill violate the constitutionally protected, affirmative rights of the Members to “clean air … and a healthful environment.”
153. The combined acts and omissions of the Defendants in the management of MSW, including the failure of the State to properly exercise its enforcement powers, are causing dangerous, excess concentrations of GHGs to be emitted into the atmosphere, further contributing to the cumulative impact of anthropogenically sourced climate change.
154. 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.
155. The State, and in particular NYSDEC, has an affirmative duty to all the citizens of New York to protect the environment.
156. 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.
157. 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.
158. Furthermore, the continued operation of the Landfill is in violation of the Solid Waste Hierarchy, which makes landfilling the least favored option, in the “interest of public health, safety and welfare and in order to conserve energy and natural resources.”
159. 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 City Charter to ensure the proper disposal of NYC Garbage which it can enforce through the NYC contract with WMNY to prevent Community impacts.
160. 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.
161. 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.
162. The attempts by Defendants to mitigate the Odors and Fugitive Emissions are wholly inadequate to preserve a habitable climate and healthful environment.
163. The State has failed to adequately use its enforcement powers to cause WMNY to control the Odors and Fugitive Emissions at the Landfill.
164. 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.
165. 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 GHGs.
166. As a result, the Defendants are each violating the FAFE Members’ constitutionally protected rights of to “clean air …and a healthful environment.”
167. By reason of this constitutional violation, this Court should issue an injunction directing the immediate proper closure of the Landfill.
168. 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.
WHEREFORE, Plaintiff respectfully requests this Court award the following relief: (1) declare the Defendants are violating Plaintiff’s 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.
Dated: Rochester, New York
January 28, 2022
/s/ Linda R. Shaw
KNAUF SHAW LLP
STATE OF NEW YORK COUNTY OF MONROE
______________________________________________________
FRESH AIR FOR THE EASTSIDE, INC.,
Plaintiff,
vs.
THE STATE OF NEW YORK,
NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL
CONSERVATION, THE CITY OF NEW YORK,
WASTE MANAGEMENT OF NEW YORK, L.L.C.
Defendants,
__________________________________
Plaintiff, Fresh Air for the Eastside, Inc. (“FAFE”) for its Complaint, by its attorneys, Knauf Shaw LLP, alleges as follows:
AS AND FOR A CAUSE OF ACTION FOR VIOLATION OF ARTICLE I §19 OF THE NEW YORK CONSTITUTION PLAINTIFF ALLEGES AS FOLLOWS:
149. Plaintiff repeats and realleges the allegations of paragraphs “1” through “148” of this Complaint, as set forth in this paragraph at length.
150. Section 19 of Article I of the New York Constitution provides for “Environmental rights,” and guarantees “Each person shall have a right to clean air and water, and a healthful environment.”
151. Article I §19 recognizes and functions to preserve New Yorker’s constitutional right to clean air, clean water, and a healthful environment. These inherent and inalienable rights reflect the basic societal contract between citizens and the government of New York.
152. The continuing emissions of Odors and Fugitive Emissions by the Landfill violate the constitutionally protected, affirmative rights of the Members to “clean air … and a healthful environment.”
153. The combined acts and omissions of the Defendants in the management of MSW, including the failure of the State to properly exercise its enforcement powers, are causing dangerous, excess concentrations of GHGs to be emitted into the atmosphere, further contributing to the cumulative impact of anthropogenically sourced climate change.
154. 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.
155. The State, and in particular NYSDEC, has an affirmative duty to all the citizens of New York to protect the environment.
156. 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.
157. 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.
158. Furthermore, the continued operation of the Landfill is in violation of the Solid Waste Hierarchy, which makes landfilling the least favored option, in the “interest of public health, safety and welfare and in order to conserve energy and natural resources.”
159. 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 City Charter to ensure the proper disposal of NYC Garbage which it can enforce through the NYC contract with WMNY to prevent Community impacts.
160. 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.
161. 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.
162. The attempts by Defendants to mitigate the Odors and Fugitive Emissions are wholly inadequate to preserve a habitable climate and healthful environment.
163. The State has failed to adequately use its enforcement powers to cause WMNY to control the Odors and Fugitive Emissions at the Landfill.
164. 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.
165. 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 GHGs.
166. As a result, the Defendants are each violating the FAFE Members’ constitutionally protected rights of to “clean air …and a healthful environment.”
167. By reason of this constitutional violation, this Court should issue an injunction directing the immediate proper closure of the Landfill.
168. 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.
WHEREFORE, Plaintiff respectfully requests this Court award the following relief: (1) declare the Defendants are violating Plaintiff’s 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.
Dated: Rochester, New York
January 28, 2022
/s/ Linda R. Shaw
KNAUF SHAW LLP