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Brigid Bergen: It's the Brian Lehrer Show on WNYC. Good morning again, everyone. I'm Brigid Bergen filling in for Brian who's off this week. Now our climate story of the week, what last week's landmark climate change ruling in Montana may signal for other states, and specifically, its implications for New York. If you need catching up, last Monday, a judge in Montana ruled that the state cannot prohibit taking climate change into account as it weighs fossil fuel projects. This case began when 16 young plaintiffs aged 5 to 22 argued that by developing fossil fuel projects, Montana's government violated their right to a clean and healthful environment as established in the state constitution. Samantha Maldonado, reporter for the nonprofit news organization The City, has a new story which points to the similarities between Montana's constitutional right to a clean and healthful environment, and a provision in the New York Constitution known as The Green Amendment. Samantha Maldonado joins me now, and also with us is Michael Gerrard, professor of Law at Columbia Law School, and the founder and faculty director of the Sabin Center for Climate Change. Samantha, Michael, welcome to WNYC.

Samantha Maldonado: Thanks so much.

Michael Gerrard: Good to be with you.

Brigid Bergen: Samantha, can you remind us first what New York's Green Amendment is? It might have slipped under the radar when it passed back in November 2021 for some of our listeners, particularly those paying attention to our last segment when we had that big mayoral election.

Samantha Maldonado: Sure. New York throughout the state has a green amendment in its constitution now, and that is the right to clean air and water and a healthful environment. Voters statewide had passed this through a ballot measure in November 2021. Now that right is enshrined in our state constitution.

Brigid Bergen: That right, [clears throat] excuse me, you report has been part of seven lawsuits being spurred filed in New York invoking The Green Amendment, and these include challenges to skyscrapers in Manhattan, an incinerator in Cohoes, and a waste facility near Cayuga Lake up in the Finger Lakes region. Michael, are you familiar enough with any of these New York lawsuits to give us a little bit of background on these cases and how the state's Green Amendment has been used in them?

Michael Gerrard: Sure. The one case that has actually gotten to the merits was the one you mentioned about an upstate landfill that is receiving mostly New York City waste. The court there, the New York State Supreme Court, found that the operations of that landfill and the odors it causes nearby may violate The Green Amendment to the state constitution. That case is going forward, but the judge did say that the amendment was applicable to this landfill and that even though the landfill is operating lawfully in that it has the necessary environmental permits, its negative environmental impacts may still be violating the state constitution.

Brigid Bergen: Do you think, in your expert opinion, that New York's Green Amendment is really enforceable, or will these cases test that?

Michael Gerrard: Well, these cases are testing it because the amendment, as Samantha said, is very general. It doesn't talk anything about enforceability, but this one decision that we have that has held that it is enforceable, it's under appeal. We'll see what happens with it, but I think there's a good chance that that amendment will be found to have force, how much force it has we won't know for a while.

Brigid Bergen: Listeners, we can take your calls on New York's Green Amendment which guarantees each person the right to "clean air and water and a healthful environment." If you're listening and happen to be a plaintiff in one of those seven lawsuits in New York that invokes The Green Amendment, well, help us report this story. Give us a call. The number's 212-433-WNYC. That's 212-433-9692. You can also text at that number or tweet @BrianLehrer, or if you have a question for either of my guests, again, the number is 212-433-WNYC. That's 212-433-9692. We're talking about New York's Green Amendment and that recent decision out of the state of Montana. Michael, let's talk about that decision. What specifically does the Montana ruling achieve? Are there certain fossil fuel projects that are going to be immediately canceled because of it?

Michael Gerrard: No, it doesn't go that far. It merely declared unconstitutional a state law that prohibited the state from considering climate change in making its energy policy, but it doesn't specify how the state has to come out. The state could say, we thought about climate change, we don't care about it that much, we think it's more important to continue to produce coal, gas, and oil, and we're going to go ahead and approve it. That, in turn, might be challenged in a later lawsuit, but this lawsuit is limited in its direct impact. It has much larger indirect impacts, but the direct impact is limited.

Brigid Bergen: Samantha, what do you think this signals about the state's responsibility? Because this Green Amendment guarantees certain rights, will New York State then have to start doing more to clean up its air and water?

Samantha Maldonado: Well, because this lawsuit was filed in Montana, New York doesn't really have to take into consideration what Montana does. However, legal experts told me that it does set a precedent and it could be informational and informative to judges that may rule on such cases. I was told that this lawsuit really shows us that the right to a healthful environment really includes a safe and stable climate. Maya van Rossum, who is the movement leader for getting states to adopt Green Amendments nationwide, she really said that we should be looking out in New York City and in New York state more broadly for a lawsuit that comes later that would invoke climate. Right now, Professor Gerrard can correct me if I'm wrong, but I don't think any of the seven lawsuits filed so far in New York really invoke climate as something that is being exacerbated and worsened by any sort of action by the state. If we have a lawsuit coming down the pike with that, perhaps the Montana decision will really help inform the kind of outcome we see.

Brigid Bergen: Anything you want to clarify there, Professor Gerrard?

Michael Gerrard: No. That is correct. None of those seven lawsuits are about climate change. New York, of course, has a very strong climate statute. The Climate Leadership and Community Protection Act passed in 2009, and it's just beginning to be implemented. I think it'd be premature to bring a case about that. If down the road the state falls down in implementation, then we may see such a case.

Brigid Bergen: We're getting a couple of callers with questions about how potentially this amendment could be applied. I think, Professor Gerrard, we're going to direct them to you. Let's go to Marlene in Windsor Terrace. Marlene, thanks for calling WNYC.

Marlene: Thank you. I live across the street from a church that contracts with a day camp during the summer. That day camp uses multiple buses during the day which idle beyond the legal limit. So far, I've been unable to do anything about it through letters, council people, et cetera. Do I have the right or can I sue through the Green Amendment?

Brigid Bergen: Marlene, thanks so much for that question. Professor Gerrard, what are your thoughts on that? Is that the type of scenario that someone might be able to seek to have the Green Amendment applied?

Michael Gerrard: Most of the seven lawsuits are actually based on fairly very local kinds of impacts such as what the caller called about, although that one is more local and smaller than the others. We don't yet know from the courts whether they're going to consider that kind of particular dispute subject to the Green Amendment. None of the decisions we've seen around the country under green amendments go to these local disputes, although there have been quite a few efforts to try to do that. None of those have succeeded so far.

Brigid Bergen: We have another call from Catherine in Tribeca. Catherine, welcome to WNYC.

Catherine: Hello.

Brigid Bergen: Go ahead.

Catherine: Thank you. Thank you for holding this very significant topic in this call. Yes, I have a question about the multiple Superfund sites. I believe we have four in New York City and over several hundred in New York State. I'm wondering if the Green Amendment will expedite and provide more monies to clean up these Superfund sites in our state and in our city.

Brigid Bergen: Catherine, thanks so much for that question. Professor Gerrard, is there anything that could help expedite the cleanup of these sites as a product of this amendment? It seems like the language in it is pretty general.

Michael Gerrard: Yes, certainly far from automatic. If they're a Superfund site, it means that they're already subject to various governmental processes to clean them up. However, the fact that the Upstate Landfill lawsuit said that compliance with a state statute and regulations is not necessarily enough could create an opening for that if the state is really stalling on a cleanup. We don't know yet, but if I were a lawyer representing a community group and I thought that the state was behaving too slowly on one of these, I might bring up this one potential claim.

Brigid Bergen: Professor, we have a text with a question from a listener who says, "Was there a strategic reason for the generalized language of the amendment? Was there more specific slash clearly enforceable language that was rejected before coming to voters?" Do you know any of the background on the language that was used and then voted on by voters that makes up this amendment?

Michael Gerrard: Generally, the more specific you get about enforceability, the harder it is to get the votes, and so the New York amendment is very general. Most of the other amendments are very general. If the language had gone further and given citizens a specific enforceable right, it would've been a stronger amendment, but it might not have gotten through.

Brigid Bergen: The New York State Department of Environmental Conservation, or DEC, is a defendant in a few of these lawsuits alleging violations to the Green Amendment. Michael, can you talk a little bit more about that? Are the plaintiffs looking to the DEC as the main enforcement agency?

Michael Gerrard: Yes. They're saying that DEC should take stronger action against this landfill for example, and they're also going after the town where it's located. The New York Attorney General, interestingly, in defending DEC has said "No, the Green Amendment does not go that far." That has made a number of environmental groups very unhappy with the stance of the Attorney General's office.

Brigid Bergen: Samantha, in one of the specific legal challenges that invokes the Green Amendment, plaintiffs attempted to stop construction of three towers in lower Manhattan. That suit was dismissed. Are there concerns that the Green Amendment might become a tool for NIMBY opposition to housing projects that really don't necessarily have anything to do with climate?

Samantha Maldonado: Yes, definitely. I think that lawsuit that you mentioned is a good example of that. Some people would say that's a NIMBY suit, "not in my backyard," from a group, one, to stop development, and people who agree with the lawsuit might say that it's a good use of the Green Amendment as a tool to prevent further environmental and health harm in that neighborhood. Ultimately, I believe that suit was dismissed, or at least some of the motions were early on. Yes, that's definitely something that has come to mind and a concern that I had heard when I was reporting on whether or not the state would be passing the Green Amendment, whether state voters would be frivolous lawsuits, and also Nimbyism definitely came up.

Brigid Bergen: Let's go to Andrew in Manhattan. Andrew, thanks for calling WNYC.

Andrew: Hi. Thank you.

Brigid Bergen: What's your comment about the Montana lawsuit and the New York Green Amendment?

Andrew: The Montana lawsuit is really powerful because it's about preventing environmental harm. A lot of New York statutes are about remediating harm, and then on the point of skyscrapers, there are a lot of studies coming out specifically from London and China that show that developments above a hundred feet, which is about 10 stories, and 210 feet, 21 stories, are extremely climate change polluting. In addition, the Bank of America building in Midtown, it's a really tall building, but it was LEED certified. It was claimed to be one of the greenest buildings, but it's actually one of the worst polluting buildings when you take into consideration the electronics and then the electricity that's used in the height.

Brigid Bergen: Andrew, what's your background, just out of curiosity?

Andrew: Environmental cellular researcher.

Brigid Bergen: I suspected you might have some insight into some of these issues. Thank you so much for calling and for sharing that perspective. Michael, I think one of the things that Andrew raises is a question about what some of the terms in this amendment actually mean. When we're talking about things to ensuring that New Yorkers have a right to "clean" and "healthful", what does that mean in practice? Can you help us dissect that language a little bit more?

Michael Gerrard: Well, we don't know yet because the courts haven't interpreted, but can I just say that I think I disagree with some of what Andrew was just saying?

Brigid Bergen: Oh, tell us more.

Michael Gerrard: From an environmental perspective, you generally want more density, and so the new building One Vanderbilt Avenue is right by Grand Central. It's the most transit-oriented development you could imagine. Almost nobody drives there, and I haven't seen the backup that it's one of the most polluting buildings. It has made a number of efforts to minimize its energy consumption and so forth. In general, high density, which involves tall buildings, has a lot of positive environmental aspects.

Brigid Bergen: We have a listener who texted a question regarding the suits or any against municipalities. "Why doesn't the New York City Department of City Planning change zoning laws that currently allow polluting Amazon delivery facilities to be built disproportionately in disadvantaged communities? Is this enforceable under this law?" Michael, what's your take on that?

Michael Gerrard: Some of the suits are against the municipalities. The lawsuit that Samantha was just talking about, which is about the Two Bridges project, was against the city, and cities are among the defendants in the Upstate Landfill case, but there's another new New York State law that hasn't gotten much attention. It was just signed by the governor earlier this year. The Environmental Justice Cumulative Impacts Law which prohibits state permits for projects that would have a disproportionate impact on disadvantaged communities, and facilities like Amazon warehouses might fall within that statute. People who are concerned about that kind of project ought to take a close look at this new New York State Environmental Justice Cumulative Impacts Law.

Brigid Bergen: Samantha, there's a sentence in your story that I want to dwell on for just a moment. You wrote, "There's a question of whether New York's Green Amendment can provide a guarantee that goes beyond the laws that already exist." I think what I am taking away from our conversation now is that there's a lot to be tested. There's a lot to be learned. What will you be watching for in that context going forward?

Samantha Maldonado: Yes, I think you're right. There's so much to be learned here, and it's really just the beginning of what this Green Amendment can do. We're just beginning to see it, and we've hardly seen anything yet. What I'm looking for is any sort of lawsuit that comes in the state that invokes climate when invoking the Green Amendment and trying to prevent further harm to our climate or pushes back against a state law or action that could harm the climate. I want to see how that goes. I'm also curious if the state does pass any sort of law that allegedly harms the climate, if this Green Amendment can be used in court to either change the law or to prevent it from being carried out.

Brigid Bergen: Michael, just so that we have some context about how many other parts of the country are dealing with laws like this Green Amendment, how many other states have something like this in their constitution, and is this a movement that appears to be picking up some steam?

Michael Gerrard: Pennsylvania, Hawaii, Massachusetts, and Illinois all have environmental provisions in their constitutions, and there is an effort in about eight other states to adopt them in those states. I think that this Montana decision is going to energize the efforts to adopt Green Amendments in those states, so I think that this is a movement that is picking up.

Brigid Bergen: I'm going to take one more caller. We have Grover in Sunset Park. As our listeners know, sometimes one listener will call in with a very site-specific issue, and then our listeners call in with some suggestions and solutions, and we love that. Grover, I think you had something to tell our listener who was concerned about bus idling.

Grover: Yes. If she goes to the newyorkcity.org website, there's a Citizens Air Complaint Program where if you submit a three-minute video of trucks or buses idling for longer than that, the newyorkcity.org site will give you 25% of the ticket that they recoup from the illegally idling truck or bus. There's some limitations on it, but all the information's on the site, and all you have to do is submit a timestamped video and they walk you through the process for how to do all of it.

Brigid Bergen: Wow. I just learned something from you as well as from our wonderful guests. We're going to leave it there. I want to thank Samantha Maldonado, reporter for the nonprofit news organization The City, and Michael Gerrard, professor of law at Columbia Law School and the founder and faculty director of the Sabin Center for Climate Change Law. My thanks to you both.

Michael Gerrard: Thank you.

Samantha Maldonado: Thank you so much.

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