The Environmental Rights Amendment: Additional Ammunition in Challenging a Proposed Condemnation

The new Environmental Rights Amendment was adopted on November 2, 2021.  The amendment adds Section 19 to Article I of the New York State Constitution and provides, “Each person shall have a right to clean air and water, and to a healthful environment.”  The amendment is effective January 2022.

The Environmental Rights Amendment is part of Article I, the New York Bill of Rights.

As set forth in a blog, “E2 Law Blog” written by David Mandelbaum, Esq. and Steven C. Russo, Esq. on November 8, 2021, the Bill of Rights protects rights of people against the government, but does not create private entitlements of one citizen against another.  “Thus, Section 19 probably constrains government action or requires affirmative action, but does not create a right of your neighbor to have you maintain your trees or stop polluting.”

Does the amendment provide additional ammunition in challenging a proposed condemnation?

New York’s Eminent Domain Procedure Law requires that a condemnor must comply with the State Environmental Quality Review Act (SEQRA).

The leading case in New York dealing with SEQRA is Jackson v New York State Urban Development Corp., 69 NY2d 400 (1986).  Judge Kaye, who wrote the decision involving a challenge to the 42nd Street Development project, stated: “The heart of SEQRA is the Environmental Impact Statement (EIS) process….  Under the act, an EIS must be prepared regarding any action that ‘may have a significant effect on the environment.’”  Id. at 415.  It was held that SEQRA “does not require an agency to impose every conceivable mitigation measure, or any particular one,” but rather, “requires the imposition of mitigation measures only ‘to the maximum extent practicable.”’  Id. at 422.  Essentially, what was required was to identify those impacts of the proposed development and to take “a hard analytical look at them.”  Id. at 426.

The entire holding thus can be summarized, as it was recently by the Appellate Division, Second Department, as the condemnor identifying ‘“the relevant areas of environmental concern,’ [taking] a ‘hard look’ at them, and [making] a ‘reasoned elaboration’ of the basis for its determination.”  Gyrodyne Co. of America, Inc. v State Univ. of N.Y. at Stony Brook, 17 AD3d 675, 676 (2d Dept 2005) (citations omitted).

In Sun Company, Inc. v City of Syracuse Industrial Development Agency, which involved the Carousel Landing Shopping Mall project in Syracuse, New York, the proposed taking was rejected because of the failure “to consider all environmental ramifications of the …[p]roject and …to analyze reasonable alternatives….”  209 AD2d 34, 50 (4th Dept 1995).  Since SEQRA mandates the preparation of an EIS when the proposed action may include the potential for at least one significant environmental effect, “there is a relatively low threshold for the preparation of an EIS.”  Uprose v Power Auth. of N.Y., 285 AD2d 603, 608 (2d Dept 2001); see Silvercup Studios, Inc. v Power Auth. of N.Y., 285 AD2d 598, 600 (2d Dept 2001).

Pursuant to SEQRA, a proposed condemnor may issue a negative declaration, obviating the need for an EIS only after it has “identified the relevant areas of environmental concern, [taken] a ‘hard look’ at them, and made a ‘reasoned elaboration’ of the basis for its determination.”  Jackson v N.Y. State Urban Dev. Corp., 67 NY2d 400, 417 (1986) (citations omitted); see Chinese Staff & Workers Assn. v City of New York, 68 NY2d 359, 363 (1986); Hubbard v Town of Sound Lake, 292 AD2d 617, 619 (1995).  But if there is an open issue not addressed completely by the Determination and Findings, the negative declaration will be invalid.  See Munash v Town Bd. of the Town of E. Hampton, 297 AD2d 345, 347 (2d Dept 2002).

The right to clean air and water and to a healthful environment will be a constitutional right.  In my opinion, it will provide an additional ground to challenge a proposed taking.


Posted in Challenges to Condemnation, EDPL Sec. 207, Environmental Rights Amendment, SEQRA
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