WCNY | The Capitol Pressroom: Green amendment to be tested in court

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The Capitol Pressroom · Green amendment to be tested in court


David Lombardo (DL): In 2021, New Yorkers overwhelmingly approved adding language to the state budget that guaranteed clean air, clean water, and a healthful environment. And while the amendment took effect at the start of 2022, it’s not clear that it’s guiding the decisions of state and local policy makers. To that end, some New Yorkers are turning to the court system to ensure the implementation of these protections including in New York City were the Asian American Legal Defense and Education Fund (AALDEF) who filed a lawsuit to stop a local construction project. For more on this suit and how it utilizes the state’s green constitution amendment, we’re joined on the Capitol Pressroom by the legal director of the organization, Bethany Li. Welcome to the show, Bethany.

Bethany Li (BL): Thanks so much for having us.

DL: Can you set the scene for us in terms of the scope of the developments that are being proposed, and generally speaking, for a statewide audience, where are they planned for?

BL: It’s planned for the Lower East Side and Chinatown in Manhattan, which historically has been a low-income neighborhood of color, and honestly a neighborhood that has been largely neglected by the government in terms of responses to environmental toxins and hazards. And so these towers that are going to be built in the neighborhood, just to give you a sense of the scale, they range from sixty something stories to eighty something stories. And until very recently, the highest buildings in the neighborhood generally were about less than thirty stories. So this is a significant change in terms of the construction.

DL: What are the potential environmental ramifications of these projects, and are the consequences a product of the construction or the actual operation of these properties in the future?

BL: It’s a little bit of both. We have experts who are telling us that both construction and vehicular traffic are actually the largest contributors of air pollution in the city. So that’s significant when we talk about a neighborhood like Chinatown and the Lower East Side, because of the past history of environmental impact that has affected residents’ respiratory health. And just to give an example of that, the Lower East Side has disproportionately historically had way more gas stations and storage units that have resulted in many oil spills that leave contaminants in the soil to this day that are higher than average. And then after the 9/11 attacks the toxic fumes that lingered in the air meant that residents in the neighborhood experienced asthma at higher rates than any other neighborhood in the city. And even now, those asthma rates remain disproportionately high. This is also a neighborhood that was really impacted by the COVID-19 pandemic, where we’re again talking about respiratory health. Of all the neighborhoods in lower Manhattan, the Lower East Side and Chinatown had the highest number of deaths related to the pandemic.

DL: So then, what is it about this construction that runs afoul in your mind of the constitutional language saying quote: “Each person shall have a right to clean air, and water, and a healthful environment”? Is it just the mere presence of the construction or does it have to do say with the extent of the possible contaminants that it might be emitting and exposing people to?

BL: The Lower East Side and Chinatown have generally not been places where people have had full access to that right. For this particular construction, the final environmental impact statement was actually done in 2018. So that’s four years ago, and it was done before the pandemic. When we talk about a construction, about a development project that will have a significant impact on residents’ respiratory health because of the increase in air pollution from the construction and the number of cars that are going to be generated from these many many many story buildings, it’s going to be important to account for the combined impact on residents’ respiratory health, from post-9/11, to the COVID-19 pandemic that wasn’t even taken into account when considering environmental impact originally. So what we’re asking for is a supplemental environmental impact statement.

DL: And if that shows a certain conclusion, is it possible that this project couldn’t go forward, or that they would have to pursue certain mitigation aspects of it?

BL: I mean I think we would explore the range of possibilities. Certainly if the supplemental environmental impact statement does show some of these impacts that our experts are predicting, there is definitely mitigations and other outcomes that would have to come.

DL: This language has been around for less than a year now. Is there any legal precedent for how it should be implemented that you’re able to point to in this case? Or are you breaking new ground here?

BL: It’s an untested amendment, so I’m curious to see how the courts are going to interpret it. When we talk about clean air and a healthful environment for every single New Yorker, too often residents like those in Lower East Side and Chinatown who are low-income and predominantly people of color, are left out of that contemplation. And so I do very much hope that this amendment protects everyone. But we’ll have to see.

New York also has really great environmental laws and regulations in the city in particular. AALDEF has actually in collaboration with some of the groups we continue to work with on environmental issues back in the 1980s, won a lawsuit that established considering residential and commercial displacement as a part of environmental impact when doing these environmental impact statements. So, there’s robust background for considering the range of environmental impact as a result of these types of development.

Interview continues…