By: Katherine Meek Esq.
On January 1, 2022, the New York State Assembly amended its State Constitution to add the Green Amendment, which states, in its entirety, that “each person shall have a right to clean air and water, and a healthful environment.
In 2023, the New York City Parks and Recreation Department (“Department”) sought to commence a renovation project in Fort Greene Park (“Project”). The Project involved removing 78 mature trees and replacing them with “hundreds” of younger, native trees. The department also sought to remove grassy mounds at the park entranceway and replace them with granite blocks.
Before commencing the project, the department issued a negative declaration for the project under New York’s Environmental Quality Review Act (“SEQRA”). A negative declaration under SEQRA eliminates the need for an environmental impact statement.
On October 4, 2023, Friends of Fort Greene Park (“Petitioner”) challenged the project. Citing the Green Amendment, petitioner asserted that the department had violated its constitutionally protected right to “clean air and water, and a healthful environment.”
Petitioner contended that the department’s issuance of a “deficient” negative declaration as opposed to a “proper” Environmental Impact statement was tantamount to taking “no action to mitigate harm…or preserve clean air and a healthful environment…or protect petitioner’s environmental rights.” Petitioner argued that, in its issuance of a negative declaration for the project, the department did not take into account “lost environmental benefits for generations” from the project’s tree removal. This included the trees’ “positive environmental impacts on air quality and mitigation of adverse environmental air quality, stormwater noise, and other environmental impacts from surrounding conditions.”
Petitioner also asserted that the Green Amendment should be considered a fundamental right, because it creates substantive environmental rights to “clean air and water, and a healthful environment” and a private right of action for each person to enforce those rights. Petitioner further argued that the department failed to consider how its issuance of a negative declaration would infringe on petitioner’s constitutional rights.
On July 1, 2025, the New York Supreme Court held in Friends of Fort Greene Park that the Green Amendment provided a substantive right and separate cause of action for New Yorkers based on the legislative history, context, and the state’s intent to make environmental rights a fundamental right. The Court found that the state’s constitutional provisions are presumptively self-executing, and the state’s assemblymen intended for the Green Amendment to provide a constitutional guarantee as to certain environmental rights so that New Yorkers could directly enforce those rights via state claims.
To assess whether the petitioner should prevail on its claims, the court applied a three-part test modifying one previously employed in Fresh Air for the Eastside, Inc. v. State. The first prong evaluated whether the government action complied with an applicable statute. The second prong assessed whether the government action violated an individual’s constitutional right to “clean air and water, and a healthful environment.” The third prong examined whether, if a constitutional violation, in fact, existed, the government could show that the plan was justified by an important interest that was substantially related and proportionate to the government action taken.
Applying this three-part test, the court found that the petitioner’s claim failed. The court held that the Department’s issuance of a negative declaration did not violate petitioner’s constitutionally-protected rights to “clean air and water, and a healthful environment.” The court based this on the Department’s compliance with SEQRA obligations and the fact that the Department intended to replace the mature trees with “hundreds” of new native trees. The court also stated that, even if a constitutional violation existed, the Department satisfied the third prong of the test, as removing mature trees fell within the scope of an important government interest: to “upgrade, modernize, and make more accessible local parks.”
Based on the holding in Friends of Fort Greene Park, causes of action invoking protections under New York State’s Green Amendment appear unlikely to prevail when the claim is based on an argument that a purported environmental benefit (new trees) is not as beneficial as the loss of an existing environmental benefit (mature trees). Further, the Court appears unwilling to find constitutional violations when a particular act is asserted to improve park accessibility and access. Here, the scope of this case may be limited to instances where two environmental causes are competing against each other, and both have valid arguments for how the environment would be improved if they prevail. This decision may have little impact on government projects that provide no environmental benefit, cannot pass SEQRA review, or contaminate drinking water, pollute the air, or exacerbate extreme weather and climate events.
