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State’s ‘Green Amendment’ Evoked in Lawsuit Against the Two Bridges Mega-Development

A Manhattan judge dismissed a lawsuit citing the new so-called green amendment against the controversial Two Bridges project.

A controversial development that has been tied up in court for more than six years is now facing yet another lawsuit from residents of the Lower East Side and Chinatown — this time arguing that the Two Bridges mega-project will infringe upon the new constitutional right to clean air and water in a low-income community of color that already suffers from high rates of asthma.

The latest lawsuit was filed last month by the Asian American Legal Defense and Education Fund on behalf of 12 plaintiffs from the Lower East Side and Chinatown, and Council Member Christopher Marte, who represents the area.

Marte says his constituents face enough pollution and exhaust from the FDR Drive, and that construction of the planned towers along the East River would result in more fumes, while also unearthing toxic chemicals from old petroleum tanks that sit under one of the development lots. 

“This construction is gonna really hurt a lot of the people who historically have health issues. This area is an environmental justice neighborhood that’s already had to bear the brunt of development,” said Marte. "Their whole livelihood, where they go to school, where they go for a walk is going to be a construction site.”

But is a super-dense development atop an already toxic site what the so-called "green amendment" to the state constitution was meant to block ... or to allow?

The new law

Just one year ago, environmental attorneys and activists pushed hard for Proposition 2 — also known as the Green Amendment — on the November ballot, arguing that it would give New Yorkers legal standing to stop the environmental harms caused by highway expansions or the placement of waste transfer stations. The referendum passed overwhelmingly, supported by 69 percent of state voters.

For many, the purpose was obvious: stop environmental degradation.

“Say there was a defined pollution hotspot with a heavy volume of diesel-truck traffic — the community could petition to the City Council to ask for relief,” Peter Iwanowicz, executive director of Environmental Advocates NY, told Streetsblog at the time. “The government would then have to weigh [the] individual right to breathe air that doesn’t cut lives short or make people sick. If they ignore the plea, people can say, ‘I’m taking you to court. I think you’re violating my right to clean air.’”

The lawsuit against the Two Bridges project is the first in the five boroughs to cite the green amendment, though others have already been filed upstate, including against the permitting of a waste transfer station in upstate Cayuta.

Similar green amendments exist now only in Pennsylvania and Montana, but there’s been no parallel suit against a development project in those states, according to Maya van Rossum, founder of the Pennsylvania-based Green Amendments For The Generations, which helped write and pass New York’s law.

As such, there's no way to know if courts will rule against urban development — which by definition is far more polluting than, say, an open field of trees — or rule in favor of urban development on the grounds that dense housing with limited parking is far better for the environment than suburban sprawl, over which there is very little environmental oversight.

To lawyer Jack Lester, who is representing the plaintiffs, the green amendment is clear.

“It enshrines in law the right to every citizen of New York State to have environmental justice,” said Lester, who is also suing on behalf of plaintiffs hoping to stop the SoHo/NoHo rezoning. "The development at that location will destroy both air quality and statutory mandates for air and sunshine. It will set a precedent that developers must abide by constitutional rights."

But others are pushing back, saying the lawsuit is part of a kitchen-sink effort to defeat an affordable housing project and, worse, could set a dangerous precedent for other much-needed projects. And as feared, that it’s a perversion of the amendment by NIMBYs who are not invoking it in good faith. 

Similar tactics have been used to stop the 14th Street busway, congestion pricing, and the city's open restaurants program, whose critics argued that they would be worse for congestion and the environment. 

“By using this legal strategy now, they open up the floodgates for conservatives and landed interests to sue every time an affordable housing project, or a homeless shelter, or a renewable energy site gets built, citing ‘environmental concerns.’ Disaster,” Emilia Decaudin, a staffer with the Democratic Socialists of America, wrote on Twitter.

To some supporters, the green amendment even covers the concern of gentrification because the wording of the amendment was intentionally open-ended and references no specific types of supposed environmental harm. All it stated was that all New Yorkers have "the right to clean air and water and a healthful environment."

As such, said Anthony Rogers-Wright, the director of environmental justice at New York Lawyers for the Public Interest, the amendment encompasses anything that anyone believes could negatively affect his or her air, water or environment.

“It’s very important that we listen to communities who are directly impacted,” he said. "There’s so many factors we have to consider — construction, operational phase, environmental hazards, and displacement to gentrification. It’s a fair argument to bring up."

And the chair of the Environmental and Energy Law Section of the New York State Bar told Streetsblog that this is exactly the type of case he’d expect to come of the amendment.

“It was intended to apply to a situation exactly like this, an urban development in an economically challenged area,” said Jim Rigano. "The attorneys and plaintiffs bringing the lawsuit may want to consider obtaining expert scientific and medical opinions on the impact of the project on air quality and asthma, especially asthma. The attorneys may also want to seek injunctive relief, which can occur quickly, seeking a court order stopping the project."

But Brooklyn Council Member Lincoln Restler, who has encouraged the construction of affordable housing and development over parking in urban hubs like Lower Manhattan, said he's inclined to believe that this suit could be dead on arrival.

"While I understand this is not the primary basis of the litigation about the Two Bridges mega towers, I recall there had previously been some concerns at the time of the ballot proposal regarding potential unintended consequences of the Green Amendment impeding development," Restler said. "I am not familiar with the substance of the litigation at Two Bridges, which has long been a controversial proposal, but I imagine the component relating to the Green Amendment being a one-time issue that will be clarified by the courts and not being a factor in future development proposals."

The Two Bridges development

The saga of Two Bridges dates back to 1972, when the city designated part of the neighborhood as a "Large-Scale Residential Development area" in order to promote economic and residential growth. Because of the designation, the development put forward in 2016 was not subject to a rezoning via the city’s lengthy Uniform Land Use Review Procedure, only requiring more minor modifications. And despite protest from the community and local pols, it was approved by the City Planning Commission in 2018. 

Currently, the Two Bridges project includes 69- and 62-story towers that will connect to one another via a lobby at 260 South St., which is owned by Chetrit Group; a 63-story tower at 259 Clinton St., which is owned by Starrett Corporation; and an 80-story tower at 247 Cherry St., which is owned by JDS. Those projects would join an existing 80-story tower at 225 Cherry St. that was built in 2019. It will include a total of about 2,775 new units, roughly 25 percent of which, or 694, would be so-called affordable, including 200 units set aside specifically for low-income senior housing. It would also include new amenities like community facility space, retail, outdoor space, according to the project documents.

The fight to kill Two Bridges has snaked its way through the court system for several years on other legal grounds related to the city's zoning requirements; and now, it is now before the Manhattan Supreme Court due to the green amendment suit.

Marte says the situation is no different than if locals were suing to stop a highway expansion.

"When you look at a highway being built in low-income communities, that's the same as these developments — it already has a highway right next to it,” said Marte, who added that he would rather see what he called true affordable housing built there after a full neighborhood rezoning. "They're already harmed by environmental racism, and so I think this falls into that umbrella."

Marte's district ranks 15th worst out of the 51 Council districts for asthma, according to city data. The dozen plaintiffs claim in the 34-page suit that the construction and resulting new buildings will infringe on their right to clean air and water because it will eliminate some parking spaces, and add density and traffic.

"Available parking will be diminished, and vehicular traffic increased causing adverse impacts to air quality that must be evaluated in accordance with the constitutional amendment," the lawsuit says.

It's true that the number of available parking spots relative to the number of new units will be reduced, resulting in a so-called parking shortfall, according to project documents — no new spots will be created as part of the project and the 103 that currently exist on a surface-level parking lot on one of the development sites will be relocated to a below-ground facility in the proposed building at 260 South St. Four other parking spaces at 247 Cherry St. will also be removed, according to the Department of City Planning.

But in dense neighborhoods like lower Manhattan — and specifically in Marte's districts, where 80 percent of households do not own a car, according to city data — the city is actively encouraging transit-oriented development.

"A parking shortfall resulting from a project located in Manhattan does not constitute a significant adverse parking impact, due to the magnitude of available alternative modes of transportation," according to the 2018 environmental impact statement on the project.

A spokesperson for the city's Law Department says "the case is under review," and the developers did not respond to requests for comment. 

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