People v. Norlite, LLC: The Green Amendment Does Not Authorize Mandamus to Compel DEC Enforcement or Permit Revocation

Court: Appellate Division, Third Department (Feb. 26, 2026)  |  Citation: 2026 NY Slip Op 01105

1. Introduction

People v Norlite, LLC arises from longstanding complaints of fugitive dust emissions from an Albany County industrial facility owned and operated by Norlite, LLC. The facility mines shale from an on-site quarry and processes it into aggregate. Because each production step can generate airborne pollution, the facility operates under a DEC air emissions permit issued under ECL article 19 and Title V of the Clean Air Act, and under a DEC hazardous waste permit issued under ECL article 27. Both permits include conditions requiring implementation of a fugitive dust plan.

After years of resident complaints and multiple DEC notices of violation—resolved through penalties, environmental benefit projects, and operational commitments—the State of New York and DEC commenced an enforcement action in October 2022 alleging public nuisance and violations of statutory, regulatory, and permit conditions, seeking civil penalties and a permanent injunction.

A set of individuals and organizations (the “intervenors”) intervened and filed a third-party complaint asserting, among other claims, a cross-claim against DEC seeking (i) a declaration that DEC’s permitting of ongoing operations causing fugitive dust violates the intervenors’ rights under the Green Amendment (NY Const, art I, § 19), and (ii) an injunction directing DEC to revoke or rescind Norlite’s permits and prohibit operations.

The central issue on appeal was whether the Green Amendment supplies a cause of action (or otherwise creates an enforceable duty) that allows private parties to compel DEC—via declaratory and injunctive relief—to take enforcement action, including permit revocation.

2. Summary of the Opinion

The Third Department affirmed Supreme Court’s dismissal of the intervenors’ Green Amendment cross-claim against the state plaintiffs. The court held that, despite being framed as a declaratory judgment claim, the cross-claim functioned as a CPLR article 78 mandamus claim seeking to compel DEC to take enforcement action against a private entity. Mandamus is unavailable because DEC’s decisions to modify, suspend, or revoke permits and to select enforcement outcomes are discretionary, not ministerial. The court further rejected the contention that the Green Amendment creates a self-executing, judicially enforceable standard “above and beyond” the existing environmental regulatory regime in a manner that authorizes this form of relief.

3. Analysis

3.1. Precedents Cited

  • Fresh Air for the Eastside, Inc. v State of New York, 229 AD3d 1217 (4th Dept 2024), appeal dismissed 42 NY3d 1084 (2025), lv denied 44 NY3d 907 (2025)
    Role in Norlite: This was the controlling analogue. The Third Department adopted its reasoning that a pleading styled as declaratory relief may, in substance, be “essentially a CPLR article 78 proceeding in the nature of mandamus,” particularly where it seeks to compel the State to undertake enforcement against a private entity. The Norlite court treated the intervenors’ claim as the same kind of impermissible attempt to force agency enforcement outcomes.
  • Friends of Fort Greene Park v NYC Parks & Recreation Dept., 87 Misc 3d 1064 (Sup Ct, NY County 2025, Chesler, J.) and Streeter v New York City Dept. of Envtl. Protection, 83 Misc 3d 417 (Sup Ct, Kings County 2024, Frias-Colón, J.)
    Role in Norlite: Cited for legislative-history-adjacent context: sponsors and hearings suggested the Green Amendment would not “change any other laws” and would not create “additional rights of action” beyond existing claims (e.g., nuisance, negligence, land use). The Third Department used these decisions to reinforce a restrained reading of the amendment’s remedial implications.
  • Chan v United States Dept. of Transp., 2024 WL 5199945 (SD NY, Dec. 23, 2024) and Galbraith v City of Buffalo, ___ F Supp 3d ___, 2025 WL 3456169 (WD NY, Oct. 20, 2025)
    Role in Norlite: These federal decisions were cited to reject the characterization of the Green Amendment as creating a self-executing environmental standard exceeding New York’s “robust” regulatory regime, and to support the notion that alternative remedies can preclude a standalone constitutional cause of action.
  • Alwan v City of New York, 311 F Supp 3d 570 (ED NY 2018); Martinez v City of Schenectady, 97 NY2d 78 (2001); Shelton v New York State Liq. Auth., 61 AD3d 1145 (3d Dept 2009)
    Role in Norlite: These authorities supplied a broader constitutional-remedies principle: New York courts generally do not recognize a private right of action directly for state constitutional violations when alternative remedies exist (including state tort theories or CPLR article 78 review).
  • Matter of Hoffman v New York State Ind. Redistricting Commn., 41 NY3d 341 (2023) and Matter of Melendez v New York State Dept. of Corr. & Community Supervision, 240 AD3d 1111 (3d Dept 2025), lv denied ___ NY3d ___ (Feb. 19, 2026)
    Role in Norlite: These cases defined the conditions for mandamus: the duty must be mandatory and ministerial, and the petitioner must have a clear legal right to the relief sought.
  • Hussain v Lynch, 215 AD3d 121 (3d Dept 2023); Clements v New York Secretary of State, 227 AD3d 84 (3d Dept 2024), appeal dismissed 43 NY3d 955 (2025); New York Civ. Liberties Union v State of New York, 4 NY3d 175 (2005)
    Role in Norlite: These decisions demarcated “ministerial” acts from discretionary ones and reiterated that mandamus cannot force a particular outcome where agency judgment allows multiple acceptable results.
  • Tango v Tulevech, 61 NY2d 34 (1983) and Willows Condominium Assn. v Town of Greenburgh, 153 AD3d 535 (2d Dept 2017)
    Role in Norlite: Used to underscore that where statutes/regulations allow an agency to weigh factors and choose among remedies, the function is discretionary—making mandamus inappropriate.
  • Alliance to End Chickens as Kaporos v New York City Police Dept., 32 NY3d 1091 (2018), cert denied 587 US 1027 (2019)
    Role in Norlite: Cited for the proposition that private parties cannot use mandamus to compel a particular enforcement outcome from an agency.
  • Central Hudson Gas & Elec. Corp. v Public Serv. Commn., 242 AD3d 33 (3d Dept 2025)
    Role in Norlite: Supported the court’s conclusion that, once the claim is properly understood as article 78/mandamus in substance, it is duplicative to analyze it further as a CPLR 3001 declaratory judgment claim.

3.2. Legal Reasoning

The Third Department’s reasoning proceeds in three core steps.

(a) The Green Amendment’s text and adoption history do not imply a sweeping, privately enforceable mandate to compel agency enforcement

The court began by situating NY Const, art I, § 19 within the constitutional amendment process and comparing it to other states’ provisions. It emphasized that New York’s version did not include language requiring state enforcement (as in the Montana and Pennsylvania provisions cited) or expressly authorizing public enforcement (as in the Hawaii and Montana provisions cited). Against that backdrop—and consistent with Friends of Fort Greene Park v NYC Parks & Recreation Dept. and Streeter v New York City Dept. of Envtl. Protection—the court rejected the intervenors’ attempt to treat the Green Amendment as creating “environmental standards above and beyond” the existing regime.

(b) Alternative remedial pathways counsel against recognizing a standalone constitutional cause of action

Relying on Martinez v City of Schenectady and related authorities (and consistent with Alwan v City of New York), the court noted the general rule that direct constitutional causes of action are unavailable where other remedies exist—such as tort claims or article 78 review. This framing matters because it prevents NY Const, art I, § 19 from becoming a generalized vehicle to relitigate or override administrative enforcement choices whenever regulated emissions continue.

(c) The intervenors’ claim, though styled as declaratory/injunctive relief, is substantively mandamus—and fails because DEC’s enforcement powers are discretionary

The pivotal move was doctrinal: the court looked past the label (“declaratory judgment”) to the substance of the requested relief—an order directing DEC to revoke/rescind permits and halt operations. Under Fresh Air for the Eastside, Inc. v State of New York, this is “essentially a CPLR article 78 proceeding in the nature of mandamus.”

From there, the mandamus standard controlled. Citing Matter of Hoffman v New York State Ind. Redistricting Commn., the court reiterated that mandamus lies only to compel performance of a duty that is “mandatory and ministerial rather than discretionary.” The court then identified the statutory/regulatory sources of DEC’s enforcement authority and showed they are permissive and multi-factor:

  • ECL 70-0115 (1): DEC “may modify, suspend or revoke a permit.”
  • ECL 27-0913 (3): DEC may consider listed factors in determining whether a permit is held by “unqualified or unsuitable persons.”
  • 6 NYCRR 201-1.12: provides for enforcement options when permit conditions are not met.

Because these provisions allow DEC to weigh circumstances and choose among a range of outcomes, enforcement is not ministerial. The court reinforced this point by observing the “extensive list of resolutions” historically used with Norlite—penalties, donations, and capital improvements—illustrating “variation in acceptable outcomes.” Under Clements v New York Secretary of State, New York Civ. Liberties Union v State of New York, and Alliance to End Chickens as Kaporos v New York City Police Dept., mandamus cannot be used by private parties to force a particular enforcement result (such as permit revocation) when the agency has lawful discretion.

Finally, after characterizing the claim as mandamus in substance, the court declined to treat it separately as a declaratory judgment claim under CPLR 3001, citing Central Hudson Gas & Elec. Corp. v Public Serv. Commn..

3.3. Impact

The decision materially shapes early Green Amendment litigation in three ways:

  • Limits Green Amendment claims that seek to force agency enforcement choices. The opinion strengthens an inter-departmental consensus (following Fresh Air for the Eastside, Inc. v State of New York) that NY Const, art I, § 19 cannot be used to compel DEC to pursue specific enforcement outcomes against private facilities.
  • Channels disputes into existing remedies. Litigants alleging pollution-related harms must generally proceed through traditional avenues: nuisance, negligence, permit challenges where available, and properly framed article 78 proceedings (without attempting to force a discretionary enforcement endpoint).
  • Preserves agency discretion in selecting compliance tools. By tying the analysis to “may” language and multi-factor statutory schemes, the court protects DEC’s ability to calibrate responses—penalties, compliance plans, modifications—without judicially imposed escalation to revocation absent a clear ministerial duty.

Practically, future Green Amendment claims against state agencies are most likely to survive where they target clearly nondiscretionary duties (if any can be identified in text or implementing law), or where plaintiffs challenge concrete, final agency action within the confines of established administrative review doctrines—rather than demanding that DEC choose the harshest remedy.

4. Complex Concepts Simplified

  • “Green Amendment” (NY Const, art I, § 19): A constitutional guarantee that “[e]ach person shall have a right to clean air and water, and a healthful environment.” This case addresses remedies—what courts can order—rather than disputing the amendment’s existence or importance.
  • “Self-executing right”: A constitutional provision that can be enforced directly in court without additional legislation. The court resisted interpreting the Green Amendment as automatically creating new, expansive enforcement suits beyond established legal channels.
  • Declaratory judgment vs. CPLR article 78: A declaratory judgment (CPLR 3001) declares rights/status; article 78 is the main vehicle to challenge or compel administrative action. If a “declaratory” claim is really trying to compel agency action, courts may treat it as article 78 in substance.
  • Mandamus: An extraordinary article 78 remedy to compel an agency to do something it is legally required to do. It works only for ministerial duties.
  • Ministerial vs. discretionary: A ministerial act is mandatory and leaves no room for judgment; a discretionary act allows the agency to choose among acceptable options. Where statutes say an agency “may” act and may weigh factors, that is typically discretionary.
  • Enforcement discretion: Agencies commonly have latitude to decide whether and how to enforce—e.g., penalties, compliance schedules, permit modification, or revocation. Courts generally will not order an agency to pick a specific enforcement tool unless the law removes discretion.

5. Conclusion

People v Norlite, LLC establishes, for the Third Department, that the Green Amendment does not furnish private parties with a vehicle to compel DEC—through declaratory and injunctive relief—to revoke permits or otherwise take specific enforcement action against a regulated facility. When such relief is sought, the claim will be treated as mandamus in substance and dismissed absent a clear, ministerial duty. The opinion aligns Green Amendment enforcement with long-standing limits on constitutional causes of action and reinforces the central administrative-law principle that courts do not dictate discretionary enforcement outcomes.