FAFE Court Update

/ Fresh Air for the Easide/
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On Wednesday afternoon, Judge Wolford heard testimony from both Waste Management and New York City on why they believe Fresh Air for the Eastside’s case should be dismissed. In January of this year, WM filed a motion to dismiss the case, and NYC followed suit with their own motion in February. Their requests to dismiss are in direct response to FAFE’s complaint against both WM and NYC for the ongoing odor nuisance faced by our community. This oral argument provided all three parties, and the legal team for an additional class-action lawsuit, to argue their cases in front of Judge Wolford.

Legal representation for WM and NYC took this time to walk through each of the reasons they believe the case should be thrown on. Some of these reasons included:

  • First-to-file - WM argues that FAFE’s case is essentially the same as an out-of-state class action lawsuit against WM, and that it is not a reasonable or efficient use of either WM’s or the Federal courts resources to address both cases at the same time. They believe that possible outcomes from the class-action lawsuit could impact decisions in the FAFE case.

  • Federal vs. State Court - WM argues that NYSDEC oversight and the creation of a Notice of Violation dictate that this is a State issue, not a federal issue, and that FAFE has not adequately exhausted all options available at the state-level.

  • Lack of requirements for WRICWA and Clean Air Act violations - WM argues that there is lack of precedence in court cases to show that odors from a corporation entity constitute as trespassing.

  • NYC Immunity - NYC points to their contract with WM, and claims that all liability is transferred to WM at the transfer station in NYC. They believe that it is their government duty to collect and dispose of NYC’s refuse, and that imposing further liability would prevent them from carrying out this civic duty.

Knauf Shaw was provided time for rebuttal, during which they reiterated that this is an ongoing, continuing nuisance that is impacting our community, citing the over 90 complaints that came in just this past week from FAFE members. Knauf Shaw stated that both WM and NYC’s display of gross negligence justify a decision for the case to move forward.  The Knauf Shaw team explained: 

  • The FAFE case is uniquely different from the separate class action lawsuit and that we should therefore not be penalized for submitting our complaint after the others.

  • The very nature of the NYSDEC’s inadequate NOV and relationship with WM justifies the case to be heard in Federal court. 

  • FAFE test results show the presence not only odors, but also elevated and potentially harmful chemical emissions on member properties and justify the trespassing allegations. 

  • NYC has knowledge of the issues associated with transporting their waste to far away communities as well as the fact NYC refuse accounts for more than 70% of the High Acres Landfill’s total intake. NYC continues to contribute to trash generation at the landfill, knowing that the refuse will cause a nuisance to those in the vicinity of the landfill.

Due to the technical nature of this case, and the volume of research, reference documents, and sources that she must review, Judge Wolford's decision could take several months. This could result in several potential outcomes:

  • Judge Wolford decides to let both cases (FAFE and the out-of-state class action) move forward

  • The two cases against WM are forced to consolidate

  • WM and NYC are granted dismissal

As FAFE awaits Judge Wolford’s decision, we ask that the community:

  • Continue to report - it is crucial to show that our community is still impacted and still cares about this issue.

  • Consider a donation - litigation can take months. FAFE and Knauf Shaw will continue to incur expenses for research, printing, paperwork, and expert testimony as the case continues.

  • Spread the word! Make sure your friends and neighbors know if they are impacted, and what FAFE is trying to do!