The Town of Riverhead, among other petitioners, initiated this action to challenge regulations promulgated by the New York State Department of Environmental Conservation. The Supreme Court, Albany County dismissed the action, finding that the issues where not ripe for review and that the petitioners lacked standing. The Supreme Court, Appellate Division, Third Department affirmed.
In this action, the various petitioners mounted both procedural and substantive challenges to new regulations promulgated by the Department of Environmental Conservation concerning the “taking” and “incidental taking” of endangered species. The petitioners base their petition on their ownership and maintenance of property that contains or is near endangered or threatened species.
The court stated that in order to show standing, the petitioners would need to show an injury in fact that the court can redress. Since the petitioners have not demonstrated that they have applied for such a permit, the Court found the petitioners lacked standing. The petitioners claim centered on potential future harm imposed by the regulations. However, the court found that unlike in land use reclassification cases, a potential injury is not sufficient to confer standing – it is too speculative.
One petitioner alleged that standing was conferred pursuant to the State Finance Law, which permits tax payers to challenge wrongful disbursements of state money or property. The court determined the facts of the case did not invoke the standing provided by state law. Further, the court found the petitioners where not entitled to common-law tax payer standing to challenge the regulations.
In light of the lack of standing, the court found that the procedural issues ripe for review could not be adjudicated. The substantive challenges to the regulations also would not be heard, as these issues could be ameliorated through application of the regulations. Additionally, the court provided that the mere presence of regulations did not make the issue ripe for review, as any alleged injury would be insufficient, being “nonjusticiable as wholly speculative and abstract.”
Ass’n for a Better Long Island v. N.Y.S. Dep’t Env. Conserv., 97 A.D.3d 1085 (3rd Dep’t, July 26, 2012)
The opinion is availablehere.