In a victory for those who have long believed that the New York Court of Appeals needed to open the courthouse door wider for advocates seeking standing in environmental disputes, a decision last week by the Court delivered. The court began its decision, “We hold that a person who can prove that he or she uses and enjoys a natural resource more than most other members of the public has standing under the State Environmental Quality Review Act (SEQRA) to challenge government actions that threaten that resource. Applying that rule to this case, we hold that the individual petitioners who are members of petitioner Save the Pine Bush, Inc., and the organization itself, have standing to challenge an action alleged to threaten endangered species in the Pine Bush area.”
Following the required environmental review and subsequent rezoning of a 3.6 acre parcel adjoining the Pine Bush Preserve to accommodate a parking lot for a proposed hotel, nine members of Save the Pine Bush commenced challenging the City’s action under the State Environmental Quality Review Act, alleging that they “live near the site of the hotel project” and they “use the Pine Bush for recreation and to study and enjoy the unique habitat found there.” The trial court denied a motion to dismiss the proceeding for lack of standing, vacated the City’s SEQRA determination, and annulled the rezoning. The trial court determined that the environmental impact statement was flawed because while it gave “considerable attention” to the Karner Blue Butterfly, it did not contain “a hard look” at the potential impact on other rare plant and animals.
The Appellate Division affirmed (with two judges dissenting), finding, with respect to standing, that the plaintiffs could show evidence that “they regularly use the Preserve” and that “at least one of the petitioners resides in sufficient proximity to the Preserve to facilitate that use.” Applying Society of Plastics Industry v. Suffolk County (77 N.Y.2d 761), the Court said that “In land use matters… the plaintiff, for standing purposes, must show that it would suffer direct harm, injury that is in some way different from that of the public at large,” and that standing of an organization could be “established by proof that the agency action will directly harm the association members in their use and enjoyment of the affected natural resources.”
The Court of Appeals agreed, finding it was likely that members of the Save the Pine Bush organization would frequent and enjoy the Pine Bush. They referred to the finding by the United States Supreme Court in Sierra Club v Morton 405 U.S. 727 (1972), agreeing that a “generalized interest in the environment could not confer standing to challenge environmental injury, but that injury to a particular plaintiff “[a]esthetics and environmental well being” would be enough.” Here, the City did not challenge the injuries the petitioners asserted and the court found that the petitioners were able to prove the direct harm to the organization members.
The court, while holding that the petitioners had standing, nonetheless found for the City on the merits. The Court noted that the fact that not all possible potential impacts were studied was not fatal to the City approval of the zoning change. They stated “[w]hile it is essential that public agencies comply with their duties under SEQRA, some common sense in determining the extent of those duties is essential too.”
Save the Pine Bush v. Common Council of the City of Albany, 2009 WL 3425317 (NY 10/27/2009)
The opinion can be accessed at: http://www.nycourts.gov/ctapps/decisions/2009/oct09/134opn09.pdf
These are the sort of rulings that choke development and harm our economy. Essentially, one “advocate” can press environmental objections, which may have zero merit, causing a project to be delayed and making costs sky rocket. These environmental reviews do little or nothing for our environment and are simply a tool of anti-growthers and NIMBYS.
By: Mark Alpert on November 17, 2009
at 11:43 am
I am afraid that the new standard that the Court of Appeals has set forth for standing is overly broad and will lead to a plethora of new litigation. This, of course will have to be determined through case law. It will be interesting to see how the courts decide who uses a particular piece of property “more than most” and if any more specific standards develop about how the petitioner uses the property.
By: Bridget O'Toole on November 23, 2009
at 12:35 am
I disagree. It seems to me that the Court of Appeals is applying a similar standard as that found in Morton. So long Petitioners must show that they frequently use the natural resource or land in questions, they are setting themselves apart from the general population as a special group that would be concretely, adversely affected by development. If this standard was not applied in this case, no court action could be taken by concerned community members that use these natural resources.
By: Joel Lombardi on November 29, 2009
at 6:53 pm