Standing to Challenge State Environmental Quality Review Act Determinations Broadened by New York Court of Appeals

Standing to Challenge State Environmental Quality Review Act Determinations Broadened by New York Court of Appeals

In a recent decision, the New York Court of Appeals affirmed a lower court holding that members of an environmental preservation group had standing to challenge a lead agency’s State Environmental Quality Review Act (“SEQRA”) determination. In the Matter of Save the Pine Bush, Inc. v. Common Council of the City of Albany, the Court affirmed the lower court’s holding that Save the Pine Bush, Inc. (“SPB”) and its members individually, had standing to challenge the City of Albany’s SEQRA determination in connection with the construction of a hotel on a parking lot located near the Pine Bush (a preserve established to protect the habitat of the Karner Blue butterfly). The Court held 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 [SEQRA] to challenge government actions that threaten that resource.”

This Pine Bush decision is widely seen as broadening the scope of standing for SEQRA challenges by environmental and other special interest organizations established in Society of Plastics Industry, Inc. v. County of Suffolk. In Society of Plastics, a trade group, the Society of Plastics Industry, Inc. (“SOP”) and Wittman & Co. (“Wittman”), a Suffolk County corporation and a SOP member, were denied standing to challenge the Suffolk Legislature’s SEQRA negative declaration in connection with a law banning the use of certain plastics in packaging by the retail food industry.

The Society of Plastics decision recognized that legal challenges to SEQRA determinations could be used by “special interest groups or pressure groups, motivated by economic self interests” to slow down or stall approval of projects and noted that that SEQRA challenges “can generate interminable delay and interference with crucial governmental projects.” In Society of Plastics, the Court required a showing of special harm or injury to a petitioner’s relationship with the environment that is “in some way different from that of the public at large[,]” determining that a “direct injury” showing would strike a proper balance between the public’s interest in government action and its interest in adequate environmental review. While the Court denied standing to Wittman and SOP because they did not demonstrate direct harm or injury different from the general public, the Court opined that Suffolk residents residing proximate to the landfills would be directly affected by potential changes in truck traffic to these landfills caused by the plastics ban and would suffer “special harm” sufficient to have standing to initiate a SEQRA challenge.

The general rule in SEQRA challenges was that a presumption of standing existed for those who either own property or reside in proximity to a proposed site. In connection with organizational standing, an organization’s dedication to environmental preservation or a member’s use of the project site was not sufficient.

This premise was modified by the State’s Appeals Court in Pine Bush. While the lower court’s Pine Bush decision loosely fit proximate residency into its holding by stating that SPB’s members presented “evidence “that . . . at least one of [the members] resides in sufficient proximity to the Preserve to facilitate that use [of the Preserve].” the Court of Appeals disregarded any need for proximity to the project site as a prerequisite for standing by saying that “Society of Plastics does not hold, or suggest, that residence close to a challenged project is an indispensable element of standing in every environmental case.” The Court granted standing to SPB and its members because the members alleged that they repeatedly enjoyed the “unique habitat” of the Pine Bush and used the area for recreation and education. The Court found that this repeated use by the SPB’s members demonstrated that the harm complained of by the petitioners was greater than the general public as a whole.

The Pine Bush decision brings NY in line with rules adopted by the federal courts. The federal courts confer standing upon plaintiffs that have alleged injuries to their “[a]esthetic and environmental well being,” but deny standing where there is only a generalized interest in the environment and no allegation of injury to the plaintiffs by the proposed project. The Court also reiterated that its holding does not allow for automatic standing in environmental cases, but that a petitioner must allege and prove that their injury is re al and different from the public at large.

In conclusion, time will tell whether this decision, which appears to open the door wider for organizational challenges to SEQRA, will hinder the Court’s desire to discourage the wrongful use of SEQRA litigation solely to delay important projects and undermine its goal of maintaining a proper balance between the public’s interest in government action and its interest in adequate environmental review.

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