Judges Reject Residency Rule In Determining SEQRA Standing

By Joel Stashenko
New York Law Journal
October 28, 2009

ALBANY - Standing to challenge the environmental impact of a proposed development need not be confined to residents or neighbors of the area where the project would be located but can be extended to any avid users of the affected property, the Court of Appeals suggested yesterday.

The proper course, the Court determined in Matter of Save the Pine Bush, Inc. v. Common Council of the City of Albany, 134, is to make plaintiffs prove standing by showing they have an interest that is greater than the general public's at large in using and enjoying the resource at risk.

The Court of Appeals decision appears on page 25 of the print edition of today's Law Journal.

"Striking the right balance in these cases will often be difficult, but we believe that our rule—requiring a demonstration that a plaintiff's use of a resource is more than that of the general public—will accomplish that task better than the alternatives," Judge Robert S. Smith wrote for the Court.

The judges observed that they were neither seeking to erect barriers to standing that were so "insuperable" that virtually no one could challenge a project under the State Environmental Quality Review Act (SEQRA) nor so elastic that the act could be used to cause "interminable" delays.

The judges ruled in a case involving the proposed construction of a 124-unit hotel on 3.6 acres of commercially zoned property in Albany County. The property is near, but not in, the Pine Bush reserve, a unique wildlife habitat containing the largest remaining pine barrens on inland sand dunes in the United States.

While granting standing to project opponents, the Court ruled that the city of Albany had met its obligations under SEQRA.

The case has been watched carefully by environmentalists and government regulators, especially for how the Court would interpret a major precedent in SEQRA jurisprudence, Society of Plastics Industry, Inc. v. County of Suffolk, 77 NY2d 761 (1991).

Environmentalists have argued that many courts have used Society of Plastics to preclude SEQRA suits filed by plaintiffs who did not live close to the natural resources where environmental harm was being alleged.

Judge Smith stressed that the Court was not departing from Society of Plastics but that its ruling granting the Pine Bush plaintiffs standing is consistent with that 18-year-old ruling.

In Society of Plastics, the Court held that for standing purposes, a plaintiff has to show it "would suffer direct harm" and an injury that is in "some way different from that of the public at large."

"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," Judge Smith wrote.

The Court rejected the city of Albany's argument that the plaintiffs in the Pine Bush case had to either live in the land preserve, or next to or across the street from the protected land. The closest plaintiff in the case before the Court yesterday lives a half-mile away.

"That [residency] rule would be arbitrary, and would mean in many cases that there would be no plaintiff with standing to sue, while there might be many who suffered real injury," Judge Smith concluded.

While affirming an Appellate Division, Third Department, panel on the standing question (NYLJ, Oct. 10, 2008), the Court nevertheless dismissed the Save the Pine Bush group's challenge to the city of Albany's approval of the hotel project plans under SEQRA.

Save the Pine Bush had argued that the environmental review failed to take into account the hotel's impact on the Pine Bush reserve and on several plant and animal species in the pine barren, including the Karner Blue butterfly, the Hognosed snake, the Worm snake, the Eastern Spadefoot toad, the Frosted Elfin butterfly and the Adder's Mouth orchid.

A government agency seeking to comply with SEQRA need not "investigate every conceivable environmental problem" associated with a project, but must pass judgment on those it deems "relevant" within "reasonable limits." the Court held.

"While 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," Judge Smith wrote.

Echoing concerns he raised last month during oral arguments (NYLJ, Sept. 16), Judge Smith noted yesterday that scientists have described the extremely elusive nature of the Worm snake and the Eastern Spadefoot toad and how "formidable" a task it would be to gather conclusive evidence about their use of the Pine Bush habitat and the hotel's effect on them.

The final result in yesterday's case was joined by all seven judges but two issued a concurring opinion objecting to what they called a broadening of the standing rule.

'Special Harm' Contested

Judge Eugene F. Pigott Jr. and Judge Susan Phillips Read said they agreed that the Pine Bush project was properly approved under SEQRA. But they argued that the plaintiffs did not suffer "special harm" to give them standing under Society of Plastics or its progeny.

"The majority's holding, in my view, reinterprets much too broadly the special harm requirement that has been the cornerstone of our standing jurisprudence in land use cases," Judge Pigott wrote in the opinion joined by Judge Read.

The plaintiffs' claim they are injured by the loss of recreation and enjoyment in the Pine Bush case are not unique enough to give them standing, Judge Pigott held.

"The concerns of the petitioners amount to the same general concerns of the community as a whole and are not specific to the petitioners," the concurring judges agreed. "In short, because petitioners fail to specify any direct injury that is any different from that of the general public, they lack standing under our precedent."

An environmental law expert, Michael B. Gerrard of Arnold & Porter, said environmentalists and municipal planners have been waiting nearly two decades for a clarification from the Court of Appeals of the Society of Plastics ruling.

"That had been interpreted by many lower courts as strictly narrowing the right to standing in SEQRA cases," Mr. Gerrard said yesterday. "The Court of Appeals has now greatly broadened the conception of standing."

Mr. Gerrard, who was not involved in the Pine Bush litigation, said he also found "remarkable" the Court's reliance on a U.S. Supreme Court precedent in Sierra Club v. Morton, 405 US 727 (1972).

In that ruling, the Supreme Court held that a plaintiff gained standing by demonstrating injury to the "aesthetic and environmental well-being" of a resource rather than showing a generalized "interest" in the environment.

Mr. Gerrard said the Supreme Court was generous in the early 1970s about granting standing to environmental plaintiffs but has narrowed grounds for standing, especially since Justice Antonin Scalia joined the Court in 1986.

"The '72 ruling was never explicitly overturned, but the spirit of the subsequent decisions was far different," said Mr. Gerrard, who writes a column for the New York Law Journal.

Stephen F. Downs, a retired attorney from Selkirk who represented the plaintiffs pro bono, said the case was a "perfect" one from his standpoint in that no one, even in arguments before the Court of Appeals, suggested that the motivations of Save the Pine Bush or its members were financially driven and not based on preservation of the habitat.

"I am thrilled with the standing argument," Mr. Downs said yesterday. "I think it is a huge victory for standing, for getting the public involved again in these cases."

Mr. Downs said the Sierra Club provided valuable assistance in lining up amici curiae support for Save the Pine Bush's position.

Albany Corporation Counsel Jeffrey V. Jamison argued for Albany. He said he agreed with the Court that the city had taken the requisite "hard look" required under SEQRA at the environmental effects of the hotel project.

But Mr. Jamison said he was troubled by the Court's ruling on the standing question. The city has been sued nearly two dozen times by Save the Pine Bush alone for various projects in and around the reserve over the past three decades, he said, and has been worried about a broadening of Society of Plastics that could open what he called the "flood gates" of litigation by interest groups.

Mr. Jamison said it was unclear whether the North Dakota-based developer of the hotel would move forward with the project, which was first proposed in 2003.

Assistant Solicitor General Andrew B. Ayres appeared on behalf of the Department of Environmental Conservation.

The state agency, which rarely takes sides in litigation not involving the department directly, had urged in a amicus curiae brief that the Society of Plastics ruling has been interpreted too narrowly and that some plaintiffs with bona fide interests in the environment have been barred from pursuing claims on standing grounds.