Standing To Challenge Environmental Reviews At Issue Once Again

New York courts have grappled for many years with the issue of who has legal standing to challenge the environmental review, under New York’s State Environmental Quality Review Act (SEQRA), of proposed development project by a governmental agency (such as local planning board).   This issue has been a contentious one since the Court of Appeals decided Society of Plastics Indus. v. County of Suffolk, 77 NY2d 761 (1991), in which the Court held that a party seeking to challenge an agency’s compliance with SEQRA must first show that it has suffered an injury different from that of the public at large and that such injury is within SEQRA’s “zone of interest.” Numerous cases, many commenced by environmental or citizen groups seeking to challenge the SEQRA review of a proposed project by a local governing board, have grappled with the scope and intent of this Society of Plastics standing rule.  This article briefly highlights two recent cases on this issue.

This summer, in Village of Canajoharie v. Planning Board of the Town of Florida, et al., 63 A.D.3d 1498, (3rd Dept. 2009), the Appellate Division, Third Department, had to address whether the Village of Canajoharie had standing to challenge the environmental review of a proposed manufacturing facility conducted by the Planning Board of the Town of Florida, a town about 20 miles away from the Village. The facts are as follows: Beech-Nut Nutrition Corporation (Beech Nut) decided in 2007 to consolidate its manufacturing and corporate headquarters to a new facility to be located in an industrial park in the Town of Florida.  As a result, Beech-Nut planned to close two existing manufacturing facilities, one of which was the Beech-Nut factory located in the Village of Canajoharie.  In order to undertake this relocation and consolidation, Beech-Nut applied to the Town of Florida Planning Board (Florida Planning Board) for site plan approval. As part of the site plan review, the Florida Planning Board, acting as lead agency, conducted its environmental review of the proposed project pursuant to the detailed requirements of SEQRA.  By May 2008, all approvals were obtained and Beech-Nut commenced construction of its new Town of Florida facility.

The Village of Canajoharie (Village) brought a joint CPLR Article 78 and declaratory ruling proceeding in Montgomery County Supreme Court alleging violations of SEQRA by the Florida Planning Board (as well as General Municipal Law violation relating to financing of the project).  The Village argued, among other things, that the Florida Planning Board violated SEQRA by illegally segmented the review of the relocation project by failing to also look at the environmental impacts of the abandonment of Beech-Nut’s Canajoharie facility and by failing to take the required “hard look” at project alternatives such as “no action” or renovating the Canajoharie facility.  Petitioner’s request for a temporary restraining order and injunctive relief to stop the construction were denied after a hearing. Thereafter, the Supreme Court dismissed the entire petition ruling, among other things, that the Village lacked standing to challenge the Town Planning Board’s SEQRA review.  The Village appealed.

The Third Department first summarized the rules surrounding standing to challenge a SEQRA decision.  Citing Society of Plastics Indus., the Third Department noted that to obtain standing to challenge an agency’s compliance with SEQRA, the challenger must demonstrate that it “sustained an injury in fact different from that of the public at large and one that falls within the zone of interest protected by SEQRA.”  A SEQRA challenger must also show that it will “suffer an injury that is environmental and not solely economic in nature.”  Finally, this Court explained that for a municipality (such as the Village) to obtain standing to challenge a SEQRA determination, it must demonstrate that its rights -- personal or property -- either for itself or in its representative capacity, will be “directly and specifically affected” in a manner different from damage suffered by the public at large.

In examining the Village’s Article 78 petition (in a light most favorable to the Village), the Court found that the Village did not establish that it would “suffer a specific or direct environmental harm as a result of the proposed project.” The Court also stated, in a pointed footnote, that because the Village is about 20 miles away from the proposed project site in the Town of Florida, that the Village is “most certainly not presumptively aggrieved by it.”  Instead, the Court found that the Village only alleged that the shuttering of the Beech-Nut Canajoharie facility would cause general economic harm, such as loss of employment and tax revenue, impacts on housing values and increased tax burden on Village property owners.  Moreover, the Court pointed out that even these solely economic harms do not arise from the Beech-Nut’s proposed new facility in the Town of Florida, but only from Beech-Nut’s decision to shut down all of its operations, including those at the Canajoharie plant, and transfer them to the new location.  Given these factors, the Court ruled that since economic injury alone does not confer standing to sue under SEQRA, the Village lacked standing to challenge the adequacy of the Florida Planning Board’s SEQRA review of the Beech-Nut project.  

As noted above, the Court of Appeals decision in Society of Plastics was critical to the Village of Canajoharie Court’s SEQRA standing analysis.   The Society of Plastics analysis is also the main subject of an important case now before the New York Court of Appeals.  On September 15, 2009, the Court of Appeals heard arguments in the Matter of Save the Pine Bush, Inc. et al. v. Common Council of City of Albany, et al.   This case involves a challenge by Save the Pine Bush, an environmental organization and several individuals to a proposed hotel development near the Albany Pine Bush Preserve.  The petitioners brought an Article 78 proceeding challenging the Albany Common Council’s SEQRA review of the project developer’s rezoning application.  Albany County Supreme Court found that the petitioners had standing (and also found that the Common Council failed to take the requisite ‘hard look’ at the environmental impact of the proposed project on rare plants and animals in the Pine Bush).  The City of Albany and the developer appealed.  The Third Department, in a split 3-2 decision, upheld the Supreme Court’s decision, finding that Save the Pine Bush and the individual petitioners indeed had standing to bring this challenge, based primarily on their unique and long-standing relationship to the Pine Bush (the Court also affirmed that the Common Council failed to take the requisite ‘hard look’). 

Thus, the issue before the Court of Appeals centers on the scope and application of the standing rules, including the “special injury” rule, established by its 1991 decision in Society of Plastics.  A decision in this case is expected soon.  Environmentalists, developers and municipal officials alike anxiously await a ruling on this appeal, hoping that, at the very least, the Court of Appeals will provide litigants with some more direction and clarity on this critical question of who has legal standing to challenge an agency’s environmental review.  I plan on writing a review of the Court of Appeals’ decision in this matter in an upcoming environmental update.