Court of Appeals Revisits SEQRA Standing Rules

In Matter of Save the Pine Bush, Inc. et al. v. Common Council of City of Albany, et al., 13 N.Y.3d 297 (2009), the Court of Appeals outlined the legal standard to establish legal standing to challenge an agency’s environmental review pursuant to State Environmental Quality Review Act (SEQRA). As explained in my October 2009 Environmental Update, the issue of standing has been a contentious one since the 1991 Court of Appeals’ decision in Society of Plastics Indus. v. County of Suffolk, 77 NY2d 761 (1991). In that case, the Court held that in order to establish standing to challenge an agency’s compliance with SEQRA a party must show that it had 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, challenging the SEQRA review of a proposed project by a local governing board, have grappled with the scope and intent of the Society of Plastics standing rule.

Save the Pine Bush arose out of an Article 78 proceeding challenging the SEQRA review by the Albany Common Council (the City) of a hotel developer’s rezoning application. In 2003, Tharaldson Development Company, applied for the rezoning of a small lot in Albany, New York, as the first step in proposed hotel development project. The property was not within the Albany Pine Bush Preserve but was situated near protected areas, including the Karner Blue butterfly habitat area know as Butterfly Hill.  The City, as the lead agency, required the preparation of an Environmental Impact Study (EIS). As a result of the SEQRA scoping process, the EIS was to include a review of potential environmental impacts of the proposed project on the Karner Blue butterfly.  The Department of Environmental Conservation stated that, in addition to the Karner Blue butterfly, the biological investigation portion of the EIS should include an evaluation of potential impacts to four other “rare and unusual” species: the Frosted Elfin butterfly, the Hognosed Snake, the Worm Snake and the Easter Spadefoot Toad.  Comments on the Draft EIS (DEIS) by the Albany Pine Bush Preserve Commission also briefly referred to the Adder’s Mouth Orchid as a potentially impacted species. A 2005 report on a supplemental evaluation which was conducted to address the DEIS comments examined the Frosted Elfin butterfly and Adder’s Mouth Orchid, but made no reference to the Hognosed Snake, the Worm Snake and the Easter Spadefoot Toad.

Subsequently, in late 2005, the City accepted the Final EIS and approved the requested rezoning change. In March 2006, Save the Pine Bush, an environmental organization, and several of its individual members, commenced an Article 78 proceeding challenging the Common Council’s SEQRA review. Petitioners alleged that the Common Council failed to adequately evaluate the need to protect the Karner Blue butterfly and that the EIS did not evaluate potential impacts to the Frosted Elfin butterfly, the Adder’s Mouth Orchid, the Hognosed Snake, the Worm Snake and the Easter Spadefoot Toad.

In order to establish standing to bring this Article 78, the individual petitioners alleged that they lived near the proposed hotel site and that they “use the Pine Bush for recreation and to study and enjoy the unique habitat found there.” The Albany County Supreme Court found that the petitioners indeed had standing to bring this proceeding and also ruled in petitioners’ favor on the merits. Though the EIS gave attention to the Karner Blue and Frosted Elfin butterflies, the Supreme Court found that the City failed to take the requisite ‘hard look’ at the environmental impact of the proposed project on the other rare plants and animals noted above. The City and the developer appealed.

The Appellate Division, Third Department, in a split 3-2 decision, upheld the Supreme Court’s decision. The Court affirmed that that Save the Pine Bush and the individual petitioners had standing to bring this challenge. The Court declared that the evidence that the individual petitioners regularly use the Pine Bush preserve and that at least one resided in “sufficient proximity to the Preserve to facilitate that use”, was sufficient to establish standing. The Court affirmed the Supreme Court’s determination that the City failed to adequately examine the potential impact of the proposed project on species other than the Karner Blue butterfly. The two dissenters would have dismissed the petition for lack of standing. The City appealed as of right to the Court of Appeals.

The Court of Appeals looked at both the standing question and the lower courts’ ruling on the merits. As to standing, the Court reviewed its earlier decision in Society of Plastics, focusing on its holding that a plaintiff must (1) show that it would suffer a direct harm but one that is different from the public at large and (2) for cases involving environmental harm, organizational standing is established by showing that the agency action will “‘directly harm association members in their use and enjoyment of the affected natural resource’.” The Court made clear 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 rejected as arbitrary the City’s position that environmental harm can only be alleged by those who own or live at property adjacent to or across the street from the proposed project. Instead, the Court adopted the rule that injury to a particular plaintiff’s “aesthetic and environmental well-being” would be enough to establish standing to challenge a SEQRA determination. The Court thus found that the petitioners had standing because the individual petitioners and members of the Save the Pine Bush are people who frequently visit and enjoy the Pine Bush Preserve.

The Court was quick to point out, however, that standing in environmental cases is not automatic nor can it be “met by perfunctory allegations of harm.” Plaintiffs must allege and, if standing is disputed, prove that their injury is a real one and different than that which most members of the public face. Standing requirements, the Court opined, are more than mere pleading rules but an “indispensable part” of a plaintiff’s case. The Court stated that by setting a rule that a plaintiff must prove that its use of the resource is more than that of the general public will help achieve a balance between making standing barriers too high for any party to meet and concerns that these types of challenges can cause delays and burdens upon applicants in these proposed projects.

While affirming the lower court’s decision the petitioners had standing, the Court of Appeals reversed the lower courts’ decision on the merits. The Court found that the City had, in fact, done enough to investigate and evaluate the potential environmental impacts. Here the Court found that the City had done a sufficient job looking at the possible threats to the Karner Blue butterfly and, in the supplement to the DEIS, did an adequate evaluation of threats to the Frosted Elfin butterfly and the Adder’s Mouth Orchid.
The Court further opined that a lead agency in its SEQRA review does not need to investigate every conceivable environmental problems and may “within reasonable limits, use its discretion in selecting which ones are relevant. Thus, even though there was nothing in the record to show that the City investigated the Hognosed Snake, the Worm Snake or the Eastern Spadefoot Toad, the Court did not think the City acted arbitrarily in omitting them from its environmental impact investigations. The Court stated that while an agency’s duty to comply with SEQRA is “essential,” the Court also stated that some common sense in deciding the scope of that duty was also essential. A “rule of reason” applies, the Court declared, not only to an agency’s judgments about the environmental concerns it investigates but also to its decisions about what issues actually require investigation.

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