In the August 2010 issue of Earth Matters, we reported on the Court of Appeals’ decision in Matter of Save the Pine Bush v. Common Council of City of Albany, 13 N.Y.3d 297 (2009) (“Save the Pine Bush”), which liberalized the standing requirement for litigants who sought to challenge a determination of a state or local agency under the State Environmental Quality Review Act (SEQRA). Prior to Save the Pine Bush, litigants generally had to reside very near, if not adjacent to, the proposed project in order to show the necessary “harm” to establish standing to sue (in plain English, its right to sue). Save the Pine Bush broadened the standing rule to allow lawsuits by litigants who may be able to demonstrate harm by showing that they use a particular resource more than the general public. (For example, in Save the Pine Bush, the petitioners alleged that they used the Albany Pine Bush to “study and enjoy the unique habitat found there,” so that they had standing to challenge the SEQRA review for a nearby hotel project). Save the Pine Bush, 13 N.Y.3d at 305. Exactly how far Save the Pine Bush will liberalize standing requirements remains an open question to be resolved as future courts apply Save the Pine Bush to the facts before them.
The Appellate Division, Third Department, provided at least one common sense limitation on Save the Pine Bush in the recent case of Matter of Finger Lakes Zero Waste Coalition, Inc. v. Martens, 95 A.D.3d 1420 (3d Dep’t 2012) (“Zero Waste”). Essentially, Save the Pine Bush will not apply where there is no allegation of harm to an impacted environmental resource used by the challenger.
In Zero Waste, the petitioner challenged the New York State Department of Environmental Conservation’s modification of the existing operating permit for the Ontario County Landfill to allow for a soil borrow area. For purposes of standing, Zero Waste relied on one of its members whose property was located approximately 4,000 feet away from the soil borrow area. Zero Waste, 95 A.D.3d at 1421-22. The Supreme Court, Albany County (Devine, J), dismissed the petition for lack of standing. On appeal, Zero Waste relied on Save the Pine Bush to support its claim of standing. In rejecting that argument, the Third Department clarified the applicability of Save the Pine Bush, stating that:
“THE COURT OF APPEALS DID NOT REMOVE THE REQUIREMENT THAT A MEMBER OF THE ORGANIZATION SEEKING STANDING EXPERIENCE ACTUAL HARM, BUT, RATHER, HELD THAT SUCH HARM CAN BE PROVEN BY A DIRECT INTERFERENCE WITH AN INDIVIDUAL’S ABILITY TO EXPERIENCE AND ENJOY A NATURAL RESOURCE, EVEN IF THAT INDIVIDUAL DOES NOT LIVE IN CLOSE PROXIMITY TO THAT RESOURCE, SO LONG AS THE INDIVIDUAL CAN DEMONSTRATE THAT HE OR SHE REGULARLY USES THE AREA TO BE IMPACTED.”
ZERO WASTE, 95 A.D.3D AT 1422 N.1.
Since Zero Waste had not alleged that its members “used” the Ontario County Landfill in the sense of an “environmental resource,” it could not rely on Save the Pine Bush to establish standing. Zero Waste is a useful precedent for project developers and permitting agencies to answer the increasingly common claim that Save the Pine Bush eliminated the requirement to plead and prove direct injury.
This article was written by Thomas F. Puchner, Associate in the Phillips Lytle Energy and Environment Practices. Questions pertaining to this article, or any other Environment or Energy matter, can be directed to Tom at (518) 472-1224 ext 1245 or email@example.com.