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October 29, 2009

Court of Appeals Confirms Right of Standing In Environmental Cases Where Petitioners Establish Repeated Recreational Use Of A Natural Resource Greater Than The Public At Large

By: Jessica Albin — Filed under: Citizen Suits, Environmental Impact Review, SEQRA — Posted at 10:34 am

On October 27, 2009, the New York State Court of Appeals held that individuals who can prove that they use and enjoy a natural resource frequently for repeated recreational use, more so than the public at large, may have standing under the State Environmental Quality Review Act (“SEQRA”) to challenge government actions that threaten that resource.  In Save the Pine Bush v. Common Council of the City of Albany (“Pine Bush“), Save the Pine Bush and nine of its members brought an action under SEQRA challenging the City of Albany’s (the “City”) acceptance of a Final Environmental Impact Statement (“FEIS”), which concluded that the proposed rezoning of a 3.6 acre parcel to allow construction of a hotel would not have a significant impact on the Karner Blue butterfly or its habitat.  Petitioners argued that they had standing because they lived near the site of the hotel project and used the Pine Bush for recreation and to study and enjoy its unique habitat. The closest petitioner lived approximately one-half mile from the Pine Bush.

The Court held that petitioners met the test for standing outlined in Society of Plastics Industry, Inc. v. County of Suffolk, 77 N.Y.2d 761 (1991) (“Society of Plastics”), where the court held that the standing of an organization is “established by proof that agency action will directly harm associate members in their use and enjoyment of the affected natural resources.”   This harm must be “different from that of the public at large.”  Id. at 774.  Society of Plastics has often been cited for the proposition that adjacent property owners or occupants may suffer harm for standing purposes, because in that case petitioners argued standing based on their adjacent property.  However, in Pine Bush, petitioners alleged harm based on repeated use of the natural resources at issue for recreation, at a level greater than that of the public at large.  The Court held that petitioners demonstrated that their injury was real and different from the injury faced by the public at large.  The Court refused to adopt a rule, proposed by the City, that only those who own or inhabit property adjacent to, or across the street from, a project site may allege environmental harm.

However, the Court dismissed the petition on its merits, holding that an agency complying with SEQRA does not have to investigate every conceivable environmental problem.  The City had discretion, within reasonable limits, to determine which environmental issues were relevant.  The City took the requisite hard look at the potential adverse impacts on the Karner Blue butterfly, and its decision not to consider the potential impacts on other species (i.e., the frosted elfin butterfly, hognosed snake, worm snake, and spadefoot toad), “matters of doubtful relevance,” was within the City’s judgment.

This ruling provides further guidance on standing requirements for citizens under SEQRA and potentially other environmental claims.  New York’s highest court has made clear that a petitioner may establish standing based on repeated, frequent recreational uses of a resource, which expose them to injury that is different from the public at large.  As noted by the Court of Appeals in its decision, this route to establishing standing is similar to existing standing law in the federal courts, where injuries to recreational interests are recognized as a cognizable basis for standing.  However, Court of Appeals was also cognizant of setting the barriers to standing too low, noting that SEQRA challenges “can generate interminable delay and interference with crucial government projects.”  Id., slip. op. at 10.  Petitioners, the Court noted, will have to do more than make “perfunctory allegations of harm” – each element must be supported by proof as with all matters where the burden falls to the petitioner.  It remains to be seen whether in practice this ruling will result in a significant widening of the courthouse door for petitioners alleging environmental harms.

October 23, 2009

Fifth Circuit Reverses Dismissal of Climate Change Lawsuit Alleging Damages From Hurricane Katrina

By: Jeffrey B. Gracer — Filed under: Citizen Suits, Climate Change Law, Emerging Issues — Posted at 11:15 am

On October 16, the Fifth Circuit Court of Appeals held that residents and owners of property along the Mississippi Gulf coast had standing to assert public and private nuisance, trespass, and negligence claims against several energy, oil and chemical companies for emissions of greenhouse gasses, and that none of those claims presented nonjusticiable political questions.  In its holding the appellate court reversed the trial court’s dismissal of the putative class action, which alleged that the companies’ greenhouse gas emissions contributed to global warming, caused a rise in sea levels, and added to the ferocity of Hurricane Katrina, causing extensive property damage.  The Fifth Circuit’s decision follows closely on the heels of the Second Circuit’s recent decision in State of Connecticut et al. v. American Electric Power Company Inc. (“CT v. AEP”) holding that several states, New York City and private land trusts can seek injunctive relief against power companies to limit greenhouse gas emissions.   Both of these decisions rejected earlier district court decisions that declined to hear climate change cases based on arguments that plaintiffs lack standing to sue for such a broad injury or that climate change cases present non-justiciable political questions.

Now that two courts of appeal have held that the federal courts are open for climate change claims, the battle lines will shift to issues that typically arise during later stages of litigation, including (1) whether plaintiffs will be able to establish a causal connection between the defendants’ greenhouse gas emissions and the specific harms they have suffered, (2) whether defendants (if held liable for money damages) should be assessed the full cost of harm or only their proportionate share of the total harm caused by all greenhouse gas emitters,  (3) whether and how courts will fashion injunctive relief that includes mandatory reductions in emissions, and (4) whether claims of this type can proceed as class actions.  The prospect of further litigation around these issues, as well as continued efforts by EPA to regulate greenhouse gases, will intensify efforts by companies to seek a comprehensive solution in Congress.

Just before the Fifth Circuit issued its decision, the United States District Court of the Northern District of California dismissed an action by the Eskimo Village of Kivalina against 24 oil and energy companies seeking $95-400M in damages for flooding and relocation impacts associated with global climate change.  It remains to be seen whether the Ninth Circuit will join the Second and Fifth Circuits, reverse the district court, and uphold the right of the Kivalina plaintiffs to seek relief in federal court, but that outcome seems well within the range of possibility.

Many of the concerns raised by the district court in Kivalina, however, are likely to play out in all of these litigations, even if the cases are not dismissed at the initial stages on standing or political question grounds.  For example, the Kivalina court rejected plaintiffs’ argument that federal courts could properly rely on standards developed in earlier air and water pollution cases, finding that prior cases involved impacts to geographically defined watersheds and airsheds, where there was a finite set of polluters contributing to the problem.  By contrast, because the impacts of greenhouse gas emissions have no geographic constraints, the number of parties potentially responsible for climate change is essentially infinite.

The Kivalina court also expressed concern that plaintiffs would not be able to plead or prove that the “defendants’ conduct caused the plaintiffs’ injury in fact.”   It concluded that the Kivalina plaintiffs could not plead or prove that any of the defendant’s polluting sources were the “seed of the injury” suffered by plaintiffs.  A concurring opinion in the Fifth Circuit opinion also expressed considerable sympathy for defendants’ argument that the complaint “did not allege facts that could establish that the defendants’ actions were the proximate cause of the plaintiffs’ alleged injuries.”  It remains to be seen how, on remand, the federal district courts in the Second and Fifth Circuits address this question.  It may be difficult for plaintiffs to show that a particular greenhouse gas emission is the proximate cause of a particular injury, at least under a conventional proximate cause analysis.  Faced with the near certainty that greenhouse gases are causing serious harm, however, the courts may approach the causation issue in a more pragmatic and less formalistic fashion.  The Kivalina court stated strongly that it was unwilling to impose a form of enterprise liability on defendants, but one thing is certain – the Second and Fifth circuits have held that these claims should go forward.

October 12, 2009

Daniel Riesel Inducted into American College of Environmental Lawyers

By: Ashley S. Miller — Filed under: Announcements — Posted at 5:21 pm

Daniel Riesel was recently inducted into the American College of Environmental Lawyers (ACOEL), a professional association of distinguished private and public sector lawyers who practice in the field of environmental law.  Membership is by invitation only; members are recognized by their peers as being preeminent in their field.  ACOEL members seek to maintain and improve the ethical practice of environmental law, the administration of justice, and development of environmental law at both the state and federal level.

October 6, 2009

Kerry-Boxer Climate Change Bill Introduced in Senate As EPA Prepares to Regulate Stationary Sources

On September 30, Sens. Barbara Boxer (D-CA) and John Kerry (D-MA) introduced their long-anticipated global warming bill, a counterpart to legislation passed by the House of Representatives last June.  As the starting point for the Senate climate debate, the Clean Energy Jobs & American Power Act (S. 1733) would cap greenhouse gas emissions from approximately 7,500 power plants, industrial facilities and other covered sources at 20 percent below 2005 levels by 2020, and 83 percent below 2005 levels by 2050.  The Senate bill proposes more aggressive reductions of greenhouse gas emissions than the House bill (20 percent by 2020 as opposed to 17 percent in the House bill), and would provide EPA with broader authority to regulate greenhouse gas emissions than is contemplated in the House bill.

Senate consideration of the Kerry-Boxer bill is unfolding against a continued credible threat from EPA to regulate greenhouse gases under the existing Clean Air Act if Congress does not enact more comprehensive legislation.  After finalizing its greenhouse gas reporting rule, last week EPA took another significant step by announcing proposed greenhouse gas regulations that would apply to thousands of stationary sources, mostly power plants and industrial facilities (full text available here in PDF).   This EPA rule, coupled with the heightened prospect of climate change litigation arising from a recent Second Circuit decision upholding common law nuisance actions against electric utilities, creates strong incentives for industry to seek a comprehensive solution from Congress.

The Kerry-Boxer bill remains subject to revision by various committees and lawmakers over the months ahead.  We will provide updates as it moves through the Senate, beginning with this analysis of the bill’s impacts on New York.  As one of the first states to cap global warming pollution through the 10-state Regional Greenhouse Gas Initiative (RGGI), New York has a large stake in federal climate policy.

Like the House bill, the Senate proposal would preempt state cap-and-trade climate programs, and would most likely also preempt regional cap-and-trade programs, including RGGI, for the first five years of its national emissions trading system.  In a new provision, however, the Kerry-Boxer bill  provides that if the federal program is delayed beyond its scheduled 2012 start date, preemption would not kick in until “at least 9 months from the first [national] auction” of greenhouse gas allowances.

New York City also has developed its own climate policies, including a plan to reduce transportation emissions by phasing in a more efficient, all-hybrid taxi fleet.  The U.S. District Court for the Southern District of New York twice rejected those policies as preempted by federal law, but the Senate climate bill incorporates a proposal to effectively overturn those rulings and authorize the city’s plans suggested by New York Sen. Kirsten Gillibrand and Rep. Jerrold Nadler.

Finally, various sections of the Kerry-Boxer bill provide state and local governments with grants, free emissions allowances, and other incentives to promote water conservation, energy-efficient building retrofits, renewable energy and more.  Many of these opportunities require advanced planning, so state and local officials can begin positioning themselves to take advantage of this developing climate policy today.

More on the bill, and the broader climate debate, to follow.

We gratefully acknowledge the valuable assistance of Jonathan Kalmuss-Katz, 2009 summer associate at SPR, in drafting this article.

October 5, 2009

Natural Gas Drilling in New York: DEC Releases Draft Environmental Impact Statement, Public Comment Period Opens

The New York State Department of Environmental Conservation (“DEC”) has released its draft Supplemental Generic Environmental Impact Statement (“SGEIS”) for natural gas drilling activities in the Marcellus Shale formation.  The draft SGEIS supplements the existing 1992 Generic Environmental Impact Statement (“GEIS”) and analyzes the range of potential significant adverse environmental impacts of shale gas development using horizontal drilling and high-volume hydraulic fracturing known as “hydrofracking”. The draft SGEIS outlines safety measures, protection standards, and mitigation strategies that operators would have to follow to obtain permits.

The City of New York has a particular interest in the SGEIS because the Marcellus Shale formation underlies a significant part of the Catskill watershed which provides much of the City’s drinking water supply.  Erosion, runoff, and possible contamination of groundwater with toxic chemicals are just three of the potential dangers highlighted in a report prepared for the City by environmental consultants Hazen and Sawyer/Leggette, Brashears and Graham.  This report, available here in PDF, found that in addition to construction-related surface water impacts, the presence of a wellbore can “allow previously isolated contaminants to flow into shallow groundwater or surface water.”  The SGEIS would allow drilling within a few hundred feet of reservoirs, with some mitigation safety measures in place.  This would include the need for a site-specific State Environmental Quality Review Act (“SEQRA”) review in certain instances.  Use of hydrofracking in locations outside of New York is thought to have contributed to groundwater contamination, with further investigations underway.

DEC is accepting public comments on the SGEIS from now until November 30, 2009.  Mayor Bloomberg hasn’t yet given the City’s comments, nor the City’s overall position on the State’s plan, but has said he’ll do everything in his power to keep reservoirs safe.