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.
- A copy of the decision is available here
- Read more on SEQRA and environmental impact review issues
