Brandon Gillin

November 13, 2009

On October 27, 2009, the New York Court of Appeals issued what could result in a significant victory for environmental groups with regard to the highly contentious issue of standing.

The New York high court ruled that a person who is able to prove that he or she uses and enjoys a natural resource more than other members of the public has standing under New York's State Environmental Quality Review Act (SEQRA) to bring suit against entities which threaten that resource.

Save the Pine Bush, Inc. is an environmental group "dedicated to saving the Albany Pine Bush and Karner Blue habitat in New York State, a globally rare ecosystem in New York State. [It] stop developers by suing the government using environmental laws." Save the Pine Bush, Inc. brought suit challenging the City of Albany's approval of a rezoning application for a 3.6-acre piece of property near a known butterfly habitat, and alleging violations of SEQRA. The City of Albany filed a motion to dismiss, alleging that Save the Pine Bush, Inc. lacked standing. The New York Supreme Court, Albany County, denied the city's motion to dismiss. The Supreme Court, Appellate Division, affirmed. The city appealed.

The Court of Appeals ruled that the environmental organization and its members retained standing to bring the suit. However, the court ultimately ruled in favor of the city and concluded that the environmental organization's challenge failed on the merits.

A development company sought to construct a hotel on the 3.6-acre plot of land in Albany. The plot, although it was a parking lot, was zoned as residential. The city sought to rezone it as commercial in order for the hotel to be built. The Common Council of the City of Albany determined that an Environmental Impact Statement (EIS) be prepared. The EIS was to examine water resources, transportation and traffic, terrestrial and aquatic ecology, and the habitat of the Karner Blue butterfly. "Butterfly Hill" is an area near to the proposed site of the hotel that is habitat to the endangered Karner Blue butterfly. The Department of Environmental Conservation (DEC) sent a letter to the city which emphasized that four other important species live near to the lot, and should be included in the city's investigation: the Frosted Elfin butterfly, the Hognosed Snake, the Worm Snake, and the Eastern Spadefoot Toad.

The City accepted a Draft EIS (DEIS) in March 2005, which contained more than 500 pages of analysis. The DEIS included an analysis of the Karner Blue butterfly, but none of the other species mentioned by the DEC. The DEIS also included a report given by a biologist, Dr. Richard Futyma, who concluded, after visiting the plot of land several times, that the site "does not constitute a significant resource for the Karner blue butterfly."

The final EIS was approved by the City in November 2005, and approved the zoning change a month later. Save the Pine Bush, Inc. initiated this lawsuit in March 2006, challenging the City's action under SEQRA. Save the Pine Bush, Inc. alleged that they "live near the site of the hotel project," and that they "use the Pine Bush for recreation and to study and enjoy the unique habitat found there." Save the Pine Bush, Inc. brought forth nine separate causes of action, eight of which were dismissed. The remaining cause of action was that the EIS was deficient for failing to evaluate possible threats to the other species mentioned to inhabit the area.

The Court of Appeals reasoned that Save the Pine Bush, Inc. has standing under principles articulated in Society of Plastics Industry, Inc. v. County of Suffolk, 77 N.Y.2d 761 (1991). In Society of Plastics, the court held that a plaintiff, to have standing, "must show that it would suffer direct harm, injury that is in some way different from that of the public at large." The plaintiffs here, according to the Court of Appeals, meet the Society of Plastics test because they proved that they use the site repeatedly, not in rare or isolated instances, which differs from the use from the public at large. The court noted that the plaintiffs "here make the allegation that was missing in Sierra Club [v. Morton, 405 U.S. 727 (1972).]."

The Court of Appeals ultimately reversed the courts below, and found that the merits of the claims brought by Save the Pine Bush, Inc. failed. The Court concluded that the record indicated that the City did not abuse its discretion by acting arbitrarily in omitting a detailed analysis on the other species found in the area.

This case suggest that environmental groups, when faced with plausible causes of action, may have an easier time overcoming the barrier of establishing standing to bring those causes of action to the courts. Most environmental groups exist for the purpose of achieving a few, specified goals. Those goals commonly are in the form of preservation or conservation of some natural resource. The nature of environmental groups' interest in those specified interests will almost always be one in which is greater than that of the general public. One major implication arising out of this case is that, given the relative ease with which environmental groups can prove that they use or enjoy certain resources more than the general public, and are able to prove it, there will be less of a burden on the part of environmental groups to get their foot in the courtroom door—all that remains is the ability to sustain viable causes of action, which, as this case illustrates, remains difficult.

Sources:

Save the Pine Bush, Inc. v. Common Council of City of Albany, 2009 WL 3425317 (N.Y. 2009), available at http://www.nycourts.gov/ctapps/decisions/2009/oct09/134opn09.pdf.

Jessica Steinberg, 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, Sive, Paget & Riesel, PC Blog, available at http://blog.sprlaw.com/2009/10/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(last visited on Nov. 11, 2009).

Save the Pine Bush, Inc.

http://www.savethepinebush.org (last visited on Nov. 11, 2009).

Save the Pine Bush, Inc. v. Common Council of City of Albany, 865 N.Y.S.2d 365 (2008).

Save the Pine Bush, Inc. Petition, available at http://www.savethepinebush.org/Cases/Landfill/Verified_Petition.pdf(last visited on Nov. 11, 2009).

Amicus Briefs, available at http://www.savethepinebush.org/Cases/Hotel/Amici_Curiae_Relief_Hotel.pdf(last visited on Nov. 11, 2009).