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New York Court of Appeals Expands Criteria for Standing to Bring a SEQRA Challenge

The New York Court of Appeals has held that a person who can demonstrate greater enjoyment of a natural resource than the general public has standing under the State Environmental Quality Review Act (SEQRA) to challenge an action by a governmental entity which may threaten such a natural resource. In Matter of Save the Pine Bush v Common Council of the City of Albany, the Court held that both the individual petitioners and the organization had standing to challenge an action that allegedly threatened certain endangered species within the Pine Bush area. However, the Court also found that Petitioners had failed to prove their case on the merits as the City had examined the major potential impacts and the City “was not required to scrutinize every possible environmental issue, and the failure of the City’s environmental impact statement (EIS) to discuss the possible impact of rezoning on certain rare species was therefore not a fatal flaw.”

The project at issue involved a rezoning for a proposed hotel that would not be in a protected area but is near a protected area which is habitat for the Karner Blue butterfly. The draft scope of the proposed EIS included examination of the potential impacts on the Karner Blue butterfly but no other plant or animal species. In response to the draft scope a number of comments were submitted. Among the comments was one from the New York DEC which discussed the Karner Blue and pointed out that the Karner Blue is in a habitat which is known to support four other “rare or unusual species…Frosted Elfin butterfly, the Hognosed Snake, the Worm Snake and the Eastern Spadefoot Toad.” The DEC asked that the investigation encompass those species as well.

The DEIS was prepared and included a discussion of the Karner Blue butterfly, including a report by a biologist who stated that repeated visits to the site failed to disclose any Karner Blue butterflies at the site. There was no mention of the other species raised in the DEC comments. The DEIS was commented upon by a number of agencies including the DEC. Other than what the court characterized as brief comments on the Frosted Elfin butterfly and a reference to the Adder’s Mouth Orchid (which had not been mentioned previously) there was no mention of the other species previously raised by the DEC.

The report of the biologist was supplemented to respond to comments on the DEIS. He stated the Frosted Elfin butterfly is “‘likely to occur in the same places as Karner blue butterflies’; that the plants on which it is known to feed ‘are absent or rare in the Albany Pine Bush’; and that he observed no Frosted Elfins on the proposed hotel site. He also listed all the plants he observed growing on the site; the Adder’s Mouth Orchid was not among them. Like the commenters on the DEIS, he said nothing about the Hognosed Snake, the Worm Snake or the Eastern Spadefoot Toad.” Thereafter the FEIS was accepted and the zone change was approved.

Petitioners then brought this action under SEQRA. While several causes of action were dismissed, and the Petitioners did not appeal dismissal of those causes of action, on the remaining cause of action, which alleged that he City failed to take a hard look at the potential impacts on species other than the Karner Blue butterfly, both the Supreme Court and Appellate Division found Petitioners had standing and that the City had failed to take a “hard look” at the potential impacts.

The City argued that under the Court’s prior holding in Society of Plastics Industry, Inc. v County of Suffolk (77 NY2d 761 [1991]) that Petitioners lacked standing because the closest of them lives half a mile from the project. Petitioners argued that the Court should either abandon or modify the holding in Society of Plastics. Instead, the majority of the Court reached the conclusion that the prior holding in Society of Plastics supported its finding of standing for the Petitioners.

In an interpretation which appears to differ from that of many courts and commentators since Society of Plastics was decided the Court stated “…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.”

In finding that Petitioners in this case had standing the Court held “people who visit the Pine Bush, though they come from some distance away, seem much more likely to suffer adverse impact from a threat to wildlife in the Pine Bush than the actual neighbors of the proposed hotel development – the owners and occupants of the nearby office buildings and shopping malls. The neighbors may care little or nothing about whether butterflies, orchids, snakes and toads will continue to exist on or near the site. The City asks us to adopt a rule that environmental harm can be alleged only by those who own or inhabit property adjacent to, or across the street from, a project site; that rule would be arbitrary, and would mean in many cases that there would be no plaintiff with standing to sue, while there might be many who suffered real injury.”

The Court went on to say: ” we do not suggest that standing in environmental cases is automatic, or can be met by perfunctory allegations of harm. Plaintiffs must not only allege, but if the issue is disputed must prove, that their injury is real and different from the injury most members of the public face…while we decline to erect standing barriers that will often be insuperable, we are also conscious of the danger of making these barriers too low…Striking the right balance in these cases will often be difficult, but we believe that our rule – requiring a demonstration that a plaintiff’s use of a resource is more than that of the general public – will accomplish that task better than the alternatives.”

Yet, on the merits the Court held that the City had complied with the mandate of SEQRA. Pointing out that while the Karner Blue butterfly had been of major concern and impacts on its habitat had been addressed, with respect to the other species the Court found that while the “DEC did identify them in a letter commenting on the scoping checklist, it offered no particular reason to believe that the project would threaten them, and no other commenter in the SEQRA process mentioned them at all. When they were omitted from the DEIS neither DEC nor anyone else called attention to the omission….While it is essential that public agencies comply with their duties under SEQRA, some common sense in determining the extent of those duties is essential too….That it chose not to investigate some matters of doubtful relevance is an insufficient reason for prolonging the process further, and for adding to the expense. A “rule of reason” (Matter of Jackson v New York State Urban Development Corp., 67 NY2d at 417) is applicable not only to an agency’s judgments about the environmental concerns it investigates, but to its decisions about which matters require investigation.”

Thus, the Court’s decision on the merits should serve as a warning to those challenging a review that they must do more than just raise an issue. Rather, to sustain a challenge under SEQRA they should articulate the basis for the concerns and object to any failure by a lead agency to address those concerns.

Steven M. Silverberg