March 15, 2016

In Sierra Club v. Village of Painted Post, et al, 2015 WL 7288109 (Decided November 19, 2015), the highest state court in New York clarified the legal standard for standing to challenge a municipality’s determination of significance under the State Environmental Quality Review Act (SEQRA).

The Village entered into an agreement to sell 314 million gallons of surplus water to SWEPI, LP, a subsidiary of Shell Oil Co. with an option to increase that amount by 500,000 gallons per day.

The Village determined that under SEQRA (6 NYCRR 617.5(c)(25)) the sale of its water was a Type II action which is exempt from review under SEQRA. In a separate resolution the Village approved a lease agreement with respondent Wellsboro & Corning Railroad (Wellsboro) for the construction of a water transloading facility, to be used as a filling station upon which the water would be withdrawn, loaded, and transported via rail line to Wellsboro, Pennsylvania.

The Village determined that the lease with Wellsboro was a Type I action under SEQRA and issued a negative declaration, concluding that the lease would not result in any potentially significant adverse impact on the environment based on a review of a Full Environmental Assessment Form (EAF), a report prepared by engineering consultants to the Village, the site plan prepared for the railroad, and the 2005 deed to the site.

Petitioners including The Sierra Club, People for a Healthy Environment, Inc ., and Coalition to Protect New York, as well as various individual residents of the Village, commenced an Article 78 Petition seeking to, among other things, annul the Village’s Type II determination and negative declaration under SEQRA.

Specifically, petitioners asserted that the Village failed to comply with the strict procedural mandates of SEQRA, particularly that it: (1) failed to consider significant adverse environmental impacts of the water withdrawals, (2) improperly claimed a Type II Exemption for the water sale agreement, and (3) impermissibly segmented its review of the water sale agreement and the lease agreement.

Petitioners opposed the motions, submitting, among other things, an affidavit of petitioner Marvin, who stated that when the water trains began running, he “heard train noises frequently, sometimes every night” and that the “[t]he noise was so loud it woke [him] up and kept [him] awake repeatedly.” Marvin further stated that the “noise was much louder than the noise from other trains that run through the [V]illage” and he was concerned that the “increased train noise will adversely impact [his] quality of life and home value.”

The Supreme Court: (1) granted summary judgment to petitioners insofar as it annulled (a) the Village’s resolutions designating the surplus water agreement as a Type II action, (b) the negative declaration as to the lease agreement, and (c) the Village Board’s resolutions approving the surplus water agreement and the lease agreement; (2) granted petitioners an injunction enjoining further water withdrawals pursuant to the surplus water agreement pending the Village’s compliance with SEQRA; and (3) denied respondents’ motion to dismiss for lack of standing.

With respect to the organization, petitioners and individual petitioners, excepting Marvin, the court determined that they alleged only general harm (i.e. disrupted traffic patterns, noise levels, and water quality) “no different than that experienced by the general public.”

Because Marvin had standing, the Supreme Court did not dismiss the proceeding brought by the other petitioners who did not have standing. On the merits of the petition, the Court held that the Village’s Type II designation of the water sale agreement was arbitrary and capricious and that the Village had improperly segmented the SEQRA review of the lease from the water sale agreement. The Appellate Division reversed, essentially holding that Marvin lacked standing because his alleged injuries were not unique/no different from the public at large.

The Court of Appeals reversed the Appellate Division and remanded the case for a decision on the merits, finding that Petitioner Marvin’s alleged injuries consisting of visual and noise impacts to his residence was a direct injury, “real and different from the injury most members of the public face.” The mere fact that others suffered a similar injury does not compromise Marvin’s standing.  Marvin’s allegation about the noise caused by the increased train traffic keeping him awake at night, even without any express differentiation between the train noise running along the tracks and the noise from the transloading facility, would be sufficient to confer standing, the court held.

Therefore, the Court of Appeals reversed and remanded to the Fourth Department Appellate Division for a decision on the merits.

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