STATE OF NEW YORK

([ourt of ~ppeaI5 APL-2014-00266

In the Matter of the Application of SIERRA CLUB, PEOPLE FOR A HEALTHY ENVIRONMENT, INC., COALITION TO PROTECT NEW YORK; JOHN

MARVIN; THERESE and MICHAEL FINNERAN; VIRGINIA HAUFF; and JEAN WOSINSKI,

Petitioners-Appellants, vs.

THE VILLAGE OF PAINTED POST; PAINTED POST DEVELOPMENT, LLC; SHELL WESTERN EXPLORATION AND PRODUCTION, LP,

Respondents-Respondents,

and THE WELLSBORO AND CORNING RAILROAD, LLC, Respondent-Respondent.

BRIEF OF AMICI CURIAE, GAS FREE SENECA; THE NATURAL RESOURCES DEFENSE COUNCIL, INC.; THE NEW YORK PUBLIC INTEREST RESEARCH GROUP, INC.; RIVERKEEPER, INC.; SCENIC HUDSON, INC.; AND THE W ATERKEEPER ALLIANCE, INC. IN SUPPORT OF PETITIONERS-APPELLANTS

Daniel Raichel, Esq. Susan J. Kraham, Esq. Natural Resources Defense Council Columbia Environmental Law Clinic 40 W. 20th St., 11th Fl. 435 W. 116th St. New York, NY 10011 New York, NY 10027 Telephone: (212) 727-4455 212-854-4291

Attorneys for Amici Curiae

On the brief: Nina Hart Isa Julson Surbhi Sarang Legal Interns Dated: September 3, 2015

CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 500.1(t) of the Rules of Practice for the Court of Appeals

of the State of New York, Proposed Amici Curiae Gas Free Seneca, the Natural

Resources Defense Council, Inc., the New York Public Interest Research Group,

Inc., Riverkeeper, Inc., Scenic Hudson, Inc., and the Waterkeeper Alliance, Inc.

(collectively, "Proposed Amici"), make the following disclosure: all of

incorporated Proposed Amici are domestic not-for-profit corporations-they have

no parents, subsidiaries, or affiliates.

TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................................................................... iii

IDENTITY AND INTEREST OF AMICI CURIAE ................................................. 1

ARGUMENT ............................................................................................................. 3

I. Citizen Participation and Review of Government Actions Are Fundamental to the Operation of SEQRA .................................................. 5

II. Requiring Citizens to Demonstrate a Special Harm to Establish Standing Conflicts with the Purpose and Structure of SEQRA .................. 9

A. The Special Harm Rule Creates Confusion and Has Been U sed to Deny Standing to Genuinely Harmed Petitioners Seeking Judicial Review of SEQRA Decisions .................................. 10

B. Petitioners' Case Illustrates the Problematic Results of Imposing a Special Harm Rule Decisions .......................................... 13

III. The Special Harm Rule Is Not Necessary to Discourage or Dispose of Meritless SEQRA Litigation .......................................... 16

A. Key Traditional Purposes of the Special Harm Rule Are Inapplicable in the SEQRA Context ............................................. 17

B. Unmeritorious SEQRA Litigation Is More Easily and Appropriately Disposed of Through Other Readily Available Means ...................... 21

IV. New York Stands Alone in Imposing a Special Harm Rule in the Context of Environmental Review .............................................. 25

TABLE OF CONTENTS

(cont'd)

A. Federal Standing Doctrine Does Not Impose a Special Harm Rule, and the Courts Accept that Plaintiffs with Widely Shared Injuries May Still Have Standing ............................... 25

B. Other States with "Little NEPA" Statutes Similarly Reject Imposing a Special Harm Rule ................................................ 28

CONCLUSION ................................................................................................... 31

CERTIFICATE OF SERVICE ............................................................................ 33

11

TABLE OF AUTHORITIES

Cases

532 Madison Ave. Gourmet Foods, Inc. v. Finlandia Ctr., Inc., 96 NY2d 280 (2001) ............................................................................................ 18

Akau v. Olohana Corp., 65 Haw. 383 (1982) .............................................................................................. 30

Arcia v. Fla. Sec y of State, 772 F.3d 1335 (11th Cir. 2014) ............................................................................ 26

Ass'nfor a Better Long Island, Inc. v. DEC, 23 N.Y.3d 1 (2014) ..................................................................................... 9, 12,22

Bd. ofEduc. of Ottawa Twp. High School Dist. 140 v. Spellings, 517 F.3d 922 (7th Cir. 2008) ................................................................................ 27

Buerger v. Town of Grafton, 235 A.D.2d 984 (3d Dep't 1997) ......................................................................... 12

Carsten v. Psychology Examining Com., 27 Cal. 3d 793 (1980) .......................................................................................... 29

Chinese Staff & Workers Ass'n v. City of New York, 68 N.Y.2d 359 (1986) ............................................................................................. 6

Coca-Cola Bottling Co. v. Bd. of Estimate, 72 N.Y.2d 674 (1988) ............................................................................................. 5

Comm. to Save the Rio Hondo v. Lucero, 102 F.3d 445 (10th Cir. 1996) .............................................................................. 27

Cord Meyer Dev. Co. v. Bell Bay Drugs, Inc., 20 N.Y.2d 211 (1967) ........................................................................................... 19

Dep't of Envt. & Nat. Res., 357 N.C. 640 (2003) .................................................................................... 28

E.ps. Ventures Corp. v. Foster, 71 N.Y.2d 359 (1988) ......................................................................................... 5, 8

III

Envtl. Information Ctr. v. Dep't of Envtl. Quality, 988 P.2d 1236 (2012) ........................................................................................... 29

Fed. Election Comm In v. Akins, 524 U.S. 11 (1998) ............................................................................................... 26

Friends of Tilden Park, Inc. v. District of Columbia, 806 A.2d 1201 (D.C. App. 2002) ......................................................................... 28

In re City Council of City of Watervliet v. Town Bd. of the Town of Colonie, 3 N.Y.3d 508 (2004) ............................................................................................... 5

In re Long Island Pine Barrens Soc y v. Planning Bd. of Brookhaven, 213 A.D.2d 484 (2d Dep't 1995) ........................................................................ .12

Leone v. Brewer, 259 N.Y. 386 (1932) ............................................................................................. 17

Little Joseph Realty, Inc. v. Town of Babylon, 41 N.Y.2d 738 (1977) ........................................................................................... 20

Long Island Pine Barrens Soc y v. Town Bd. of East Hampton, 293 A.D.2d 616 (2d Dep't 2002) ........................................................................ 11

Lujan v. Defenders of Wildlife, 504 U.S. 555. (1992) ............. ~ .............................................................................. 27

Marcus v. Vill. of Mamaroneck, 283 N.Y. 325 (1940) ...................................................................................... 18,19

Massachusetts v. E.P.A., 549 U.S. 497 (2007) ............................................................................................. 26

Matter of Har Enters. v. Town of Brookhaven, 74 N.Y.2d 524 (1989) ................................. , .................................................. 12,21

Matter of Town of Henrietta v Department of Envtl. Conservation, 430 N.Y.S.2d 440 (1980) ....................................................................................... 5

Matter of WEOK Broadcasting Corp. v. Planning Bd. of Lloyd, 79 N.Y.2d 373 (1992) ............................................................................................. 5

IV

Milwaukee Brewers Baseball Club v. Wisconsin Dep't of Health & Soc. Servs., 130 Wis. 2d 56 (1986) .......................................................................................... 28

Mobil Oil Corp. v. Syracuse Indus. Dev. Agency, 76 N.Y.2d 428 (1990) .................................................................................... 20, 22

Nat. Wildlife Fed. v. Agric. Stabilization & Conserv. Serv., 901 F.2d 673 (8th Cir. 1990) ................................................................................. 27

Nat 'I Ass 'n of Home Bldrs. v. Us. Army Corps of Engrs., 417 F.3d 1272 (D.C. Cir. 2005) ........................................................................... 27

Nev. Land Action Ass 'n v. Us. Forest Serv., 8 F.3d 713 (9th Cir. 1993) .................................................................................... 27

New World Radio, Inc. v. F.CC, 294 F.3d 164 (D.C. Cir. 2002) ............................................................................. 27

Niagara Recycling, Inc. v. Town Bd. of Town of Niagara , 83 A.D.2d 335 (4th Dep't1981) ........................................................................... 22

Ocean Advocates v. Us. Army Corps of Engrs., 402 F.3d 846 (9th Cir. 2004) ......................................................................... 25,27

People for Envtl. Enlightenment & Responsibility v. Minn. Envtl. Quality Council, 266 N.W.2d 858 (Minn. 1978) ............................................................................. 30

Rialto Citizens for Responsible Growth v. City of Rialto, 208 Cal. App. 4th 899 (2012) .............................................................................. 30

Rice v. Van Vranken, 132 Misc. 82 (Schenectady County Sup. Ct. 1928) ............................................. 18

Rosebud Sioux Tribe v. McDivitt, 286 F.3d 1031 (8th Cir. 2002) .............................................................................. 27

Save the Plastic Bag Coal. v. City of Manhattan Beach, 52 Cal. 4th 155 (2011) ......................................................................................... 29

Schulz v. Warren Cnty. Bd. of Supervisors, 206 A.D.2d 672 (3d Dep't 1994) ......................................................................... 12

v

Sierra Club v. Dep't of Transp., 115 Haw. 299 (2007) ............................................................................... 28, 29, 30

Sierra Club v. Morton, 405 U.S. 727 (1972) ...................................................................................... 25,26

Sierra Club v. Vill. of Painted Post, 115A.D.3d 1310 ........................................................................................... 13, 14

Society of Plastics Industries, Inc. v. County of Suffolk, 77 N.Y.2d 761 (1991) ................................................................................... passim

Southern Utah Wilderness Alliance v. Palma, 707 F.3d 1143 (lOth Cir. 2013) ............................................................................ 26

Sun-Brite Car Wash, Inc. v. Bd. of Zoning & Appeals of Town ofN Hempstead, 69 N.Y.2d 406 (1987) .................................................................................... 19, 20

Tourgeman v. Collins Fin. Servs., Inc., 755 F.3d 1109 (9th Cir. 2014) .............................................................................. 26

Trepanier v. City of Everett, 64 Wash. App. 380 (1992) ................................................................................... 28

Udell v. Haas, 21 N.Y.2d 463 (1968) ........................................................................................... 17

United States v. S. CR.A.P, 412 U.S. 669 (1973) ............................................................................................. 26

ViII. of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365 (1926) ............................................................................................. 17

Warren Cnty. v. State of N. C, 528 F. Supp. 276 (E.D.N.C. 1981 ) ....................................................................... 28

Whitridge v. Calestock, 100 Misc. 367 (N.Y.Sup.) .................................................................................... 17

Windels v. Envtl. Protection Comm 'n of Town of Darien, 284 Conn. 268 (2007) ................................................................................... 28, 30

VI

Wisconsin's Environmental Decade v. DNR, 115 Wis.2d 381 (1983) ......................................................................................... 28

Statutes

N.Y. Town Law § 268 .............................................................................................. 18

N. Y. Village Law § 7-714 ........................................................................................ 18

New York Envtl. Conserv. Law ( ............................................................................... 3

Regulations

6 N.Y.C.R.R. § 617.3(d) ............................................................................................. 6

6 N.Y.C.R.R. § 617.6 ................................................................................................. 7

6 N.Y.C.R.R. § 617.7(c)(1)(i) .................................................................................. 14

6 N.Y.C.R.R. §§ 617.7(d)(1)(iv) ................................................................................ 6

N.Y. Compo Codes R. & Regs. ( ................................................................................ 6

Other Authorities

DEC, SEQR - Environmental Impact Assessment in New York State,

http://on.ny.govIlL6L4H6 ..................................................................................... 8

DEC, The SEQR Handbook, 3rd Edition, 171 (2010) .................................... 8

Environmental Law, 50 Syracuse L. Rev. 609 (2009) ............................................................................. 9

Judicial Review Under SEQRA: A Statistical Study, 65 Alb. L. Rev. 365 (2001) .................................................................................. 13

Restrictive Standing in State NEPA and Land Use Cases: Have Some States Gone Too Far? ,26 No.5 Zoning & Planning L. Rep. 1 ............................................................... 25

Unlocking the Courthouse Doors: Removal of the Special Harm 'Standing Requirement Under SEQRA, 65 Alb. L. Rev. 421 (2001) ............................................................... 14,21,23,25

Vll

IDENTITY AND INTEREST OF AMICI CURIAE

Amici Curiae Gas Free Seneca; the Natural Resources Defense Council, Inc.

("NRDC"); the New York Public Interest Research Group, Inc. ("NYPIRG");

Riverkeeper, Inc.; Scenic Hudson, Inc.; and Waterkeeper Alliance, Inc. are a

diverse group of national, statewide, regional, and local not-for-profit and

nonprofit environmental organizations, all of which have a strong connection to

New York's environment and an interest in its health, history, and ecological well­

being.

Gas Free Seneca is a group of concerned citizens and 343 local business

owners seeking to protect Seneca Lake, its iconic landscape, and home-grown

businesses from the threat of invasive industrialization. NRDC is a national,

nonprofit membership organization headquartered in New York, and committed to

the preservation, protection, and defense of the environment, public health, and

natural resources. NYPIRG is a nonprofit research and advocacy organization

formed and directed by New York State college and university students, and its

program work focuses on environmental quality, public health and safety,

corporate accountability and social justice issues. Riverkeeper is a not-for-profit

corporation headquartered in Ossining, New York, dedicated to defending the

Hudson River and its tributaries and protecting the drinking water supply of nine

million New York City and Hudson Valley residents. Scenic Hudson is a regional,

1

nonprofit organization headquartered in Poughkeepsie, New York, and committed

to the preservation, protection, and defense of the environment, public health, and

economic sustainability of the Hudson River Valley. Finally, Waterkeeper Alliance

is a New York not-for-profit environmental organization, with its principal place of

business in New York City, and a global movement of on-the-water advocates who

patrol and protect over 100,000 miles of rivers, streams and coastlines in North and

South America, Europe, Australia, Asia, and Africa. Waterkeeper Alliance works

towards its vision through the grassroots advocacy of more than 250 member

organizations, including Riverkeeper and other member Waterkeeper organizations

located in and around New York State.

Additional information regarding Amici's long collective history of

involvement in a wide range of environmental issues across the state of New York

and their interest in this case is detailed in Exhibit A to Daniel Raichel' s

Affirmation in Support of Motion of Proposed Amici Curiae to File a Brief Amici

Curiae in Support of Appellant. Amici Curiae incorporate, by reference, those

statements of interest.

2

ARGUMENT

This case explores what a plaintiff must demonstrate to prove that he or she

has suffered harm sufficient to obtain standing to bring a challenge under the State

Environmental Quality Review Act ("SEQRA"), New York Envtl. Conserv. Law

("E.C.L.") §§ 8-010lto 8-0117. Specifically, this case deals with New York courts'

application of the "special harm rule," first adopted in Society of Plastics

Industries, Inc. v. County of Suffolk, 77 N.Y.2d 761 (1991). Under this rule, a

SEQRA petitioner must not only establish the traditional tenets of standing-that

he or she has suffered an "injury in fact" that is within the "zone of interests"

protected by the applicable statute-but must also demonstrate that he or she has

suffered an injury "different in kind or degree from that of the public at large." Id.

at 778.

Amici urge the Court of Appeals to eliminate this special harm rule, which is

contrary to this Court's frequent warning that standing principles should not be

overly restrictive or insulate government action from judicial review. Application

of the special harm rule is also contrary to the purposes of SEQRA, and is

unnecessary to limit cases unfit for judicial review. Rather than preventing

meritless SEQRA litigation, the application of the special harm rule has prevented

plaintiffs who have suffered real and cognizable injuries from obtaining judicial

relief. Moreover, New York's imposition of the special harm rule is inconsistent

3

with standing requirements under the National Environmental Policy Act

("NEPA"), as well as under other state environmental review laws.

4

I. Citizen Participation and Review of Government Actions Are Fundamental to the Operation of SEQRA

The "objective" of SEQRA is "to detennine 'whether or not a project or

activity should be approved or undertaken in the best over-all interest of the people

of the State. '" In re City Council of City of Watervliet v. Town Bd. of the Town of

Colonie, 3 N.y'3d 508,516 (2004) (citing Matter of WE OK Broadcasting Corp. v.

Planning Bd. of Lloyd, 79 N.Y.2d 373,380 (1992) (quoting Matter of Town of

Henrietta v Department of Envtl. Conservation, 430 N.Y.S.2d 440,445 (1980))).

Critical to achieving that purpose are the people themselves, whose participation

the statute employs to "inject environmental considerations directly into

governmental decision making." Coca-Cola Bottling Co. v. Bd. of Estimate, 72

N.Y.2d 674, 679 (1988) (citing E.C.L. § 8-0103(7); other citations omitted).

Indeed, SEQRA recognizes not only the right of the public to participate in the

environmental review process, but their responsibility to do so. See E.C.L. § 8-

0103(2).

SEQRA relies on citizen participation because it demands a "more than

theoretical" look at the significant real-world consequences of government actions,

E.FS. Ventures Corp. v. Foster, 71 N.Y.2d 359,371 (1988), specifically, the

"[s]ocial, economic, and environmental factors" that directly affect the lives of

New Yorkers. See E.C.L. § 8-0103(7). Accordingly, state actors must examine an

action's significant impacts to the human environment as well as the natural one,

5

giving due weight to both. See E.C.L. § 8-0105(6) (definition of "environment"

includes "objects of historic or aesthetic significance, existing patterns of

population concentration," and "community or neighborhood character"); N.Y.

Compo Codes R. & Regs. ("N.Y.C.R.R.") tit. 6, § 617.1(d) (stating "human and

community resources should be given appropriate weight" in the SEQRA review

process, which should include "a suitable balance of social, economic and

environmental factors"); Chinese Staff & Workers Ass'n V. City of New York, 68

N.Y.2d 359, 366 (1986) (by its "express terms," SEQRA "require[s] a lead agency

to consider more than impacts upon the physical environment"). Because a

meaningful understanding of these impacts cannot be gained in isolation, SEQRA's

regulatory framework requires that any agency leading the environmental review

of an action "make every reasonable effort to involve ... the public in the

SEQR[A] process." 6 N.Y.C.R.R. § 617.3(d).

The statute and regulations require opportunity for public input, and it is

actively solicited at every step of the SEQRA process, from the initial scoping

process to the final agency determination. See 6 N.Y.C.R.R. §§ 617.7(d)(1)(iv)

(conditioned negative declaration triggers mandatory public comment period);

617.8( e) ("Scoping must include an opportunity for public participation");

617.9(a)(3) (public notice and comment period required for issuance of all draft

environmental impact statements); 61 7 .11 (a) (public must be afforded "a

6

reasonable time period (not less than 10 calendar days)" to consider a final impact

statement before lead agency issues written findings statement"); 617 .l2(b )(3)

("All SEQR[A] documents and notices ... must be maintained in files that are

readily accessible to the public and made available on request. "); 617 .14(b)

(individual agency procedures must be "no less protective of ... public

participation" than Department of Environmental Conservation regulations). The

statute also acknowledges that the "purpose of a draft environmental statement"

("EIS")-the heart of the SEQRA review process-"is to ... inform the public ...

as early as possible about proposed actions that may significantly affect the quality

of the environment, and to solicit comments which will assist the agency in the

decision making process." E.C.L. § 8-01 09(4).

The information gleaned by this process is more than merely advisory. As

this Court has stated, "[t]he substantive component of SEQRA goes beyond its

Federal counterpart, NEPA, in its direction that an agency must choose the

alternatives that reduce adverse environmental effects." Soc'y of Plastics Indus.,

Inc. v. Cnty. of Suffolk, 77 N.Y.2d 761, 770 (1991) (citing E.C.L. § 8-0109; 6

N.Y.C.R.R. § 617.6; other citations omitted). As such, gathering public input on

the nature and severity of the likely significant social and environmental impacts of

a given action is critical to how SEQRA directs that government decision making

be conducted.

7

Public participation is also essential to ensure that government agencies

meet the requirements of SEQRA before they decide on future actions. While the

Department of Environmental Conservation ("DEC") "is charged with issuing

regulations regarding the SEQR[ A] process, DEC has no authority to review the

implementation of SEQR[ A] by other agencies." DEC, SEQR - Environmental

Impact Assessment in New York State, http://on.ny.gov/IL6L4H6 (last visited

September 2,2015). Accordingly, DEC's own SEQRA guidance admits that

"actual oversight and enforcement of SEQR[ A] falls to interested citizens and

groups." DEC, The SEQR Handbook, jrd Edition, 171 (2010) [hereinafter "SEQR

Handbook], available at http://on.ny.gov/1 baByGn. And this oversight is

consequential, as government action that ignores or fails to take practicable

measures to avoid potential significant environmental harms is unlawful under

SEQRA. See E.FS. Ventures, 71 N.Y.2d at 371 ("the statutory environmental

review requirements of SEQRA must be met and [the Court of Appeals] ha[s] held

that if they are not the governmental action is void and, in a real sense,

unauthorized" (citations omitted)).

8

II. Requiring Citizens to Demonstrate a Special Harm to Establish Standing Conflicts with the Purpose and Structure of SEQRA

As a general rule, plaintiffs seeking review of an administrative action must

demonstrate "an injury-in-fact and that the asserted injury is within the zone of

interests sought to be protected by the statute alleged to have been violated." Ass'n

for a Better Long Island, Inc. v. DEC, 23 N.Y.3d 1,6 (2014) (citing Soc y of

Plastics, 77 N.Y. 2d at 772-73. In its well-known Society of Plastics opinion,

however, this Court established an additional barrier for litigants seeking to enforce

compliance with SEQRA-namely, the need to demonstrate a "special harm" or

"injury that is in some way different from that of the public at large." Soc y of

Plastics, 77 N.Y. 2d at 774 (citations omitted). Although initially employed to

dismiss a suit by an industry trade group and a fiberglass manufacturer designed to

undercut the passage of environmentally protective local legislation, confusion in

the application of this rule in the lower courts has since "served to shut the

courthouse door to genuinely aggrieved citizens and allow[] violations of SEQRA

to thrive unchecked." Philip Weinberg, Environmental Law, 50 Syracuse L. Rev.

609,614 (2009).

This Court corrected some of this confusion in its recent decision Save the

Pine Bush, Inc. v. Common Council of City of Albany, where it upheld a challenge

to the environmental review of a zoning change for the construction of a hotel near

the Albany Pine Bush Preserve by a local organization dedicated to its

9

conservation. 13 N.y'3d 297 (2009). Although none of the organization's

members lived within a half mile of the preserve, the Court found that their

"repeated, not rare or isolated use" nonetheless demonstrated they were "more

likely [than the general public] to suffer adverse impact from a threat to wildlife"

there. Id. at 305. While this decision clarified the rights of citizens seeking to

ensure appropriate review of government actions affecting a common natural area,

the present case demonstrates that the special harm rule continues to create

confusion for lower courts examining the standing of citizens affected by a

common harm (such as noise) or harm to a resource that many people use equally

(such as drinking water).

A. The Special Harm Rule Creates Confusion and Has Been Used to Deny Standing to Genuinely Harmed Petitioners Seeking Judicial Review of SEQRA Decisions

The Society of Plastics Court explicitly declined to answer how the special

harm rule applies to litigants bringing "SEQRA challenge[ s] based on potential

injury to the community at large," SocyofPlastics, 77 N.Y.2d at 779, 781. The

Court also avoided the question in Save the Pine Bush. See generally 13 N.y'3d at

304-06. Nonetheless, lower courts commonly require litigants to demonstrate

special harm when challenging the review of actions threatening common injuries.

This requirement undermines the basic purpose of SEQRA because these are

10

precisely the kinds of actions that most critically require adequate review due to

their potential for large detrimental impact.

One need not look far to find the difficulty of requiring litigants in these

cases to demonstrate special harm. Does the fact that "[t]housands or millions of

people ... breathe the same air and drink the same water" make it impossible to

challenge review of a government action threatening to contaminate these large

common resources, provided it would do so uniformly? Michael B. Gerrard, Court

of Appeals Expands SEQRA Standing After an J8-Year Detour, 242 N.Y.L.J. at 2

(Nov. 27,2009). Indeed, the logical extension of such a rule is that a government

action becomes more shielded from citizen oversight as it grows more likely to

inflict widespread harm. Although one could imagine plaintiffs "especially

susceptible to the [relevant potential] pollution" still having standing under the

rule, the resultant disparity in legal rights between those citizens and others

generates odd outcomes. Id. For example, would inadequate review of a

municipal decision to weaken local air pollution regulations be challengeable only

by asthmatics, regardless of the population-wide impacts?

Of course, the special harm rule does not have to be applied in a manner that

precludes actions by citizens genuinely harmed or at risk of harm, but

unfortunately, this is exactly how the lower courts have applied it. See, e.g., Long

Island Pine Barrens Soc y v. Town Bd. of East Hampton, 293 A.D.2d 616 (2d

11

Dep't 2002), (denying standing to petitioners alleging potential harm to their

drinking water from proposed development in watershed lands); In re Buerger v.

Town o/Grafton, 235 A.D.2d 984 (3d Dep't 1997) (denying standing to petitioner

alleging project would cause flood damage and forest fragmentation where

construction had already turned the waters of the Taconic Lake murky); In re Long

Island Pine Barrens Soc y v. Planning Bd. 0/ Brookhaven, 213 A.D.2d 484 (2d

Dep't 1995), (denying standing to plaintiffs claiming harm in the form of damage

to an aquifer); Schulz v. Warren Cnty. Bd. o/Supervisors, 206 A.D.2d 672 (3d

Dep't 1994) (denying standing to property owners who claimed their use of water

for drinking, boating, fishing and swimming was damaged from runoff pollution

from a development).

Despite this Court's warning that standing principles should not be applied

"in an overly restrictive manner where the result would be to completely shield a

particular action from judicial review," Ass 'n/or a Better Long Island, 23 N.y'3d

at 6-7 (citing Matter ofHar Enters. v. Town o/Brookhaven, 74 N.Y.2d 524, 529

(1989)), this has been the experience in many SEQRA cases. Ironically, the overall

result of lower court application of the special harm rule has turned the state with

one of the most substantive and participatory environmental review laws into "one

of the most restrictive jurisdictions for environmental plaintiffs." Michael B.

12

Gerrard, Judicial Review Under SEQRA: A Statistical Study, 65 Alb. L. Rev. 365,

372 (2001).

B. Petitioners' Case Illustrates the Problematic Results of Imposing a Special Harm Rule

The particularities of the present case also demonstrate the troubles with

application of the special harm rule in practice. Here, the Fourth Department

rejected the standing of John Marvin, who the Supreme Court had determined was

the "only petitioner who had standing to bring the proceeding" based on the "sole

ground" of his '''proximity and [his] complaint of train noise newly introduced into

his neighborhood. '" Sierra Club v. Vill. of Painted Post, 115 A.D.3d 1310, 1311,

reargument denied, 118 A.D.3d 1369 (4th Dep't 2014) and leave to appeal

granted, 24 N.y'3d 908 (2014). Mr. Marvin, who lives roughly '''one-half block

from the railroad line, '" alleged actual, concrete injury from the operation of trains

heading to and from the challenged transloading facility- specifically, that he

heard "train noises frequently, sometimes every night [and that] .... [t]he noise

was allegedly so loud that it 'woke [him] up and kept [him] awake repeatedly.'"

Id. at 1312.

As the Fourth Department held, however, Mr. Marvin's ability to bring the

present suit has more to do with the geography of the Village of Painted Post than

the genuine harm he has experienced. Because the Village is relatively small-

with nearly all of the residences located within a couple thousand feet of "the rail

13

line at issue [that] runs through the entire Village"-"the noise from the moving

trains" affected not only Mr. Martin, but "many of the Village residents." Id.

Accordingly, regardless of how much Mr. Marvin actually suffered (or continues to

suffer) from this noise, his inability to suffer in a way "different in kind or degree

from the public at large" perpetually prevents him from challenging the Village's

review of the impacts he now experiences. Id. at 1313 (citing to Soc y of Plastics,

77 N.Y. 2d at 778).

Clearly, SEQRA is concerned with the detrimental effects of noise pollution,

see E.C.1. § 8-0105(6) (including "noise" in definition of "environment"), with

stronger review requirements for projects more likely to substantially increase

ambient noise levels. See 6 N.Y.C.R.R. § 617.7(c)(1)(i) ("substantial adverse

change" in existing noise levels considered indicator of significant adverse

impact). As such, a rule which denies standing to an aggrieved person merely

because the actual impacts from an action determined "not [to] result in any

potentially significant adverse impact on the environment" injure not only him, but

the entire village, stands in conflict with the purpose and structure of SEQRA. 1

Village of Painted Post, Resolution: Negative Declaration -Village of Painted

1 Amici also note that part of the Society of Plastics Court's rationale for the special harm rule relied on an incorrect belief that an earlier draft of SEQRA contained a citizen suit provision, later dropped by the legislature. In fact, the citizen suit "provision" was a separately numbered bill. See Joan Leary Matthews, Unlocking the Courthouse Doors: Removal of the "Special Harm" Standing Requirement Under SEQRA, 65 Alb. 1. Rev. 421, 441-42 (2001).

14

Post; Lease by Painted Post Development, 3 (Feb. 23, 2012), available at

http://bit.lyll NhDpsZ.

15

III. The Special Harm Rule Is Not Necessary to Discourage or Dispose of Meritless SEQRA Litigation

A major incentive for this Court's adoption of the special harm rule in

Society of Plastics was the desire to prevent "special interest groups or pressure

groups, motivated by economic self-interests," from "misus[ing] SEQRA" by

bringing "challenges unrelated to environmental concerns" in order to "generate

interminable delay and interference with crucial governmental projects." See 77

N.Y.2d at 774 (emphasis added). In Save the Pine Bush, the Court repeated these

concerns, see 13 N.Y. 3d at 306, 308, noting additionally that "even good faith

environmental challenges ... can be very burdensome." Id. at 306. With such

cases, the Court found that while "[s]triking the right balance" between those that

merit judicial review and those that do not "will often be difficult," the rule of

"requiring a demonstration that a plaintiffs use of a resource is more than that of

the general public-will accomplish that task better than the alternatives." Id.

(emphasis added).

Application of the special harm rule, however, has proven confusing for lower

courts and has prevented suit by genuinely aggrieved citizens with sincere

environmental interests. Further, as discussed below, this rule-which derives

from zoning and land use law-also evolved for purposes that are inapplicable in

the SEQRA context. Fortunately, the special harm rule is not necessary to employ

16

in the SEQRA context because simpler, more appropriate, and more efficient

alternatives exist to dispose of improper SEQRA plaintiffs.

A. Key Traditional Purposes of the Special Harm Rule Are Inapplicable in the SEQRA Context

The Society of Plastics Court attributed the special harm rule to land use and

zoning law, 77 N.Y. 2d at 774-75-whose origins, in tum, have connections to the

law of nuisance. See Vill. of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365,387-

88 (1926) (describing analogies to the "law of nuisances" as a "helpful aid ... [in]

ascertaining the scope of [a state's] zoning power"). Although zoning has long

been recognized as more than "just an expansion of the common law of nuisance,"

Udell v. Haas, 21 N.Y.2d 463, 469 (1968), part of its early constitutional

justification was the fact that certain otherwise lawful uses, if not separated

geographically, may generate nuisances. See Euclid, 272 U.S. at 394-95; Leone v.

Brewer, 259 N.Y. 386, 389 (1932) (citing Euclid).

Unsurprisingly then, when first reviewing citizen suits brought to enforce

local zoning ordinances, New York courts also referenced nuisance law. Perhaps

because zoning laws must be directed to further the "public health, safety, morals,

or general welfare," Euclid, 272 U.S. at 395, or because enforcement of such

violations were within the jurisdiction of a public zoning authority, New York

courts began requiring plaintiffs to show the same sort of "special harm" required

of private citizens bringing public nuisance cases. See, e.g., Whitridge v.

17

Calestock, 100 Misc. 367, 371 (N.Y.Sup.), aff'd 179 A.D. 884 (1st Dep't 1917)

(dismissing private suit to enforce zoning ordinance, but leaving open the

"possibility it could be held by analogy to ... public nuisance that an individual

showing special or peculiar injuries to himself may invoke the equitable

interposition of the court to restrain ... violation of the zoning resolution"); Rice v.

Van Vranken, 132 Misc. 82, 88 (Schenectady County Sup. Ct. 1928), affirmed, 225

App.Div. 179 (3d Dep't 1929), affirmed, 255 N.Y. 541 (1930) (upholding standing

of property owner to enforce zoning law against construction of 32 car parking

garage on adjacent lot because owner demonstrated special harm from structure,

which, although "not a nuisance in law .... [was] dangerously near one in fact").

This approach was also adopted by the Court of Appeals for all zoning cases,

although without explicit connection to the law of public nuisance. Marcus v. Vill.

of Mamaroneck, 283 N.Y. 325, 332-33 (1940) (citing to Rice, 132 Misc. 82).

Although Amici express no opinion on the utility of the special harm rule in

the zoning context, they do point out two key differences with application of the

rule in the SEQRA context. The first is that-as with public nuisances­

responsibility for enforcement of local zoning laws is generally entrusted to a

public authority. See N.Y. Town Law § 268; N.Y. Village Law § 7-714; 532

Madison Ave. Gourmet Foods, Inc. v. Finlandia Ctr., Inc., 96 NY2d 280, 292

(2001) (" [ a] public nuisance is a violation against the State and is subj ect to

18

abatement or prosecution by the proper governmental authority" (citation

omitted)). As discussed, however, there is no central authority charged with the

enforcement ofSEQRA. SEQR Handbook, supra at 12 ("there are no 'SEQR[A]

Police '" (emphasis removed)). Accordingly, in absence of citizen review and

oversight, ensuring proper implementation of SEQRA would rely solely on lead

agencies policing themselves. Because such agencies have an obvious interest in

not finding defects in their SEQRA review of particular actions, the special harm

rule pushes oversight of many environmentally consequential government

decisions into the realm of ineffective self-regulation.

Second, a core purpose of the special harm rule is to protect economic

interests in property-an interest not protected by SEQRA. Although zoning laws

may not be "enforced at the instance of the competitor in order to prevent or reduce

competition," Cord Meyer Dev. Co. v. Bell Bay Drugs, Inc., 20 N.Y.2d 211, 215

(1967), injury to the value of private property has long been recognized as the

touchstone for demonstrating a special harm in zoning cases. Id. at 216 ("If the

value of plaintiffs' real property had been reduced ... it might well be that this

would constitute such special damage as would entitle plaintiffs to injunctive

relief."); Sun-Brite Car Wash, Inc. v. Bd. a/Zoning & Appeals a/Town o/N

Hempstead, 69 N.Y.2d 406, 414 (1987) (standing to enforce zoning law justified

where "loss of value of individual property may be assumed"); Marcus, 283 N.Y.

19

at 333 (standing to enforce zoning law justified because "property belonging to

plaintiffs was materially damaged in pecuniary value"). It is this pecuniary

interest that demonstrates a zoning plaintiff is properly "pursuing more than [just] a

civic interest in law enforcement." Little Joseph Realty, Inc. v. Town of Babylon,

41 N.Y.2d 738,742 (1977). This type of injury is closer to, and indeed often

conflated with, injury in fact, see, e.g., id. at 741-42; Sun-Brite Car Wash, 69

N.Y.2d at 413 (treating "proof of special injury or in-fact injury" interchangeably,

and noting that requisite interest is only "a legally cognizable interest that is or will

be affected by the zoning determination"), which is why actual evidence of

diminished property values is generally sufficient to confer standing in zoning

cases, even where zoning violations or decisions may affect the property values of

many people. Cf Sun-Brite Car Wash, 69 N.Y.2d at 413-14 ("loss of value of

individual property" sufficient to confer standing presumed where plaintiff owns

property near area subject to zoning decision, excusing "proof of actual injury").

In contrast, "[t]o qualify for standing to raise a SEQRA challenge, a party

must demonstrate that it will suffer an injury that is environmental and not solely

economic in nature." Mobil Oil Corp. v. Syracuse Indus. Dev. Agency, 76 N.Y.2d

428,433 (1990) (citations omitted). Although, oddly, under current SEQRA

jurisprudence, property owners whose property is within or adjacent to an area

affected by a government action are excused from demonstrating special harm for

20

standing purposes. See Har Enterprises v. Town of Brookhaven, 74 N.Y.2d 524,

525 (1989) ("even though ... owner cannot presently demonstrate an adverse

environmental effect, it nevertheless has a legally cognizable interest"). Because

this exception to the special harm showing would apply even if an entire

municipality were rezoned, its present application creates a system that:

favors property owners and disadvantages the general pUblic ... . The people who will be most affected by most environmental insults-such as urban dwellers who breathe the same ambient air and drink the same water as millions of others-will be shut out of court, while adjacent property owners, whose interests may well be mostly economic, will still be able to sue.

Matthews, Unlocking the Courthouse Doors, 65 Alb. L. Rev. at 458 (quoting Michael Gerrard).

B. Unmeritorious SEQRA Litigation Is More Easily and Appropriately Disposed of Through Other Readily Available Means

Simpler alternatives to the special harm rule exist for efficiently disposing of

unmeritorious SEQRA litigation. Other existing prudential standing rules-such

as the injury in fact or zone of interests tests or principles of organizational

standing-are just as easily employed to dismiss litigation brought by unfit

plaintiffs. Appropriate application of these tools also more closely aligns with

SEQRA's emphasis and reliance on citizen participation.

The Society of Plastics case itself presents a good example of why the

special harm rule is not needed to reject suits by SEQRA plaintiffs pursuing

litigation solely for their own economic self-interest. As SEQRA is fundamentally

21

directed at "prevent[ing] or eliminat[ing] damage to the environment," E.C.L. § 8-

0101, this Court has long recognized that '" economic inj ury [alone] does not

confer standing to sue under SEQRA,' since it is not within the zone of interests

sought to be protected by the statute." Ass'nfor a Better Long Island, 23 N.Y.3d at

9 (citing Soc y of Plastics, 77 N.Y.2d at 777 (other citations omitted)); see also

Mobil Oil, 76 N.Y.2d at 433 (citing to Niagara Recycling, Inc. v. Town Bd. of

Town of Niagara , 83 A.D.2d 335,341 (4th Dep't1981), affd, 56 N.Y.2d 859

(1982)). Accordingly, the Society of Plastics Court had no trouble in dismissing

the claims by the lead plaintiff, "an association of plastics interests," both because

it's evident economic interests in the litigation were not "germane to [SEQRA's]

purposes," and because all of its purported environmental interests had "no relation

to the industry-wide purposes represented by the association." 77 N.Y.2d at 776.

The standing question therefore "depend[ edJ wholly" on Lawrence Wittman

& Co., a fiberglass manufacturer with an office in Suffolk County. Id. Here too,

however, otherwise applicable prudential standing rules were more than sufficient

to address the issue. As with the association, Wittman's alleged injuries from the

plastics ban "[t]hough couched as environmental ... by and large amounted to

nothing more than allegations of added expense it might have [had] to bear if

22

plastics products were banned," calling into question its ability to assert any harms

within SEQRA's zone of interests. 2 Id. at 777.

Of course, this Court has implied that a special harm rule may be useful not

only in disposing of "challenges unrelated to environmental concerns," but also for

determining when "good faith environmental challenges" should nonetheless be

dismissed on standing grounds. Save the Pine Bush, 13 N.Y.3d at 306 (quoting

Soc y of Plastics, 77 N.Y.2d at 774). Although Amici strongly believe that

SEQRA broadly supports the standing of truly good-faith environmental

challengers, at a bare minimum, the statute clearly endorses the rights of those

suffering or likely to suffer genuine environmental harm as a result of a

government action to ensure adequate SEQRA review of that action. Other

existing prudential standing limitations are more than adequate to meet this

minimum, and as a result, the apparent superfluity of the special harm rule

encourages courts to demand some sort of exceptional harm even when, as in the

present case, they are presented with petitioners who are personally and acutely

aggrieved.

Because this could not have been the intention of the Society of Plastics

Court, and because the purposes for which the special harm rule was first

2 Indeed, "[i]n their initial papers, [Wittman and the other] plaintiffs never directly claimed that they would suffer environmental harm; instead, their allegations focused mainly on economic harm." Matthews, Unlocking the Courthouse Doors, 65 Alb. L. Rev. at 431.

23

introduced in the SEQRA context are more easily and appropriately achieved by

other means, this Court should abandon it

24

IV. New York Stands Alone in Imposing a Special Harm Rule in the Context of Environmental Review

New York courts are alone in imposing a special harm rule in environmental

review cases. Joan Leary Matthews, Restrictive Standing in State NEPA and Land

Use Cases: Have Some States Gone Too Far?, 26 No.5 Zoning & Planning L.

Rep. 1 at text associated with footnote 93 (May 2003). Other states have expressly

rejected this approach, and there is no similar requirement for plaintiffs in federal

standing doctrine. Matthews, Unlocking the Courthouse Doors, 65 Alb. L. Rev. at

449. The remaining part of this section will discuss several different standing

regimes adopted by the state and federal courts, and will demonstrate that

imposition of the special harm rule in New York is unwarranted.

A. Federal Standing Doctrine Does Not Impose a Special Harm Rule, and the Courts Accept that Plaintiffs with Widely Shared Injuries May Still Have Standing

In cases involving NEPA-SEQRA's federal progenitor-plaintiffs are

likewise required to allege a concrete "injury in fact" lying within the "zone of

interests" protected by the Act in order to demonstrate compliance with the

relevant standing requirements. See Ocean Advocates v. Us. Army Corps of

Engrs., 402 F.3d 846,859 (9th Cir. 2004). As in New York environmental cases,

"a generalized 'interest' in the environment c[annot] confer standing," see Save the

Pine Bush,13 N.y'3d at 305 (citing to Sierra Club v. Morton, 405 U.S. 727, 734

(1972)), but unlike in our state courts, the federal courts have long "discard[ ed] the

25

notion that an injury that is widely shared is ipso facto not an injury sufficient to

provide the basis for judicial review." Sierra Club v. Morton, 405 U.S. at 738. As

the U.S. Supreme Court has stated generally, "[t]o deny standing to persons who

are in fact injured simply because many others are also injured, would mean that

the most injurious and widespread Government actions could be questioned by

nobody." Massachusetts v. E.P.A., 549 U.S. 497,526, n. 24 (2007) (emphasis

removed) (quoting United States v. S.C.R.A.P., 412 U.S. 669, 687-88 (1973)); see

also Fed. Election Comm In v. Akins, 524 U.S. 11, 24-25 (1998) (informational

injury related to voting rights, though widely shared, was still sufficient to confer

standing). Thus, federal NEPA plaintiffs need not demonstrate an injury different

in kind or degree from the general public.

While the dimensions of federal standing jurisprudence are constitutional as

well as merely prudential, federal courts have always sought to include those with

a "direct stake in the outcome." Sierra Club, 405 U.S. at 740. Accordingly, injury

in fact is often used as the lodestar of the constitutional standing inquiry (which

also requires showings oftraceability of the injury to the defendant's conduct and

redressability) in distinguishing between suits that should and should not be before

the courts. See, e.g., Arcia v. Fla. Sec y of State, 772 F.3d 1335, 1340 (11 th Cir.

2014); Tourgeman v. Collins Fin. Servs., Inc., 755 F.3d 1109,1115 (9th Cir. 2014);

Southern Utah Wilderness Alliance v. Palma, 707 F.3d 1143, 1155 (10th Cir. 2013);

26

Bd. of Educ. of Ottawa Twp. High School Dist. 140 v. Spellings, 517 F.3d 922, 925

(7th Cir. 2008); New World Radio, Inc. v. FCC, 294 F.3d 164,172 (D.C. Cir.

2002); Nat. Wildlife Fed. v. Agric. Stabilization & Conserv. Serv., 901 F.2d 673,

676-77 (8th Cir. 1990).3

Where plaintiffs are injured, but their "interests are so marginally related to

or inconsistent with the purposes implicit in the statute that it cannot reasonably be

assumed that Congress intended to permit the suit," Ocean Advocates, 402 F.3d at

861, the zone of interests test also serves to weed out unfit litigants. For example,

as with SEQRA, several federal courts have held that purely economic interests are

not protected by NEPA. See, e.g., Nat 'I Ass 'n of Home Bldrs. v. Us. Army Corps

of Engrs., 417 F.3d 1272, 1287-88 (D.C. Cir. 2005); Rosebud Sioux Tribe v.

McDivitt, 286 F.3d 1031, 1038-39 (8th Cir. 2002); Nev. LandActionAss'n v. Us.

Forest Serv., 8 F.3d 713, 716 (9th Cir. 1993).

In sum, federal doctrine rejects a special harm rule in NEPA cases due to

concerns about insulating federal action from review and the recognition that an

injury shared by a number of individuals is still a real injury. Even though these

courts also wish to preserve the ability to dispose of suits unfit for judicial review,

3 Further, the injury in fact test is generally relaxed in NEPA cases. See Comm. to Save the Rio Hondo v. Lucero, 102 F.3d 445, 449 (lOth Cir. 1996) (in NEPA cases "the litigant need not satisfy the requirement of immediacy for purposes of injury in fact because the federal project complained of may not affect the concrete interest for several years" (citing to Lujan v. Defenders of Wildlife, 504 U.S. 555, 572, n. 7. (l992)).

27

they have repeatedly reaffirmed that the current constitutional and prudential tests

are sufficient to identify these cases.

B. Other States with "Little NEPA" Statutes Similarly Reject Imposing a Special Harm Rule

No other state imposes a standing requirement for their "little NEPA" statute

as strict as the special harm rule in New York. Washington, D.C. and Wisconsin,

for example, generally adhere to federal standing doctrine. Friends of Tilden Park,

Inc. v. District of Columbia, 806 A.2d 1201, 1206-07 (D.C. App. 2002); Milwaukee

Brewers Baseball Club v. Wisconsin Dep't of Health & Soc. Servs., 130 Wis. 2d 56,

69-70 (1986) (citing Wisconsin's Environmental Decade v. DNR, 115 Wis.2d 381,

395 (1983)). Hawaii likewise models its standing requirements on the federal

constitutional standing inquiry. Sierra Club v. Dep 't of Transp., 115 Haw. 299, 319

(2007). Washington and North Carolina similarly require that plaintiffs show an

injury in fact that falls within the "zone of interests" of the statute. Trepanier v.

City of Everett, 64 Wash. App. 380,382-83 (1992), see N Car. Forestry Ass 'n v. N

Car. Dep't ofEnvt. & Nat. Res., 357 N.C. 640, 644 (2003); Warren Cnty. v. State of

N. c., 528 F. Supp. 276, 284-85 (E.D.N.C. 1981). And Connecticut's act expressly

grants standing to any person for protecting natural resources. Windels v. Envtl.

Protection Comm 'n of Town of Darien, 284 Conn. 268, 288-90 (2007).

Even in states where a showing of special injury is generally required, these

tests are often relaxed to accommodate suits by environmental plaintiffs acting in

28

the public interest. For instance, in California, plaintiffs pursuing litigation under

the state's Environmental Quality Act ("CEQA") must seek a "writ of mandate,"

normally requiring the showing of a particular "beneficial interest," that has been

"interpreted to mean ... [ a] special interest to be served or some particular right to

be preserved or protected over and above the interest held in common with the

public at large." Save the Plastic Bag Coal. v. City of Manhattan Beach, 52 Cal.

4th 155, 165 (2011) (quoting Carsten v. Psychology Examining Com., 27 Cal. 3d

793, 796-97 (1980). Regardless, under the state's "public interest exception,"

demonstration of a beneficial interest is unnecessary where a plaintiff seeks to

ensure government compliance with CEQA. Id. at 165-66; cf Mont. Envtl.

Information Ctr. v. Dep i of Envtl. Quality, 988 P.2d 1236, 1244-45 (2012)

(relaxing showing of special injury and upholding standing of plaintiffs to

vindicate environmental rights guaranteed by the state constitution threatened by

state regulatory exemption of certain discharges from nondegradation review in

mining permit process).

In rejecting a special harm rule, many of these courts have expressed

concerns about the injustice inherent in denying persons actually injured by

government action the ability to obtain redress for those injuries. See, e.g., Sierra

Club, 115 Haw. at 319 ("the 'touchstone' of. .. standing is 'the needs of justice' ..

. and that 'standing requirements should not be barriers to justice. '" (internal

29

citations omitted)); Windels, 284 Conn. at 288 ("[s]tanding is not a technical rule

intended to keep aggrieved parties out of court"); cf Akau v. Olohana Corp., 65

Haw. 383, 386-88 (1982) (rejecting special harm test in public nuisance case

because of injustice in "deny[ing] members of the public the ability to enforce the

public's rights when they are injured"). Similarly, many have also conveyed their

reluctance to adopt standing rules that insulate government actors from review of

their performance of affirmative obligations to fully consider the environmental

consequences of their actions. Thus, rigorous standing requirements, although

sometimes employed in other contexts, are often rejected in the context of the state

NEPA equivalent. See, e.g., Rialto Citizens for Responsible Growth v. City of

Rialto, 208 Cal. App. 4th 899, 915-16 (2012); Sierra Club, 115 Haw. at 320 ("in

the realm of environmental concerns[,] 'we have not have been inclined to

foreclose challenges to administrative determinations through restrictive

applications of standing requirements'" (internal citations omitted)); People for

Envtl. Enlightenment & Responsibility v. Minn. Envtl. Quality Council, 266

N.W.2d 858,866 (Minn. 1978) (discussing the "need for citizen vigilance" where

"express legislative direction" is involved).

30

CONCLUSION

The special harm rule introduced by the Court in Society of Plastics, as

interpreted and applied by the lower courts, has barred many New Yorkers from

ensuring adequate environmental review of the important governmental decisions

that threaten to harm their health and the environment, contrary to SEQRA's

statutory purposes and strong reliance on citizen participation. Although a partial

fix was provided by the Court in Save the Pine Bush, the rule continues to create

confusion, especially in cases involving a common harm or risk to a common

resource. The Court of Appeals now has the opportunity to eliminate the special

harm rule in favor of traditional prudential standing rules that will more simply and

as efficiently dispose of unmeritorious SEQRA litigation. As adopting this

approach is consistent with this Court's admonition against standing barriers that

effectively insulate government action from review, federal and other state

standing requirements in environmental review cases, and SEQRA itself, Amici

Curiae respectfully request that this Court do so.

31

32

Respectfully submitted,

niel Raichel, Esq., Natural Resources Defense Council 40 W. 20th St., 11th Floor New York, NY 10011-4231

Columbia EnvIronmental Law Clinic Jerome L. Greene Hall, Room 843 435 West 116th Street New York NY 10027

NEW YORK STATE COURT OF APPEALS

In the Matter of the Application of ) SIERRA CLUB, PEOPLE FOR A HEAL THY ) ENVIRONMENT, INC., COALITION TO PROTECT ) NEW YORK; JOHN MARVIN; THERESE and MICHAEL) FINNERAN; VIRGINIA HAUFF; and JEAN WOSINSKI, )

Petitioners-Appellants,

-against-

THE VILLAGE OF PAINTED POST; PAINTED POST DEVELOPMENT, LLC; SHELL WESTERN EXPLORATION AND PRODUCTION, LP;

Respondents-Respondents, and

) ) ) ) ) ) ) ) ) ) )

THE WELLSBORO AND CORNING RAILROAD, LLC; )

Respondent-Respondent.

STATE OF NEW YORK COUNTY OF NEW YORK ss.:

I, Brenda Eberhart, being duly sworn, say:

) )

AFFIDAVIT OF SERVICE BY OVERNIGHT MAIL

APL-2014-00266

I am over eighteen years of age and not a party to this action. On September

3, 2015, I served a copy of the foregoing Brief of Amici Curiae and associated

moving papers, by mailing true copies, enclosed and properly sealed in a postpaid

envelope, which I delivered into the exclusive care and custody of a delivery

service for delivery by overnight mail, correctly addressed to the following

recipients:

33

Richard J. Lippes, Esq. Rachel Treichler, Esq. Counsel for Petitioners-Respondents 1109 Delaware Avenue Buffalo, New York 14209 Tel: (716) 884-4800

Joseph D. Picciotti, Esq. John Mancuso, Esq. A. Vincent Buzard, Esq. Harris Beach PLLC Counsel for Respondents-Respondents Village of Painted Post, Painted Post Development, LLC, and SWEPI, LP 99 Garnsey Road Pittsford, New York 14534 Tel.: (585) 419-8800

John K. Fiorilla, Esq. CAPEHART & SCATCHARD, P.A. Attorneys for Respondent-Respondent 8000 Midatlantic Drive Suite 300S, P.O. Box 5016 Mt. Laurel, NJ 08054 Tel: (856) 914-2054

Sworn to before me this ~ day of September 2015

Notary Public

34

/7_ -~.~ /'-~---

Brenda Eberhart

ARZIKI MOLAH ADAMU Notary Public, State of New York

No. 01AD6290956 Qual~ in W( ,I chester County

Comml~il .1 ' . Oct. 15,2017

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