Monday, May 11, 2009

ADK Club Pushes Environmental Access to Justice Act

The Adirondack Mountain Club (ADK) is asking the state Senate to pass the Environmental Access to Justice Act (S.1635, A.3423), which would allow individuals and organizations to bring environmental lawsuits without having to prove they have suffered an injury different from the harm to the general public. According to the ADK the Environmental Access to Justice Act would restore the original legislative intent of the state Environmental Quality Review Act (SEQRA). Passed in 1975, SEQRA was supposed to provide the public with a voice during the environmental review process for projects throughout New York State, but as denizens of town planning boards across the state know, SEQRA review of projects has become watered down by the influence of corporate and pro-development interests.

Under SEQRA, the public was supposed to have the right to petition the courts to review a state agency’s or local government’s compliance with the law’s environmental review requirements. According to “The Treatise on New York Environmental Law,” because no government agency is charged with ensuring compliance with the provisions of SEQRA, that responsibility “has fallen on the shoulders of individual members of the public, civic and environmental organizations and governmental bodies aggrieved or injured by an agency’s failure to comply with the requirements of the statute.” They have traditionally fought that battle in the courts.

But in 1991, in case known as Society of the Plastics Industry vs. Suffolk County, the New York Court of Appeals greatly curtailed the right to bring an environmental claim under SEQRA. The high court ruled that in order to have standing, or the right to bring a lawsuit, the plaintiff had to suffer a unique injury or damage that was different than the harmful impact suffered by all members of the public. That decision turned the intent of the legislation on its head.

“Without the ability of the public to seek a court review of the SEQRA process, there is no way to ensure that government has followed the law and properly reviewed the potential environmental consequences of a project,” according to Adirondack Mountain Club executive director Neil Woodworth. “If citizens have no right to sue when SEQRA provisions are ignored or compromised, there is nothing to stop development-obsessed government officials from ramming through ill-advised projects regardless of the cultural, social and environmental costs.”

Of the 16 states with environmental review statutes, New York has the most stringent standing requirements, and this continues to affect environmental cases according to the ADK which provided these examples:

In 2002, a state court ruled that the Long Island Pine Barrens Society and several of its members lacked standing to seek review of a development project in the Long Island Pine Barrens. The society claimed that the project would impact the water supply aquifer beneath the Pine Barrens, but the court ruled that the potential harm to the plaintiffs was no different than the potential injury to any member of the public. The society was shut out of court before it could prove an open and shut case of environmental harm to the eastern Long Island aquifer.

In 2002, a citizens group was denied standing in an attempt to block destruction of a row of 19th century buildings in the village of Catskill, Greene County. The historic buildings were demolished.

In 2007, the Basha Kill Area Association was denied standing to challenge approval of a 200,000-square-foot mushroom plant atop the Shawangunk Ridge in Sullivan County.

In 2008, members of Save the Pine Bush were denied standing to challenge an industrial development project in Clifton Park, Saratoga County, that threatens habitat of the endangered Karner blue butterfly.

The bill has passed in the Assembly and has been approved by the Senate Environmental Conservation and Codes committees. It awaits action by the full state Senate. The bill is sponsored by Sen. Antoine Thompson, D-Buffalo, and Assemblyman Adam Bradley, D-White Plains.

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