Tartaglia on Establishing Standing under SEQRA in Land Use Cases

In this Analysis, Alfred C. Tartaglia, Esq. examines Matter of Save the Pine Bush, Inc. v Common Council of the City of Albany, 2009 NY Slip Op 7667, 1 (N.Y. 2009), focusing on the "injury in fact" and "special harm" requirements which must be satisfied to establish standing under the State Environmental Quality Review Act (SEQRA), NY CLS ECL § 8-0101 et seq., and the manner in which those requirements apply to groups challenging land use determinations. He writes:

     Matter of Save the Pine Bush, Inc. v. Common Council of the City of Albany addresses the standing of environmental groups to challenge land use determinations under SEQRA. The Court specifically adhered to the "special harm" standing requirement earlier enunciated by the Court in Society of Plastics Industry, Inc. v. County of Suffolk, 77 N.Y.2d 761, 570 N.Y.S.2d 778, 573 N.E.2d 1034 (1991), which mandates that a party challenging agency action under SEQRA establish direct harm or injury which is in some way different from that of the public at large. The Court rejected the concept of "citizen standing" which would permit an environmental group to contest actions which injure the environment without having to demonstrate special harm. The decision was nevertheless "a clear victory" for environmental groups. The Court adopted an expansive definition of the concept of "injury which is in some way different from the public," holding that an individual who establishes that he or she enjoys a public natural resource, such as a park, more than most other members of the public is injured in a manner different from the public generally - the standard applied by the Appellate Division majority and urged by the New York State Department of Environmental Conservation, as amicus curiae. In so defining "special harm," the Court took an approach at odds with a growing view in the lower courts, which had held that, by definition, an injury to a public resource is an injury to the public itself, and thus not an injury specific to any individual person.

     . . . .

     The effect of Save the Pine Bush; proving that an injury is real, and different from that of the general public:  The Court in Matter of Save the Pine Bush, Inc. v Common Council of the City of Albany recognized that in future a factual challenge could well be raised to the environmental group's claims that it uses a resource in a manner or degree different from that of the public generally. In particular, whether a particular individual has standing may be challenged factually based on the frequency of the alleged use of the natural resource and the nature of that use. The burden of proof is on the plaintiff or petitioner. . . .

     Future cases may well focus on the manner and degree of proof required by an individual member of a group bringing a SEQRA challenge to establish that he or she in fact "frequently" and "repeatedly" uses a natural resource more than most other members of the public.

(citations omitted)

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