Unlocking the courthouse doors: removal of the "special harm" standing requirement under SEQRA.

• Author: Matthews, Joan Leary
• Position: State Environmental Quality Review Act - New York

1. INTRODUCTION

   With twenty-five years of experience with the State Environmental Quality Review Act (SEQRA) (1) in New York, environmental law practitioners and state and local government decision-makers now routinely expect that SEQRA will play a significant role in their work. When SEQRA went into effect in New York in 1976, (2) it represented a revolutionary change in how government agencies arrived at their decisions. (3) Prior to SEQRA, buildings were built, shopping centers were erected, and zoning laws were adopted without a requirement that the agencies that approved these projects and laws consider the resulting environmental impacts. With the passage of SEQRA, however, state and local government agencies must consider the environmental impacts of their decisions, and when those impacts may be significant consider alternatives and mitigation measures to reduce those impacts. (4)

   SEQRA was enacted in the shadow of its older sibling, the National Environmental Policy Act (NEPA). (5) Like SEQRA, NEPA required federal agencies to consider the environmental impacts of their decisions. (6) There are four key differences between SEQRA and NEPA, however, three of which New York can proudly trumpet as offering more protection for the environment. (7) With respect to the fourth difference, it can barely utter a squeak because this difference severely restricts litigants' access to the courts. (8)

   The first positive difference is that the definition of environment under SEQRA is broader than the definition under NEPA, thereby capturing more decisions and projects within its net. (9) The second apparent difference is that NEPA's language directs government agencies to prepare environmental impact statements (EISs) for projects significantly affecting the environment, (10) This is a lower standard than SEQRA's requirement that government agencies prepare an EIS when a project may have a significant effect on the environment. (11) The third difference is that, unlike SEQRA, NEPA does not require project sponsors to mitigate adverse impacts. (12)

   In contrast to these three seemingly positive differences for New York's statute, (13) a fourth difference between SEQRA and NEPA regarding the requirements for standing to sue to enforce the statute's provisions does not provide New York with any reason to celebrate. (14) This article will demonstrate that in large part plaintiffs must meet more stringent and preclusive standing requirements to maintain a claim under SEQRA than they must to maintain a claim under NEPA.

   Part II of this article discusses the 1991 New York Court of Appeals decision, The Society of the Plastics Industry, Inc. v. County of Suffolk, (15) which established today's restrictive standing requirement under SEQRA. (16) Part III discusses standing for plaintiffs raising NEPA claims and examines standing in other contexts of federal law. (17) Part IV examines the standing requirements of other states that have "little NEPA's." (18) Through a discussion of New York cases decided since 1991, Part V illustrates the harm wrought by the decision in Society of Plastics. (19) Finally, Part VI provides a conclusion and offers a recommendation for reform of the special harm standing requirement in New York. (20)

2. THE SOCIETY OF THE PLASTICS INDUSTRY, INC. V. COUNTY OF SUFFOLK

   The Society of Plastics case centered on the efforts of the New York State and Suffolk County Legislatures to protect Long Island's drinking water supply. (21) In 1983, the New York State Legislature adopted special landfill restrictions for Nassau and Suffolk Counties. (22) Potable drinking water on Long Island is primarily obtained from "a sole source aquifer," (23) referred to by the legislature as a "deep flow recharge area." (24) In enacting these landfill restrictions, the Legislature recognized that pollutants from landfills could jeopardize Long Island's crucial drinking water supply. (25)

   Responding to the State Legislature's directives (26) and keeping in mind a looming 1990 deadline for nonconforming landfills, (27) the Suffolk County Legislature adopted a local law in 1988 banning retail food establishments from serving or selling food contained within or accompanied by certain plastic containers and utensils. (28) Specifically, retail food establishments were required to package their food for sale to the consumer only in biodegradable packaging. (29) Further, they were expressly banned from packaging their food in polystyrene or polyvinyl chloride containers and from providing consumers with utensils made with those plastic chemicals. (30)

   The county held numerous hearings at which more than seventy persons testified in opposition to or in support of the proposed law. (31) Ultimately, the Suffolk County Legislature determined that the proposed local law, with its beneficial environmental purposes, would not result in any adverse environmental impact. (32) Thus, it issued a "`negative declaration'" (33) and did not prepare an environmental impact statement (EIS) to accompany the legislation. (34) The new law was intended to apply to all retail transactions as of July 1, 1989. (35)

   Various segments of the plastics industry challenged the new Plastics Law in a hybrid action and Article 78 proceeding, The Society of the Plastics Industry, Inc. v. County of Suffolk, filed in the New York State Supreme Court in Suffolk County. (36) The plaintiffs in this litigation were three trade associations and three plastics manufacturers; only one of the latter was based in Suffolk County. (37) They alleged five causes of action: (1) the Suffolk County Legislature violated SEQRA's procedural requirements in failing, inter alia, to prepare an environmental impact statement; (38) (2) the local law was preempted by the State solid waste management law and policy in Article 27 of the New York Environmental Conservation Law; (39) (3) it violated Equal Protection under the Federal and State Constitutions; (40) (4) it violated the Due Process Clause of the Federal and State Constitutions; (41) and (5) it imposed an undue burden on interstate commerce in violation of the Commerce Clause of the Federal Constitution. (42)

   As to the SEQRA cause of action, the plaintiffs claimed that the Suffolk County Legislature adopted the Plastics Law without taking a "hard look" (43) at adverse environmental impacts, and that, had the legislature done so, it would have required the preparation of an EIS. (44) In its answer, the county denied that it had violated SEQRA's procedures. (45) On its subsequent motion for summary judgment, the county argued that since the Plastics Law was beneficial to the environment, the county was not required to prepare an environmental impact statement. (46) The county further argued that it took the requisite "hard look," issuing the negative declaration only after determining that no negative adverse environmental impacts would result from the Plastics Law. (47) Given the ultimate disposition of the case by the New York Court of Appeals, (48) it is ironic that the county did not raise the plaintiffs' lack of standing in its answer, first raising the issue at oral argument on its motion for summary judgment. (49)

   In their initial papers, the plaintiffs never directly claimed that they would suffer environmental harm; instead, their allegations focused mainly on economic harm. (50) In the complaint, plaintiff, The Society of the Plastics Industry, Inc. (SPI), alleged that it was a non-profit trade organization in Washington, D.C., that represented all segments of the plastics industry. (51) Plaintiff Lawrence Wittman & Co., Inc. (Wittman) alleged that it manufactured a variety of plastic products, none of which were affected by the new local law. (52) Later in the litigation, these two plaintiffs submitted affidavits in which they alleged that they satisfied the requisite standing requirements by identifying a variety of environmental harms that would occur because of the Plastics Law. (53) At no time in the proceedings, however, did any of the plaintiffs expressly allege that they had an interest in the environment or express how the alleged environmental impacts would harm them. (54)

   As to the environmental harms that it eventually alleged, SPI claimed that the local law's requirements would cause the increased weight and bulk of paper products, thereby creating more waste destined for landfills. (55) SPI also argued that the increased waste would create more truck traffic, which would in turn damage county roads; cause an increase in air and noise pollution; contaminate groundwater thereby affecting drinking water and water for manufacturing processes; increase air and water pollution from production of paper products; and reduce energy content of paper substitutes that would deplete fossil fuel reserves and increase incineration and energy costs. (56)

   Wittman, through an affidavit submitted by its president, similarly claimed that the local law would result in an increased volume of solid waste in Suffolk County as well as increased truck traffic, air and water pollution, energy consumption from the manufacture of paper substitutes in Suffolk County and New York State generally, and the flow of toxic and hazardous leachate into Suffolk County aquifers. (57)

   A. The Suffolk County Supreme Court Holds That Plaintiffs Have Standing

   The Suffolk County Supreme Court held that the plaintiffs had standing on this "issue of great public significance." (58) Given that the plaintiffs ultimately alleged environmental harm in addition to their claims of economic harm, the court stated that "[t]he mere fact that the environmental injuries which the plaintiffs allege will cause economic injury to them as well does not foreclose them from challenging the defendants' actions." (59) The court further stated that "[s]ince the possible environmental effects of solid waste disposal are so far-reaching, those plaintiffs with a presence...