Court of Appeals Expands SEQRA Standing After an 18-Year Detour

The most controversial decision in New York environmental jurisprudence is almost certainly Society of the Plastics Industry v. County of Suffolk (Plastics), in which the Court of Appeals ruled in 1991 that plaintiffs in suits under the State Environmental Quality Review Act (SEQRA) must show that they are affected differently than the public at large. In the 18 years since that decision, the New York Attorney General, the State Department of Environmental Conservation, the New York State and New York City bar associations, and numerous environmental groups all filed amicus briefs or issued reports calling for the reversal of the decision. Albany Law School held an all-day conference in 2002 on the subject. The State Legislature came close to amending SEQRA to effect a reversal. Yet the Court of Appeals rejected all entreaties to revisit the decision. At last, a 3-2 decision by the Appellate Division, Third Department, in 2008 meant an as-of-right appeal, so the issue could no longer be avoided. On Oct. 27, 2009, the Court of Appeals ruled in Save the Pine Bush Inc. v. Common Council of the City of Albany. While not explicitly overruling Plastics, five of the seven members of the high court made clear that the lower courts had taken an 18-year detour from what their predecessors had intended back in 1991. In so doing, the Court explicitly addressed one of the two major scenarios in which the old ruling was seen to have created an obstacle, and it showed the path to pleading around the obstacle in the other scenario