CITIZEN POWER ALLIANCE

The New York Court of Appeals has held that a person who can demonstrate greater enjoyment of a natural resource than the general public has standing under the State Environmental Quality Review Act (SEQRA) to challenge an action by a governmental entity which may threaten such a natural resource. In Matter of Save the Pine Bush v Common Council of the City of Albany, the Court held that both the individual petitioners and the organization had standing to challenge an action that allegedly threatened certain endangered species within the Pine Bush area. However, the Court also found that Petitioners had failed to prove their case on the merits as the City had examined the major potential impacts and the City "was not required to scrutinize every possible environmental issue, and the failure of the City's environmental impact statement (EIS) to discuss the possible impact of rezoning on certain rare species was therefore not a fatal flaw."

The project at issue involved a rezoning for a proposed hotel that would not be in a protected area but is near a protected area which is habitat for the Karner Blue butterfly. The draft scope of the proposed EIS included examination of the potential impacts on the Karner Blue butterfly but no other plant or animal species. In response to the draft scope a number of comments were submitted. Among the comments was one from the New York DEC which discussed the Karner Blue and pointed out that the Karner Blue is in a habitat which is known to support four other "rare or unusual species...Frosted Elfin butterfly, the Hognosed Snake, the Worm Snake and the Eastern Spadefoot Toad." The DEC asked that the investigation encompass those species as well.

The DEIS was prepared and included a discussion of the Karner Blue butterfly, including a report by a biologist who stated that repeated visits to the site failed to disclose any Karner Blue butterflies at the site. There was no mention of the other species raised in the DEC comments. The DEIS was commented upon by a number of agencies including the DEC. Other than what the court characterized as brief comments on the Frosted Elfin butterfly and a reference to the Adder's Mouth Orchid (which had not been mentioned previously) there was no mention of the other species previously raised by the DEC.

The report of the biologist was supplemented to respond to comments on the DEIS. He stated the Frosted Elfin butterfly is "'likely to occur in the same places as Karner blue butterflies'; that the plants on which it is known to feed 'are absent or rare in the Albany Pine Bush'; and that he observed no Frosted Elfins on the proposed hotel site. He also listed all the plants he observed growing on the site; the Adder's Mouth Orchid was not among them. Like the commenters on the DEIS, he said nothing about the Hognosed Snake, the Worm Snake or the Eastern Spadefoot Toad." Thereafter the FEIS was accepted and the zone change was approved.

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