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Editorial Archives The Altamont Enterprise, November 5, 2009
Illustration by Forest Byrd.
Environmentalists have lost the battle but won the war.
Save the Pine Bush has advocated for the rare inland pine barrens since its inception in 1978. Indeed, the reason the Pine Bush Preserve exists as we know it today is because of the relentless push for preservation from this small band of committed environmentalists.
Last month, the state’s highest court handed down a decision that will have impact across New York for years to come. Save the Pine Bush had sued because six years ago the city of Albany changed zoning on a 3.6-acre parcel so that Tharaldson Development Company could build a hotel on pine bush land outside the protected park.
The city and the development company argued that Save the Pine Bush had no standing to sue. A residential landowner adjacent to the property is the only person who should have standing, argued Jeffery Jamison, representing the city.
The city relied on a 1991 Court of Appeals decision that the current court had a chance to clarify. The Society of Plastics Industry, Inc. v. County of Suffolk involved allegations of environmental harm from the manufacture of paper.
In that case, the state’s highest court held that in land-use matters, “the plaintiff, for standing purposes, must show that it would suffer direct harm, injury that is in some way different from that of the public at large.” In cases of environmental harm, the court said, the standing of an organization could be “established by proof that agency action will directly harm association members in their use and enjoyment of the affected natural resources.”
Judge Robert Smith, writing for the majority of five in the Pine Bush case, said, “However, Society of Plastics does not hold, or suggest, that residence close to a challenged project is an indispensable element of standing in every environmental case.”
Since members of Save the Pine Bush said that they used the Pine Bush “for recreation and to study and enjoy the unique habitat found there,” this meets the Society of Plastics test, the court said, by showing that the threatened harm would affect them differently than “the public at large.”
“Indeed,” Judge Smith wrote, “people who visit the Pine Bush, though they come from some distance away, seem much more likely to suffer adverse impact from a threat to wildlife in the Pine Bush than the actual neighbors of the proposed hotel development the owners and occupants of the nearby office buildings and shopping malls. The neighbors may care little or nothing about whether butterflies, orchids, snakes and toads will continue to exist on or near the site.”
The arbitrary rule that environmental harm can be claimed only by those who live nearby would often mean no one had standing to sue, while there might be many who suffer real injury, wrote Smith.
The court adopted a more liberal rule, similar to the one long established in federal courts. Smith cited, among others, the 1972 Supreme Court case, Sierra Club v. Morton, in which the nation’s highest court “held that a generalized ‘interest’ in the environment could not confer standing to challenge environmental injury but that injury to a particular plaintiff’s ‘[a]esthetic and environmental well-being’ would be enough.”
While Lynn Jackson, a founding member of Save the Pine Bush, commented on the “tremendous irony” in the Court of Appeals’s October decision because her group was granted standing but failed on the merits of its case against the city we find tremendous hope.
We feel confident that Save the Pine Bush will continue in its mission to preserve the globally rare pine barren. It currently has a suit underway over the most recent plan to expand the Rapp Road landfill, which sits on the pine bush.
But, beyond that, its victory on standing establishes a broad principle for other cases. Environmentalists who are involved in land-use issues, pollution control, or in preserving endangered species will have a chance to seek redress through our court system.
Clarksville lawyer Peter Henner, who is representing Save the Pine Bush in the Rapp Road case, wrote a paper, “Great Future in Plastics? The Judicial Repeal of Standing for Environmental Organizations in SEQRA Cases,” in which he describes how the State Environmental Quality Review Act, enacted by the legislature in 1975 to require environmental review and involve the public in the process, had been severely limited by the 4-to-3 Court of Appeals decision in 1991. Judge Stewart F. Hancock, writing for the minority, characterized the prospective impact of the holding in Plastics as a “new standing rule [which] will undeniably make review of a municipality’s compliance with SEQRA more difficult.”
Henner writes, “The Court’s decision on Plastics may have been intended to level the playing field by attempting to restrict economic entities from misusing SEQRA, but it has had the effect of locking genuine environmental interests, represented by neighborhood groups, environmental organizations, and municipalities out of the arena.”
Thanks to Save the Pine Bush pursuing its case against the hotel, that arena will now be open again.
We commend its members for their perseverance. The Albany Pine Bush Commission describes the preserve as “one of the best remaining examples of an inland pine barrens ecosystem in the world.” Were it not for the push for preservation from Save the Pine Bush, much more of the land would have been gobbled up by development.
“This gently rolling sand plain is home to a unique diversity of animals and plants, including 20 rare species and two rare natural communities,” continues the description on the website maintained by the Albany Pine Bush Preserve Commission, which was created by the state legislature in 1988. “Thousands of people visit the Albany Pine Bush Preserve each year for outdoor recreation, research, nature study and respite. The preserve positively and significantly contributes to the quality of life in the municipalities it crosses. Its 3,010 acres of protected Pine Bush land are a cherished resource to local communities.”
The acreage may well be cherished now but it was fought for, piece by piece, at a time when many viewed the barrens as a worthless wasteland.
We are reminded of an oft-quoted ideal espoused by anthropologist Margaret Mead: “Never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it is the only thing that ever has.”
Now, thanks to Save the Pine Bush, more small groups of thoughtful, committed citizens will have a chance to preserve pieces of our world before they are destroyed altogether.
Melissa Hale-Spencer, editor