January 19, 2016
by Hal Smith
Following more than three years of litigation, a state appellate court has decided in favor of the Sierra Club and other petitioners in the Chapter’s suit challenging the decision of the Village of Painted Post to sell up to 1.5 million gallons of municipal water per day to a subsidiary of Royal Dutch Shell to frack gas wells in Pennsylvania.
In the last two months, two state courts have issued two decisions that could have sweeping repercussions in upstate communities that are selling, or may want to sell, municipal water.
First, on November19, the Court of Appeals, the state’s highest court, overruled a lower court, the Appellate Division (Fourth Department), which had decided that the Sierra Club and its fellow petitioners (other environmental groups and individuals) had no legal standing to sue Painted Post over violations of the State Environmental Quality Review Act (SEQRA).
The decision is precedent-setting on the issue of standing to sue under SEQRA — a legal concept that shelters many development projects from scrutiny. For more than 20 years, the Court of Appeals has ruled that only those who suffer special harm from a project are eligible to sue and force an environmental review. Persons who cannot show “a direct harm or injury that is in some way different from that of the public at large” are barred from going to court.
In this case, the Court of Appeals clarified that the injury suffered by a petitioner, while having to be different from the public at large, does not have to be unique, and the fact that other people suffer the same or similar injury does not preclude standing, explained Sierran and attorney Richard Lippes of Buffalo.
The Court of Appeals’ favorable decision on standing sent the case back to the Appellate Division to decide whether a SEQRA violation had occurred.
On New Year’s Eve, the Appellate Division issued its decision, unanimously affirming the decision of the original trial court judge, Supreme Court Justice Kenneth Fisher. In March 2013, the trial court ruled that Painted Post’s bulk water sale was not exempt from review under SEQRA. Judge Fisher determined that the surplus property exemption claimed by the village does not apply to bulk water sales, stating “[A] large volume daily withdrawal of a resource vital to the wellbeing of our state is not a mere surplus sale of Village property akin to selling a bus or fire engine no longer needed by the Village.”
Consequently, Judge Fisher invalidated the bulk water sale agreement and issued an injunction against further water sales.
The Court of Appeals decision awards costs to the petitioners — Sierra Club, People for a Healthy Environment, Inc., Coalition to Protect New York, and five local residents.
Painted Post may still sell water if it does a proper SEQRA review, said Treichler, who provided her services pro bono. “Our next step is to get involved in that review and get the village or DEC, depending on which is acting as lead agency, to consider how heavy withdrawals from one well in the aquifer impact all the water users in the aquifer. Since Painted Post’s municipal wells are at the deepest part of the aquifer, others will experience impacts from Painted Post’s excessive use before the village does.”
Painted Post draws its water from a shallow, rain-dependent aquifer that it shares with several communities, including the Town of Corning. The Corning aquifer is one of the state’s 18 primary aquifers and it is the only one of those18 that is “potentially approaching or has exceeded the sustainable limit” of the resource, according to the Susquehanna River Basin Commission.
Since the aquifer is rain-dependent, there is some concern that it could not withstand periods of drought resulting from growing climate instability.
“The amicus brief filed by the New York Council of Mayors in the case asks the Appellate Division to consider that it will be very costly and burdensome for New York municipalities to do SEQRA reviews before they enter into bulk water sales,” Treichler said. “This position strongly suggests that many municipalities are currently entering into bulk water sales without conducting SEQRA reviews.
“We encourage Sierrans across the state to check if their local municipalities are engaging in bulk water sales and to make sure that any new sales are made with SEQRA reviews.
“We also invite people to join the Chapter’s new water listserve to share ideas about water issues.” Sierrans who want to subscribe should contact Caitlin Pixley (caitlin.pixley@sierraclub.org).