New York’s highest court, the Court of Appeals, will hear oral arguments shortly in the Atlantic Chapter’s lawsuit challenging the right of the Village of Painted Post to sell water for hydrofracking in Pennsylvania without conducting an environmental review of the impacts of the water sale. The case may set important precedents on standing and on whether the State Environmental Quality Review Act (SEQRA) applies to municipal bulk water sales.
Five local residents and two local environmental organizations—People for a Healthy Environment, Inc., and Coalition to Protect New York—joined the Sierra Club in bringing the suit in June, 2012. The petitioners are represented in the suit by attorneys Richard Lippes and Rachel Treichler.
In March, 2013, the trial court in Steuben County found that the village could not sell hundreds of millions of gallons of water from its municipal water system to SWEPI LP, an affiliate of Royal Dutch Shell operating in Tioga County, Pennsylvania, without conducting a review under SEQRA. Judge Kenneth Fisher determined that the surplus property exemption claimed by the village does not apply to bulk water sales. “[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.”
Shell and the village appealed Judge Fisher’s decision to the Appellate Division, Fourth Department. On March 25, 2014, the Fourth Department ruled in their favor based on standing. The appellate court found that none of the petitioners qualified for standing under SEQRA despite the fact that one petitioner lives 500 feet from the rail loading facility.
In their motion for leave to appeal, the petitioners urged the Court of Appeals to clarify the confusing array of standing decisions in cases involving adverse environmental consequences affecting a large number of people and to address the application of SEQRA to municipal bulk water sales.
The Court of Appeals granted review of the case last fall. The petitioners filed their brief on December 22, asking the high court to overturn the ruling of the appellate division on standing and urging the Court to affirm the ruling of the trial court that municipal bulk water sales are subject to review under SEQRA. SWEPI LP’s brief is due March 20 and the petitioners’ reply brief is due April 6. The date for oral argument has not yet been scheduled.
Rachel Treichler
What you can do
The costs of bringing a case before the Court of Appeals are substantial, and donations to the Chapter to help defray the costs of printing the record and the briefs on appeal are very welcome. To make a donation in support of our appeal, please send a check payable to “The Sierra Club Foundation.” Write on the memo line: “Fracking Fund: FC4356.” Please include a note with the check that this is to help with the Painted Post lawsuit. Send your contribution to: The Sierra Club Atlantic Chapter, PO Box 38225, Albany, NY 12203.
If you’d like to donate via credit card, please call Caitlin Pixley at our Albany office: 518-426-9144.