Painted Post Water Sale Case to be Heard by Court of Appeals

On October 23, New York's highest court granted Petitioners' motion for leave to appeal the case of Sierra Club v. Village of Painted Post. In their motion for leave to appeal, 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.

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 suit in June 2012 to challenge bulk water sales by the Village to SWEPI LP, an affiliate of Royal Dutch Shell drilling gas wells in Tioga County, Pennsylvania. I am working with attorney Richard J. Lippes from Buffalo to represent the petitioners in the case.

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 without conducting a review under SEQRA. Judge Kenneth Fisher determined that the exemption from SEQRA for sales of surplus property claimed by the Village does not apply to bulk water sales. The court stated “[A] large volume daily withdrawal of a resource vital to the well being 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.” The trial court found that Petitioner John Marvin had standing based on his proximity to the facility where water is loaded rail cars for shipment to Pennsylvania and his complaint of noise from the facility.

SWEPI 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 Petitioner Marvin lives 500 feet from the rail loading facility. The appellate court concluded that the noise impacts he experienced were not “different in kind or degree from the public at large.”

Petitioners brief is due December 22. The papers in the case, are posted on my law office website.

Posted by Rachel Treichler at 10/27/14 11:40 AM.