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January 3, 2016

Appeals Court Finds Painted Post Water Sales Are Subject to SEQRA Review

On New Year's Eve, the Appellate Division, Fourth Department in Rochester decided in favor of the petitioners in the long-drawn out lawsuit challenging a bulk water sale agreement entered into by the Village of Painted Post.

The case, Sierra Club v. Village of Painted Post, 134 A.D.3d 1475 (4th Dep't 2015) involved a challenge by Sierra Club, People for a Healthy Environment, Inc., Coalition to Protect New York and five local residents to the decision of the Village to sell up to 1.5 million gallons of water per day from its municipal water system to SWEPI, LP, a subsidiary of Shell Oil Company. I worked with attorney Richard J. Lippes from Buffalo to represent the petitioners.

On remittitur from the court of appeals, the Fourth Department affirmed the decision of the trial court. The ruling of the appeals court was significant in three respects. First, the court ruled that the bulk water sale agreement was invalid because the Village failed to conduct a review of the impacts of the sales under the State Environmental Quality Review Act (SEQRA). The court rejected respondents' contention that the withdrawal and sale of surplus water from a municipal water supply is not an "action" for SEQRA purposes. Second, the Court invalidated the accompanying lease of Village land for construction of a rail-loading facility to ship water to Pennsylvania. The court invalidated the lease even though the Village had conducted an environmental review of the lease because the Village's review of the lease was segmented from its review of the bulk water sale agreement, and such segmentation is not allowed under SEQRA. Finally, the court ruled that the Susquehanna River Basin Compact does not pre-empt New York's SEQRA law and that the Susquehanna River Basin Commission was not a necessary party to the proceeding.

Sandra Steingraber gives an excellent overview of the court decisions in the Painted Post lawsuit in Ecowatch. See The People Win Over Shell in Fracking Water Withdrawal Case.

See Judge Enjoins Painted Post Water Sales and Court of Appeals Finds Petitioners Have Standing in Painted Post Case for more information about the trial court and court of appeals decisions in the case. The papers in the case are posted here.

Posted by Rachel Treichler on 01/03/16, updated 06/29/16.



Copyright 2016, Rachel Treichler



About NY Water Law

New York Water Law covers legal developments relating to water usage in New York and in jurisdictions that may be influential in New York. The author, Rachel Treichler, practices law in the Finger Lakes region.
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