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
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
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
review of the lease because the Village's review of
the lease was segmented from its review of the bulk
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
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.