State high court: Riverhead’s challenge of DEC regs can proceed

The state’s highest court has given a green light to Riverhead Town to pursue its claims of procedural flaws in the adoption by the State Department of Environmental Conservation of new regulations town officials say could bring development efforts at the Calverton Enterprise Park to a standstill.

In decision rendered today, the N.Y. Court of Appeals ruled that the town has “standing” to challenge the procedures followed by the DEC in adopting the 2010 regulations, which require a DEC permit for any activity that results in, or is likely to result in: the unintended killing, injuring or harassing of a protected species, or any adverse modification of its habitat, or any impairment of its essential behavior.

An Appellate Division panel in 2012 affirmed the trial court’s dismissal of the action in 2011, ruling that the town and its co-plaintiffs Jan Burman and the Association for a Better Long Island lacked “standing” to bring the action.

Standing — the right to initiate a lawsuit — requires the parties to demonstrate “an actual legal stake in the matter being adjudicated,” the trial court ruled. Because the petitioners/plaintiffs “have no pending applications for a permit under the regulations,” the court said they lacked legal standing to bring the lawsuit, according to the lower court’s decision. They could only claim “potential, speculative harm,” the court said.

The Court of Appeals disagreed, ruling that requiring a showing of actual harm, given the four-month statute of limitations for challenging the agency’s action, would erect “an impenetrable barrier” to any review.

“We have been reluctant to apply these principles in an overly restrictive manner where the result would be to completely shield a particular action from judicial review,” Chief Judge Jonathan Lippman wrote. All of the other six judges concurred in the opinion.

“Petitioners have asserted a concrete interest in the matter the agency is regulating, and a concrete injury from the agency’s failure to follow procedure,” the court said,

But the high court upheld the lower court’s ruling that the town lacks standing to move forward on its substantive claims, which the court said were “not yet ripe as
there has been no final agency action inflicting concrete harm.”

“Until petitioners submit a permit application and DEC imposes the requirements of the amended regulations to their detriment, allegations that they are affected by those requirements through an encumbrance on their property or the imposition of costs are
too speculative. There is, as of yet, no actual injury caused by the substantive provisions of the amended regulations,” the chief judge wrote.

The court also dismissed the town’s claim that the DEC issued a negative declaration on the impact of the new regulations without taking the requisite “hard look” required by the State Environmental Quality Review Act, because the town failed to allege any environmental harm. The town argued that the regulations will impede its ability to develop the Enterprise Park at Calverton. “As we have consistently held,” the court said, “‘economic injury [alone does not confer standing to sue under SEQRA’ since it is not within the zone of interests sought to be protected by the statute.”

The town’s case was argued before the Court of Appeals on Feb. 12 by Riverhead attorney Frank Isler, of Smith, Finkelstein, Lundberg, Isler and Yakaboski.