December 20, 2009 at 10:46AM
By Ned Sullivan
In 1963, a handful of concerned citizens founded Scenic Hudson, the organization I head, to halt a massive hydroelectric project from defacing Storm King Mountain, one of the most breathtaking landmarks along the Hudson River. Two years into the group's lengthy but ultimately successful battle, it won a major victory when the U.S. Court of Appeals ruled that Scenic Hudson had "standing" -- the right to present evidence in court that the project would harm the environment.
Below: Storm King Montain
Prior to this, federal licensing of mega-projects was pretty much pro forma, with testimony restricted to industry experts and the corporate bottom line being of chief concern. As a result of the "Scenic Hudson Decision," as the ruling is known, nature and economics now received equal footing in this process. Licensers were obligated to weigh the potential impacts power plants and dams would have on scenic and historic resources. Just as important, citizens were allowed a voice in articulating these impacts. The decision recognized that such treasures not only offer enjoyment but define America's heritage. Destroying Storm King's granite slopes, celebrated in some of the nation's first literature and painting, would be akin to dynamiting Mount Rushmore.
The Scenic Hudson Decision made big waves far beyond the Hudson. It provided the impetus for Congress to enact the 1969 National Environmental Policy Act, which requires an environmental impact review of all major federal projects, or those needing federal approval. Many state legislatures followed suit with similar laws regarding projects under their jurisdiction. It also encouraged the creation of myriad organizations dedicated to protecting our precious landscapes. For these reasons, the Scenic Hudson Decision is generally considered the birth of America's modern grass-roots environmental movement.
Sadly, over the years courts have steadily chipped away at citizens' right of standing, defining more and more narrowly those eligible to claim environmental harm from a development and limiting the legal recourse of groups like Scenic Hudson to defend irreplaceable natural assets. But an October 26 decision by New York's highest court has given us cause to rejoice.
In In the Matter of Save the Pine Bush v. Common Council of the City of Albany, the Court of Appeals ruled that those who use, study or enjoy a resource at risk are entitled to standing. A 1991 lower state court decision required those seeking standing to live in close proximity to a proposed development. Supported by Scenic Hudson and other groups, the nonprofit Save the Pine Bush had argued that plans to construct a hotel outside Albany's Pine Bush Preserve -- one of the world's best remaining inland pine barrens -- would destroy habitats of the endangered Karner blue butterfly and hence the enjoyment of its members, who don't live near the preserve but visit it regularly.
In granting standing to Save the Pine Bush, the court ruled that "people who visit the Pine Bush, though they come from some distance away, seem much more likely to suffer adverse impact from a threat to wildlife than the actual neighbors of the proposed development." Calling the 1991 standing decision "arbitrary," the court noted "it would mean in many cases that there would be no plaintiff with standing to sue, while there might be many who suffered real injury." (The new decision states that to achieve standing, groups must demonstrate their members have an interest greater than the general public in the environment at risk.) While no one can predict how this broadened interpretation will affect standing nationwide, New York Court of Appeals decisions often set legal precedent.
The Scenic Hudson Decision also provided the springboard for passage of federal and state legislation requiring government agencies responsible for licensing projects to weigh alternatives that avoid or mitigate harmful environmental impacts. In August, the U.S. Court of Appeals boldly upheld this cornerstone of environmental policy. In Green Island Power Authority v. FERC, the court annulled a Federal Energy Regulatory Commission (FERC) order to re-license a hydroelectric plant at Cohoes Falls, on the Mohawk River near Albany, and directed FERC to reconsider a proposal by a competing firm whose project would double the renewable energy generated at the site and permanently restore the flow of this awe-inspiring waterspout. (The current plant's operation shuts off the falls except during periods of high water.) Scenic Hudson had joined a coalition of environmental groups submitting briefs supporting this challenge.
The court stated FERC has an obligation under the Federal Power Act to consider reasonable alternatives to ensure its license meets the public interest. This ruling not only may ensure protection of New York's second largest waterfall (after Niagara), but gives hope to all of us working to conserve natural wonders throughout America.
One important local byproduct of the Scenic Hudson Decision was New York's State Environmental Quality Review Act (SEQRA), which requires that most projects or activities proposed by a state agency or local government, and all permits from these entities, undergo an environmental impact assessment through a proscribed process that includes substantial public involvement. While a SEQRA review can be time-consuming -- which is why some view it as an impediment to growth -- it often leads to improved designs that tread more lightly on the land. Recently I've been named to co-chair a state-appointed working group that will examine ways to make the SEQRA more efficient without compromising environmental protection or public input. The ultimate goal, whether in my backyard or yours, is striking a balance between economic development and conserving irreplaceable natural resources that leads to healthy, prosperous communities.