On New Years Eve, the New York State Supreme Court, Appellate Division, Fourth Department issued an important ruling against the Village of Painted Post and Shell Oil Company and in favor of three environmental groups (Sierra Club; People for a Healthy Environment. Inc; Coalition to Protect New York), and five individual petitioners. Noted environmental attorneys Richard Lippes of Buffalo, and Rachel Treichler of Hammondsport, represented the petitioners. Joseph Picciottie from Harris Beach in Rochester represented the Respondents.
This ruling comes after New York State Governor Cuomo officially banned the practice of high-volume hydraulic fracturing for natural gas in New York State last year. The practice remains legal in Pennsylvania.
The suit was brought by the petitioners because the Village had made an agreement to sell municipal water to Pennsylvania hydro-fracking operations and had refused to conduct a proper New York State Environmental Quality Review Act (SEQRA) review. SEQRA is one of the most important tools that New York State citizens have to protect the environment and related quality of life issues.
In addition to the sale of municipal water, the Court decided that the Village’s lease of public land to a private operator for a water-loading facility could not have a separate or “segmented” SEQRA review. The ruling requires a consolidated rather than segmented review. This is important because the activities of the sale of the municipal water and the creation of a water withdrawal facility are considered as different stages of the same project.
The Appellate judges agreed with lower courts that the lack of a SEQRA review was inappropriate and that the village acted in an arbitrary and capricious manner when making the agreement to sell the public resources and declaring the sale to be an exempt action under SEQRA.
“On the merits, we agree with petitioners that the Village’s determination that the Water Agreement was a Type II action and not subject to SEQRA review was arbitrary and capricious. First, we reject respondents’ contention that the withdrawal and sale of surplus water from a municipal water supply is not an “action” for SEQRA purposes (see 6 NYCRR 617.2 [b] ). Second, we conclude that the Water Agreement constitutes either a Type I or an Unlisted action.”
“After determining that SEQRA review of the water sale agreement was required, the court addressed the issue of segmentation. Noting that the Village had conducted a SEQRA review of an agreement leasing Village land for a water-loading facility, the court determined that a consolidated review of both the water sale agreement and the lease agreement was required under SEQRA and that, because the Village had not undertaken a consolidated review, the Village resolutions to enter into both agreements should be annulled.
The court stated:
“[S]egmentation, i.e., the division of environmental review for different sections or stages of a project (see 6 NYCRR 617.2 [ag]), is generally disfavored (see Matter of Forman v Trustees of State Univ. of N.Y., 303 AD2d 1019, 1019). We thus conclude that the court properly determined, on the merits of the first cause of action, that all of respondent Village’s resolutions should be annulled and that a consolidated SEQRA review of both agreements was required.”
This is a very important victory for SEQRA and the citizens of New York State. Repercussions of this ruling will be felt throughout our region and most especially as Outer Harbor development decisions are made by New York State and the Erie Canal Harbor Development Corporation.
Read the Fourth Department’s ruling here.
Next Steps after Paris
As we ponder what is clearly a challenging bag of strategies to move forward after the conclusion of the COP21 Climate Conference, activist Sandra Steingraber, heavily involved in many of New York State’s natural gas issues, penned the following open letter to New York State residents. We are pleased to share this letter here:
Dear fellow New Yorkers,
I have recently returned from the climate negotiations in Paris, where I brought the story of our victory over the shale gas army here in New York to gatherings of climate activists from around the world.
The final agreement in Paris underscores the urgency of addressing climate change, and I am mindful of our unfinished battles here at home. New York has banned fracking, but related infrastructure for transporting and storage of fracked gas continues to threaten our communities, and the world, through its contribution to climate change. The message from Paris is clear: in order to meet the goal of 1.5 degrees, action must be taken swiftly. We simply cannot allow the building of any more fossil fuel infrastructure. Hence, I am writing to ask for your signature on an important petition against one such infrastructure project. Look for more such requests in the future from the many projects communities are fighting across New York State.
As we learned from our fight for the statewide ban on fracking, petition signatures are powerful! Sign here!
In the Finger Lakes region of New York, we are fighting plans to store dangerous, explosive liquefied petroleum gases (LPG, otherwise called butane and propane) in abandoned, unlined salt caverns beneath the shores of Seneca Lake. Like methane, butane and propane are the products of fracking.
The facility, located near Watkins Glen in the heart of New York’s wine country, poses unacceptable risks of catastrophic accidents, injuries, air pollution, and contamination of Seneca Lake, which is the largest body of freshwater within New York State and the drinking water source for 100,000 people. It would also undermine the economy of the entire Finger Lakes, which is built on the region’s beauty, tourism, and wineries.
Adding to these many dangers: transportation of the LPG to and from the salt caverns will send bomb trains rolling through Watkins Glen State park, putting at risk its 750,000 annual visitors. LPG tankers on a 175 ft-high train trestle over a gorge filled with hikers is a terrible combination.
It’s hardly surprising, then, that 31 Finger Lakes municipalities representing 1.2 million New Yorkers—have signed resolutions of opposition. Over 350 businesses have joined them. Thousands of citizen comments have been sent to the New York State Department of Environmental Conservation (NYSDEC) through the regulatory process. Gas Free Seneca, Seneca Lake Pure Waters Association, Seneca Lake communities, Finger Lakes Wine Business Coalition and two Schuyler County legislators presented expert testimony about the instability of the geologic caverns, risk assessment,hydrology, and impacts on noise, community character, and economic development.
The completeness of the permit application is currently under review by an administrative law judge. Once he decides that there are no further issues to be resolved—in an announcement that may be made any day now—the decision to permit or prohibit the gas storage facility rests with the NYSDEC Commissioner.
We now wish to make very clear to Governor Cuomo and the New York State Department of Environmental Conservation that New York should not take risks with LPG storage and transport any more than it did with fracking. Please join this effort.
All over the world, as we awake to the emergency of climate change, the refrain is “leave fossil fuels in the ground!” Aiding and abetting fossil fuel extraction by using our beloved lake as a warehouse for the products of fracking is exactly contrary to that message. A massive gas storage depot at Seneca Lake, owned by a Houston-based fossil fuel company, is contrary to the vision of those who gathered in Paris, and it is contrary to vision of Finger Lakes residents about what kind of future, energy solutions, and economic development we want. It’s a bad idea whose expiration date has passed. Wrong place, wrong time.
Please add your voice to our strong opposition by signing our petition. To safeguard our health, drinking water, and the economic vitality of the Finger Lakes, the New York State Department of Environmental Conservation must deny Crestwood’s proposed permit to store LPG at Seneca Lake.