Pace Environmental Litigation Clinic Defends the Pine Bush

by Tom Ellis

ALBANY, NY: Todd Ommen and Robert O’Connor of the Pace Environmental Litigation Clinic (PELC) made a joint zoom presentation at the June 16th Save the Pine Bush dinner. Lynne Jackson hosted the event.

Mr. Ommen led off. He is the PELC managing attorney and supervises interns. He began practicing environmental law in 2007, joined PELC in 2016, after prior corporate litigation and a stint with the NY Attorney General.

He said there was little environmental law in the United States until the late 1960s and thus little environmental protection. Paint was daily dumped into the Hudson River in the sixties by a Tarrytown factory; locals could easily see different colors each day. Hudson River fishers were increasingly outraged at rising levels of pollution that killed fish, dirty water, and their ruined livelihood. They began meeting to plan a response. Bob Boyle told them about the little-known 1899 Rivers and Harbors Act that makes it illegal to pollute rivers, which has a provision granting litigation winners one-half the penalty the courts award. The Hudson River Fishers Association sued and won $2000, the first verdict of its type. In 1983 the fishers association became Hudson Riverkeeper.

He said a huge environmental awakening occurred in the US and worldwide beginning in the late 1960s. Many new federal laws were enacted; some contained provisions allowing people to bring citizen’s suits but few had funds to launch the litigation. Robert Kennedy, Jr. suggested Pace law students become litigators; Pace handled many Hudson Riverkeeper cases including enforcement actions. He said the Save the Pine Bush litigation is an expansion of PELC’s work.

He introduced Robert O’Connor, a recent Pace Law School graduate, who worked on the SPB case against Pyramid and the Town of Guilderland. Using a PowerPoint, Mr. O’Connor briefly described the three-part project: 19+ acres for apartments off Rapp Road, 16+ acres for a Costco store and gas station on Western Avenue, and an 11+ acres mixed use complex.

SPB brought the case to PELC prior to the Draft Environmental Impact Statement (DEIS) preparation. The Guilderland Planning Board (Planning Board) issued a positive declaration in August 2019 requiring preparation of a Environmental Impact Statement while saying they saw no significant environmental impacts.

He said the word “environment” is broadly interpreted under the State Environmental Quality Review (SEQR) Act.

During the first half of 2020, more than 600 comments were received by the Planning Board including some from PELC. Mr. O’Connor said the DEIS contained little scientific data and mistakenly asserted there is no Albany Pine Bush habitat on the sites, no adverse environmental impact to the pine bush, and the projects posed no adverse impacts to any endangered, threatened, or species of special concern.

SPB and PELC disagreed and hired four witnesses who wrote expert testimony on endangered species, bats, soils and climate, and that the methodologies used in the applicant’s site surveys were inadequate.

The Planning Board adopted the DEIS and its findings statements. SPB and PELC based its Article 78 filing on the applicant and Planning Board’s failure to address the comments received and to take a “hard look” at the sites and what they contained. PELC’s strategy was to build an evidentiary record, find expert and lay witnesses, exhaust available administrative procedures, and file within the statute of limitations (four months or 120 days) of Planning Board’s final determination of August 28, 2020. The Pace claim was filed on November 27th.

Mr. O’connor said it is important to narrow litigation to the strongest arguments which are that Planning Board’s adoption of the Final Environmental Impact Statement and findings was arbitrary and capricious, The Planning Board voted without having sufficient membership on the Town Board, and the decision to hold a public hearing for Site One was done in Executive Session, contrary to NYS law.

PELC anticipated counter arguments that its lawsuit was not timely filed and Planning Board took a hard look. The Pace strategy was to move for a stay pending the outcome of the Hart litigation brought separately by Guilderland residents seeking to block the project, and file an Amicus brief to aid the Hart litigants.

Mr. O”Connor said SPB and PACE and waiting for the HART court decision. [The Hart lawsuit was subsequently rejected by a unanimous decision of the Appellate Division of NYS Supreme Court.]

During the questions, comments, and answers, Mr. Ommen said the town stopped Pyramid’s tree cutting at the proposed Costco site “a little late” after it was nearly clearcut.

Lynne Jackson said that no matter which way Hart goes, the SPB “is still alive.” Mr. Ommen had “no comment” to Lynne’s mention of the irony of Pyramid seeking a fifty percent reduction in its Crossgates Mall property taxes while pursuing the triple-development.

Mark Schaeffer said developers “often do irreversible damage prior” to final decisions on projects.

Mr. Ommen said NYS laws do not have citizen suit provisions.

Lynne thanked Karen White and Grace Nichols for their superb work locating the four expert witnesses and said one defect in the Endangered Species Act is that someone cannot legally kill individual endangered species but they can destroy the species’s habitat damaging the species.

Mr. Ommen briefly described other litigation PELC has undertaken, often challenging agency decisions. These include suing the US Environmental Protection Agency for its failure to protect water in the NYC region and suing NYC for not reporting sewage overflows. PELC was part of the recent successful litigation against the NYS Department of Environmental Conservation after the state cut snowmobile trails in the Adirondacks. This case was won at the Court of Appeals which ruled DEC acted unconstitutionally and had adopted a too narrow interpretation of the “forever wild” clause contained in the NYS Constitution. He said PELC was active in the closure of the Indian Point nuclear electricity generating station and decommissioning.

Mr. Ommen said attorneys act within time constraints while courts often take their time rendering decisions. He said if the Hart decision goes against Hart (and SPB interests), PELC and SPB will await judgment in its SPB litigation. He said “we have a stronger case than Hart.”

Mr. O’Connor said he would begin working in the DEC’s general counsel office in September, to which Lynne joked “we might be suing you.” Mr. O”Connor said he is “hoping I can impact the agency in a positive way.”

So does Save the Pine Bush.