Delaware Supreme Court Clarifies Standing Requirements To Appeal Issuance Of A Coastal Zone Act Permit

In the case of Nichols v. State Coastal Zone Industrial Control Board et al. (Del. Supr. No. 190, 2013), the Delaware Supreme Court clarified that "any person aggrieved" for purposes of standing to appeal a final decision under the Delaware Coastal Zone Act must demonstrate an injury in fact and that such injury is within the zone of interest protected by the statute.

This case dealt with an application to develop and operate an electrical generation facility on lands in the northern part of the state located within a "coastal zone" identified in Delaware's Coastal Zone Act (CZA), 7 Del. C. §7001 et seq. In November 2011, Diamond State Generation Partners LLC (DSGP) applied to the Secretary of the Delaware Department of Natural Resources and Environmental Control (DNREC) for a CZA permit to develop and operate a facility to be known as the Red Lion Energy Center where DSGP planned to utilize fuel cells which would "chemically convert natural gas to electrical power." The Secretary of DNREC issued an Environmental Assessment Report respecting the project proposal, finding DSGP's application complete and noting the benefits of the project and that no hazardous wastes would be generated from the facility. In March 2012, the secretary of DNREC through a hearing officer held a public hearing to receive comment on the proposed permit. Nichols appeared at this hearing and raised objections to the permit request, questioning whether DSGP had disclosed all materials that could be hazardous and pointing out that DSGP had not included an Environmental Assessment Report from DNREC's Natural Heritage Program as required by regulations. The hearing officer issued a report recommending approval of DSGP's application and the secretary thereafter issued the CZA permit.

Nichols appealed the order granting the permit on various grounds to the State Coastal Zone Industrial Control Board (the Board). In response, DSGP, joined by DNREC, filed a motion to dismiss based on lack of standing, arguing that Nichols had failed to show that he was an "aggrieved" person under 7 Del. C. §7007(b). Nichols responded with two arguments: That he was acting on behalf of the "nesting birds and other flora and fauna, which were unable to appeal," and that his interest was the "public interest in a thorough, fact-based administrative determination before a Coastal Zone permit is issued." The Board held a hearing in June 2012 to address the appeal. At this hearing, Nichols...